Bhanupratap Agrawal vs Rupchand and another

H.G. Misra, J.—This is a revision u/s 115 of the Code of Civil Procedure, preferred by the plaintiff (landlord) against an order dated 21-1-77 passed by the Third Civil Judge Class II, Gwalior, in civil Suit No. 189-A/72, whereby the deposit made with the Rent Controlling Authority by the defendant (tenant) has been held to be invalid yet 15 days'' time has been given to deposit rent upto the date of the order in the Court and defendant has been further directed to go on depositing future rent after that date.

The facts essential for the purposes of this revision are asunder:--

(a) The plaintiff-applicant has brought a suit for ejectment u/s 12(1)(a), 12(1)(c) and 12(1)(h) of the M.P. Accommodation Control Act, 1961, (hereinafter referred to as the Act). A demand-cum-quit notice was served by the plaintiff-applicant on the defendant-non-applicant on 8-2-72, whereby rent at the rate of Rs. 70/- per month w.e.f. 1-11-71 was demanded. The summons of the suit was served on the defendant on 17-9-72. An application was moved on 9-10-72 by the defendant-non-applicant u/s 13(1) of the Act. The defendant alleged that the rent due from 1-11-71 was tendered by Money Order to the plaintiff (landlord) on 20-12-71, but it was refused. This led to the filing of an application on 25-1-72 by the defendant (tenant) u/s 25 of the Act before the Rent Controlling Authority, Gwalior, the case number where of is 126/ 71-72x90x1. Thereafter, rent was again sent to the landlord by Money Order on 17-3-72 after service of demand-cum-quit notice on the defendant, but the same was refused The non-applicant claiming to have made the deposit of rent with the Rent Controlling Authority upto 30-9-72, made a player in the aforesaid application to the effect that the rent so deposited by him with the Rent Controlling Authority upto September, 1972 should be deemed to be a deposit for the purposes of section 13(1) of the Act. The defendant also expressed readiness to deposit future rent in the Court after passing of an Order by the Court to that effect. This application was opposed by the landlord but it remained pending till 18-10-76 when the trial Court ordered postponement of its decision. This led to the filing of a revision No. 486/77. This revision was allowed by an order of this Court dated 18-10-77 whereby the trial Court was directed to decide the application of the defendant dated 9-10-72. ''Thereafter, by the impugned order the aforesaid application has been decided and it has been held by the trial Court that-

(a) the rent deposited by the defendant tenant with the Rent Controlling Authority cannot be deemed to be a deposit for the purposes of section 13(1) of the Act and the same cannot be treated to be a valid deposit. It is not shown to have been made within the limitation of 21 days prescribed by section 26 of the Act;

(b) The Rent Controlling Authority cannot be treated to be ''Court'' within the meaning of section 13(1) of the Act; and,

(c) the defendant should deposit rent for this period within 15 days from the date of the impugned order and should go on depositing rent due in accordance with the provisions of section 13(1) of the Act. If the defendant wants, he may withdraw the rent deposited by him with the Rent Controlling Authority.

Aggrieved by this order, the present revision has been filed by the plaintiff-landlord.

Shri K. L. Mangal, learned counsel for the plaintiff applicant, has contended that the trial Court had no jurisdiction to grant time to the defendant to deposit rent because no prayer to that effect was made in his application dated 9-10-72. Shri N.K. Jain, learned counsel for the defendant-non-applicant, argued in support of the impugned order and contended that (i) the application raises a dispute within the meaning of section 13(2) of the Act; (ii) the absence of a prayer to give time to deposit rent did not deprive the trial Court of the power to grant time; (iii) that the exclusive jurisdiction was with the Rent Controlling Authority to adjudicate upon the question whether the deposit u/s 25 of the Act read with section 26 thereof operates as valid discharge of liability of the defendant for making payment of the rent to the plaintiff (landlord); and, (iv) that no interference in revision should be made in view of the fact that the case does not fall within any of the provisos introduced in section 115(1) by the Amendment Act No. 104 of 1976.

After having heard the learned counse for both the parties, I am of the opinion, that this revision deserves to be allowed.

The first question in the case is; ''whether the Civil Court trying ejectment suit can decide the question of validity of a deposit of rent by the defendant (tenant) to have been made with the Rent Controlling Authority in the proceedings u/s 25 of the Act ? Suffice it to say that the only bar on the jurisdiction of a civil Court has been enacted by section 45 of the Act, which runs as under:--

Jurisdiction of Civil Courts barred in respect or certain matters.-

(1) Save as otherwise expressly provided in this Act, no Civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any accommodation to which this Act applies or to any other matter which the Rent Controlling Authority is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Rent Controlling Authority under this Act shall be granted by any Civil Courts or other authority.

