BAL KRISHNA GUPTA AND ORS. Vs. BRIJESHWARI

JUDGEMENT

(1.) This is plaintiffs' second appeal from the concurrent decisions of the courts below dismissing their suit for the ejectment of the tenant. The plaintiff-appellants Bal Krishna Gupta and Smt. Kalawati alleged in their plaint that they were the owners of a portion of the house No. 85/52, Kooperganj, Kanpur, which was let out to the defendant respondent Brijeshwari Prasad in pursuance of an allotment order dated 5-5-55 that the rent of the accommodation was Rs. 8/- p.m. but the plaintiff did not make any payment for nine months from the date of the tenancy till 4-2-56, that on 15-2-56 the plaintiffs served a notice of demand but the defendant did not pay the arrears of rent; hence the suit for ejectment and recovery of arrears of rent.

(2.) The defendant resisted the suit. In his written statement he admitted that the plaintiffs were the owners of the accommodation but denied that he had made any default in payment of rent. According to him, the plaintiffs were unwilling to have him as a tenant from the very beginning and were anxious to get rid of him somehow. They had filed an application under Sec. 7-B of the U.P. Control of Rent and Eviction Act in response to which the defendant deposited a sum of Rs. 64.00 in the court of Munsif City Kanpur. The defendant claimed that this deposit amounted to payment and therefore the subsequent notice of demand served on him was invalid as no rent was due from him on the date when demand was made. Both the courts below held that the plaintiff's were not entitled to serve any notice of demand after the defendant had deposited the rent in court in the proceedings under Sec. 7-B and dismissed the suit for ejectment while decreeing in part the claim for arrears of rent. The plaintiffs have now come to this court in second appeal. I have heard learned counsel for the appellant and respondent at some length, and I am of the opinion that the decision of the courts below is erroneous. They have taken the view that the deposit made by the defendant before the Munsif in the proceedings under Sec. 7-B amounted to payment of rent to the landlord. In this both the courts were in error. I have perused the application made by the landlord under Sec. 7-B and the objection filed by the defendant both of which are on the record. The defendant filed an objection under sub-Section (vii) in which he alleged that the plaintiffs' title was not free from doubt and he relied on some decision of the Civil Court in earlier proceedings in support of his contention that the plaintiffs could not claim the rent without apportioning it. He admitted his liability to pay the rent but prayed that the court should hand over the amount which was being deposited by him "to the rightful owner after the court was satisfied regarding the title of the applicant to the portion of the house under allotment order."

(3.) It is clear that in treating the deposit made by the defendant along with his objection as payment or tender of rent both the courts below misconceived the nature of the deposit which is required to be made under sub-section (vii). After an application under Sec. 7-B has been made by the landlord the tenant has the option either under sub-Section (iv) to pay the amount demanded in the application or under sub-Section (vii) to resist the claim. If he elects to pay under (iv) the payment is un-conditional and the amount deposited by him is paid to the landlord in satisfaction of the arrears of rent. If on the other hand he decides to oppose the application, he may file an objection provided he deposits in court the amount claimed by the landlord or furnishes security to the satisfaction of court. Thus there is a vital difference in the nature of payment under the two sub-Secs. Under (iv) it is made to satisfy the landlord's claim but under (vii) to resist it. Payment under (vii) is the condition for opposing the claim and is in the nature of security demanded by the Court before permitting the tenant to resist the demand. It is not a payment to the landlord. The courts below failed to draw a distinction between payment under sub-Section (iv) and one under sub-Section (vii).