SHRI RADHA KISHANJI MAHARAJ Vs. RA

JUDGEMENT

(1.) THIS is plaintiff's revision application against the judgment and order dated 24-8-1974 passed by the learned 1st Additional District Judge, Kanpur. Briefly stated the facts are that the plaintiff filed a suit for possession over the premises N-x 35/167 situate in Bengali Mohal, Kanpur on the ground that the defendant was in arrears of rent and did not pay the same in spite of notice of demand. It was further alleged that on 4-9-71 another notice of demand and termination of tenancy was issued but to no effect. The defendant opposite party contended that suit, inter alia, on the grounds that he did not commit any default. He also gave out that he used to pay rent to the Sarbarkariya of the plaintiff, but after sometime the latter pressed for enhancement and as he did not agree the former refused to accept rent. He remitted rent by money order which was also refused and then he started depositing rent under section 7-C of the U. P. Act III of 1947. In this manner he paid rent to the Sarbarakariya upto 31-5-70 and deposited rent thereafter under section 70. The learned trial court agreed with the contention of the defendant and came to the conclusion that no default was committed and dismissed the suit. The plaintiff, filed a revision under section 25 of the Small Cause Courts Act and the 1st Additional District Judge, Kanpur by a detailed judgment dismissed it, hence this revision application. The only point convassed before me is whether the defendant committed default in the payment of rent and is liable to eviction. There is no controversy that the defendant is a tenant at the rate of Rs. 3/- per month. According to the plaintiff, the rent was in arrear from 1-4-1970. The defendant-respondent's contention on the other hand has been that the rent was paid upto 1-5-1970. THIS contention of the defendant is borne out from receipts (paper nos. 8, 23-A, 24-A and 25-A). They show that the defendant had paid rent from 1-10-1969 to 31-5-1970 to the plaintiff's Sarbarakariya by means of the aforesaid receipts. From 1-6-1970 the defendant appears to have tendered rent to the plaintiff-revisionist's agent but in vain. Therefore, rent from 1-6-1970 to 31-8-1970 was remitted by money order. The defendant-opposite party filed a counterfoil of the money order to show that it was refused by the plaintiff-revisionist. Therefore, the defendant started depositing rent under section 7-C and he is alleged to have done so upto April 1973. The suit was instituted on 9-11-71. It is with regard to the deposit under section 7-C that a controversy has arisen. The learned counsel for the plaintiff-revisionist contends that on 1-1-1971 his client had sent a notice to the defendant expressing his willingness to accept rent and the defendant was not justified in depositing rent in court under section 7-C after receiving the said notice. The relevant paragraphs of this notice deserve to be reproduced. Para 2 reads: "That you have not paid any rent to my client since 1-4-1970. Hence you are hereby called upon to pay entire rent to my client within a month from the service of the notice else my client will treat you defaulter in payment of rent." Para 3 states: "That you are specifically directed to make payment of rent to my client through its Sarbarakaria, Smt. Budhmati else you will beUiable for the consequences." The plaintiff alleges to have sent this notice in pursuance of section 7-C (1) of U. P. Act III of 1947 which says: "When a landlord refuses to accept any rent lawfully said to him by a tenant in respect of any accommodation the tenant may in the prescribed manner deposit such rent and continue to deposit any subsequent rent which becomes due in respect of such accommodation unless the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept." The aforesaid provision makes it absolutely clear that if a landlord refused to accept rent a tenant was entitled to deposit it under section 7-C and to continue to deposit subsequent rent also in order to save his eviction but if the landlord communicated his willingness to accept rent by a notice in writing, the tenant had to suspend depositing it in court and had again to offer it to the landlord or his agent. If the latter had again refused to accept, it could be deposited under section 7-C and not otherwise. In the instant case para 3 of the aforesaid notice makes it clear that the plaintiff-revisionist had communicated to the defendant opposite party a clear willingness to accept rent. The learned Additional District Judge was swayed by the observation made in the case of Sardar Manni Lal v. Pt. Har Prasad and others (1) reported in which it was held that willingness of the landlord contemplated in section 7-C is for future rent. When a notice in writing is sent by a landlord to the tenant signifying his willingness to accept the rent which has already fallen in arrears, it will not mean that he will accept the rent which will accrue in future. To be of real benefit to the landlord and the tenant the rent which will become due in future also must be signified to be acceptable by the landlord. It was further held that only the notice in writing signifying the willingness of the landlord to accept rent would be the proper notice under sub-section (1) of section 7-C of U. P. Act III of 1947 which informs a tenant that all future rent would also be acceptable by the landlord and the tenant need not, therefore, take recourse to the machinery of law for depositing in court. In my judgment much capital could not be made out of this case because the contents of para 3 of the notice dated 1-1-19/1 clearly refer to the rent that was to fall due in future. THIS is borne out by the fact that on 4-9-1971 when a second notice was given by the landlord he had demanded rent only from 1-1-71. Paragraph 3 clearly referred to rent that was to fall due in future and willingness was expressly- communicated. Besides it, in an earlier case Mohd. Daud Khan v. Haji Ghulam Rasool(2) Hon. Ojha, J. had held that a tenant is entitled to make a deposit under section 7-C till the landlord expresses his willingness to accept it by means of a written notice. Again this question was considered in the case of Madan Singh Rawat v. Rameshwar Dayal Saxena (3). It was observed: "A tenant can deposit rent due to the landlord under section 7-C only after the landlord has refused to accept the rent and till he signifies by notice in writing to the tenant his willingness to accept the same. Where, therefore, the landlord had signified his willingness to accept the rent and even asked the tenant not to deposit the same in court under section 7-C any deposit made by the tenant thereafter is not valid in the eye of law." In the instant case the position is clear that on 1-1-1971 the plaintiff had expressed an unequivocal willingness to accept rent through its Sarbarakariya, Smt. Rudhmati. The defendant received this notice on 25-2-1971 and thereafter he should have stopped depositing rent under section 7-C and should have made an effort to pay to the Sarbarakariya of the plaintiff. In his statement on oath the defendant tried to say that after receiving the notice dated 4-9-1971 he had gone to offer three months' rent to the Sarbarakariya but it was not accepted by her. His own statement shows that no attempt was made after receiving the notice dated 1-1-1971. None in whose presence the tender may have been made by him and refused by the Sarbarakariya was produced. On the other hand the Sarbarakariya appeared and stated on oath that the defendant never came to offer any rent to her. In these circumstances the learned lower courts were wrong in holding that the defendant had gone to tender rent to the Sarbarakariya after receiving the notice of willingness to accept rent from the plaintiff. Therefore, the deposit made by the defendant under section 7-C after receiving the notice on 1-1-1971 was not justified and cannot ensure to his benefit. If it is ruled out of consideration there is no manner of doubt that he is liable to ejectment. The revision application is allowed and the judgment and decree passed by the learned Additional District Judge are set aside. The plaintiff revisionist's suit for eviction of the defendant-respondent from the premises in suit and for the recovery of Rs. 2 60 as arrears of rent and pendente lite and future damages at the rate of Rs. 3/- per month is decreed with costs on parties. The defendant opposite party is granted three months' time to vacate the premises.