RAJ KISHORE BHATNAGAR Vs. HAKIM ONKAR NATH

JUDGEMENT

(1.) THIS is a defendants' appeal arising out of a suit for ejectment and arrears of rent, which has been decreed by both the Courts below. It has been found as a fact by the two Courts below that the defend ant was a tenant of the plaintiff in house No. 18/51, Maithan, Agra. The defendant has been found to have been a tenant of one portion of the accommodation on a rent of Rs. 25/- per month. The accommodation being an old construction, was governed by the provisions of U. P. Act No.IIIof 1947. The defendant was also a tenant of a room which was newly construc ted by the landlord, and the rent thereof was Rs. 15/- per month. THIS accommodation has been found not to be governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, as it was a post 1951 construction. From the record it has been established that the defendant wanted to regularise his possession and hence, he obtained an allotment order from the Rent Control and Eviction Officer dated 29-4-1970, which treated both the accommodations as one. Prior to the allotment order the tenant had been paying rent of the two separate accommodations separately though sometimes the receipt was issued to him for the total sum of Rs- 40/- showing that Rs. 25 was the rent for the old accommodation and Rs. 15/- was the rent for the new accommodation. After the allotment order the tenant offered to pay the rent of Rs. 40/-to the landlord treating the accommodation as one. The landlord refused to accept the rent unless it was paid separately for the two accommodations. According to the plaintiff after this refusal by the landlord, the defendant started making deposits under the provisions of Section 7-C of the U. P. (Tem porary) Control of Rent and Eviction Act. In this way more than three months' rent was deposited in the proceedings under Section 7-C of the Act. The landlord thereafter gave notice to the defendant demanding arrears of rent and terminating his tenancy in both the accommodations. In the present case we are concerned with the old accomm odation which was governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act. Admittedly, the tenant did not pay or tender to the landlord the rent along with the arrears within thirty days of the date of notice. After the expiry of thirty days, which is the period of notice of demand and termination of tenancy, the instant suit for the ejectment of the tenant and arrears of rent was instituted. The defendants' case that the accommodation was one unit of tenancy has been rejected by the two Courts below. The Courts below have decreed the suit of the landlord in respect of the accommodation governed by the U. P. (Temporary) Control of Rent and Eviction Act. It has been held by the two Courts below that the deposit under Section 7-C of the Act would not protect the defendant. Aggrieved by the order of the lower appellate Court, the defendant has filed the instant appeal. The lower appellate Court was of the view that as the papers showing the deposits under Section 7-C of the Act had not been filed by defendant it was not proved that any deposits had been made under the provisions thereof. The learned counsel for the appellant urged, and rightly so, that in view of the allegations made in the plaint itself, it must be taken that there was no dis pute on the part of the plaintiff that the deposits had been made under the provisions of Section 7-C of the Act. A perusal of the allegations made in the plaint indicates that in respect of the disputed period, the plaintiff himself set out the circumstances in which he refused to accept the rent from the defendant and the defendant made the deposits under Section 7-C. The lower appellate Court was, therefore, wrong in holding that the defendant could not get the benefit of the deposits made under Section 7-C of the Act, on the ground that the deposits had not been proved, is erroneous. Nevertheless, the question as to the validity of the deposits under Section 7-C of the Act has to be determined. The learned counsel for the appellant urges that in view of decision of a Full Bench of this Court in the case of Mohammed Bashir v. Azizul Quadar 1966 A.L.J. 677, it must be held that the word "paid" in sub- section (1) of Section 7-C should be read as "payable". The argument of the learned counsel is that when he offered a sum of money as a rent for the two accommodations, the landlord could not refuse to accept the amount of Rs. 40/- that was offered to him as rent and when he did so, the defendant was entitled to make deposits under the provisions of Section 7-C of the U. P. (Temporary) Control of Rent and Eviction Act. The learned counsel for the respondent urges that it has been found as a fact and is no longer disputed now that the defendant was a tenant of the two separate accommodations. He urges that it was not open to the defendant to compel the landlord to accept rent for the two accommodations, as one accommodation, and impose a condition on the landlord when the rent was tendered. The argument is that the rent was rightly and lawfully refused by the landlord when tendered by the defendant with the conditions imposed unilaterally by the defendant. A further submission of the leraned counsel for the respondent is that the papers and the deposits under Section 7-C of the Act have deliberately been withheld by the defendant, because they would have indicated that the deposits of Rs. 40/- per month was made for one tenancy which has now been found to be in fact two tenancies. The argument is that if these papers had been produced, they would have gone against the defendant appellant, as they would have indicated a deposit of rent towards a non-existent tenancy. The legal position is that there were two tenancies. The rent had to be offered by the defendant to the plaintiff separately for each tenancy. In any case, it was not open to the defendant to compel the landlord to take the rent as if there were only one tenancy. It was justified on the part of the landlord to refuse to accept the rent paid by the defendant. In the circumsta nces, when the landlord refused to accept rent tendered by the defendant with the condition unilaterally imposed by him, it was not open to the defen dant to make the deposits under Section 7-C (1) of the U. P. (Temporary) Control of rent and Eviction Act. It is unnecessary for the purpose of the decision of this case to decide as to what was said by the defendant-appellant in the application for making the deposits under Section 7-C of the Act. The application is not on the record and we are left in the realm of conjectures. It is, therefore, unnecessary to remand the matter, to the lower appellate Court for its determination of this question. In view of the fact that the condition precedent for making the deposit under Section 7-C(1) of the Act has not been found to exist, the defendant appellant cannot get the benefit of the deposits made there under. In the result, the appeal fails and is dimissed with costs. The interim order of this Court dated 24-3-1973 is vacated. The decree for eviction may be put into execution after three months from today.