(2) Nothing in sub-section (1) shall be construed as preventing a Civil Court from entertaining any suit or proceeding for the decision of any question of title to any accommodation to which this Act applies or any question as to the person or person who are entitled to receive the rent of such accommodation.

(Emphasis supplied)

The trial Court while trying ejectment suit- was called upon to decide the aforesaid question by application purported to have been made by the defendant u/s 13(1) of the Act. The Rent Controlling Authority is not empowered by or under the Act to decide such a question, Therefore, the Civil Court has jurisdiction to decide the matter and section 45 of the Act does not bar its jurisdiction.

The defendant has by his application dated 9-10-72 prayed simply that his obligation to deposit rent, already deposited with the Rent Controlling Authority, should be dispensed with section 13(2) of the Act runs thus :--

When tenant can get benefit of protection against eviction-

(1)...

(2) If in any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the Court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of sub-section (1) till the decision of the suit or appeal".

(3).........etc.

The words ''any dispute'' occurring in the aforesaid provision are not unqualified. They are followed by the words as to the amount of rent payable by the tenant''. As such the application of the defendant cannot be treated as to raise a dispute within the contemplation of section 13(2) of the Act. Even otherwise the dispute must be effectively raised. In view of the facts stated above and in the view of the law, I have taken the aforesaid application of the defendant was not effective to raise any dispute within the meaning of section. 13(2) of the Act and the provisions of section 13(1) of the Act were not arrested and their operation was not suspended.

Before deciding other questions raised by this revision it appears necessary to analyse the provisions contained in section. 24, 25 and 26 of the Act, They run as under : --

Receipt to be given for rent paid.--(1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable.

(2) Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent, a written receipt for the amount paid to him, signed by the landlord or his authorised agent.

(3) If the landlord or his authorised agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Rent Controlling Authority may, on an application made to it in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorised agent, by order direct, the landlord or his authorised agent, to pay to the tenant by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid.

Section 25. Deposit of rent by tenant-

(1) Where the landlord does not accept any rent tendered within the time referred to in section 24 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the persons to whom the rent is payable, the tenant may deposit such rent with the Rent Controlling Authority in the prescribed manner and such deposit of rent shall be a full discharge of the tenant from the liability to pay rent to the landlord;

(2) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely :--

(a) the accommodation for which the rent is deposited with a description sufficient for identifying the accommodation;

(b) the period for which the rent is deposited;

(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent;

(d) the reasons and circumstances for which the application for depositing the rent is made;

(e) such other particulars as may be prescribed.

(3) On such deposit of the rent being made, the Rent Controlling Authority shall send in the prescribed manner a copy or copres of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of the deposit.

(4) If an application is made for the withdrawal of any deposit of rent, the Rent Controlling Authority shall, If satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed and such payment of rent shall be a full discharge of the Rent Controlling Authority from all liability to pay rent to the landlord :

Provided that no order for payment of any deposit of rent shall be made by the Rent Controlling Authority under this sub-section without giving all persons named by the tenant in his application under "sub-section (2), as claiming to be entitled to payment of such rent, an opportunity of being heard and such order shall be without prejudice to the rights of such person to receive such rent being decided by a Court of competent jurisdiction.

(5) If at the time of filing the application under sub-section (4), but not after the expiry of thirty days from receiving the notice of deposit the landlord or the person or persons claiming to be entitle to the rent comp lain to the Rent Controlling Authority that the statements in the tenant''s application of the reasons and circumstances which led him to deposit the rent are untrue, the Rent Controlling Authority after giving the tenant an opportunity of being heard, may levy on the tenant a fine which may extend to an amount equal to two months'' rent, if the Rent Controlling Authority is satisfied that said statements were materially untrue and may order that a sum out of the fine realised be paid to the landlord as compensation.

(6) The Rent Controlling Authority may, on the complaint of the tenant and after giving an opportunity to the landlord of being heard, levy on the landlord a fine which may extend to an amount equal to two months" rent, if the Rent Controlling Authority is satisfied that the landlord, without any reasonable cause, refused to accept rent though tendered to him within the time referred to in section 24 and may further order that a sum out of the fine realised be paid to the tenant as compensation.

Section 26. Time limit for making deposit and consequences of incorrect particulars in application for deposit-

(1) No rent deposited u/s 25 shall be considered to have been validly deposited under that section, unless the deposit is made within twenty-one days of the time referred to in section 24 for payment of the rent.

(2) No such deposit--shall be considered to have been validly made, if the tenant willfully makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of filing an application for the recovery of possession of the accommodation front the tenant.

(3) If the rent is deposited within the time mentioned in sub-section (1) and does not cease to be a valid deposit for the reason mentioned in sub-section (2), the deposit shall constitute payment of rent to the landlord, as if the amount deposited had been validly tendered.

(Underlining is by me)

From a combined reading of the aforesaid provisions, the following position of law emerges :--

(a) that the tenant has to make payment of contractual rent within the time fixed by contract (lease).

(b) In the absence of any such contract, it is obligatory on the tenant to pay rent within the time enlarged by section 24 of the Act; i.e. upto 15th day of the month next following the month for which it is payable.

(c) If the landlord accepts the payment, he or his authorised agent is under obligation to pass a written receipt in favour of the tenant, but if the landlord or his authorised agent refuses or neglects to deliver a written receipt, the tenant may submit an application to the Rent Controlling Authority within two months of the date of payment and there upon the Rent Controlling Authority may after following the prescribed procedure direct the landlord to pay damages upto the prescribed limit;

(d) If the landlord does not accept any rent tendered within the time fixed for payment of rent by the contract or in absence of such a contract upto 15th day of the month next following the month for which it is payable, or refuses to deliver written receipt, the tenant may deposit ''such'' rent with the Rent Controlling Authority in the prescribed manner, and such deposit of rent shall 62 full discharge of the tenant from his liability to pay rent to the landlord.

(e) No rent deposited u/s 25 of the Act can be treated to have been validly deposited under that section unless the deposit is made within 21 days of the time referred to in section 24 for payment of rent i.e. as provided in the contract or by 15th day of the month next following the month for which it is payable.

(f) No rent deposited with the Rent Controling Authority after the aforesaid period can be treated as validly deposited and such a deposited, even if made, cannot operate as valid discharge of the liability of the tenant to pay the same to the landlord.

(g) If no rent is so tendered to the landlord within the time fixed by the contract or in the absence of the contract 15 days time of the month next following the month for which it is payable, or if receipt is not refused by the landlord or his authorised agent, the tenant has no right to make any deposit of rent u/s 25 of the Act.

(h) The tenant cannot go on depositing such rent with the Rent Controlling Authority which has become payable after initiation of the proceedings u/s 24 or section 25 of the Act.

(i) There is no provision similar to section 13 of the Act enabling the tenant to deposit rent becoming payable during the pendency of those proceedings.

(j) Since the Act by enacting provisions contained in sections 24 & 26 of the Act create new jurisdiction, new procedure, new forms for new remedies, the procedure, the forms or the remedies there provided and not others must be strictly followed in the manner provided thereby.

(k) The deposit of rent not authorised by the aforesaid provisions cannot be treated to be a valid deposit and the same cannot operate as valid discharge of tenant''s liability to pay rent to the landlord.

Now in the present case the tenant has alleged that he tendered rent by Money Order dated 20-12-71, on refusal of the landlord to accept the same, the tenant submitted an application u/s 25 of the Act before the Rent Controlling Authority on 25-1-72. In these proceedings the deposit of rent upto September 1972 has been stated to have been deposited. The tenant (defendant) non-applicant herein, had thus no right to go on depositing rent not tendered by him to the plaintiff (landlord) after refusal of Modey Order dated 20-12-71. This deposit cannot be treated as a deposit of such rent, as it has not been shown by him to haw been tendered within the prescribed time and not accepted by the landlord. Accordingly, the deposit relied on by the tenant (non-applicant) in the present case cannot be treated to be a deposit of such rent and the deposit in question cannot be treated to be valid and the same cannot operate as valid discharge of tenant''s liability to pay rent to the landlord, specially because the special provision enacted by section 25 of the Act has not been shown to be strictly complied with by tenant (Non-applicant). A deposit not contemplated by law and made voluntarily by the tenant cannot be treated to be one under any of the provisions of the Act. As such it cannot operate as valid discharge of the tenants liability within the contemplation of section 25 of the Act. The deposit made by the tenant in the instant case cannot be treated as a valid deposit also because there is no provision enabling the defendant to go on depositing rent in the proceedings u/s 24 or 25 of the Act. Had there been a provision like section 13 in respect of the proceedings u/s 24 or section 25 of the Act. the matter would have been different.

In an ejectment suit arising out of West Bengal Premises Tenancy Act (12 of 1956) their Lordships of the Supreme Court in Kaluram Onkarmal and Another Vs. Baidyanath Gorain, have held that the Rent Controlling Authority is not ''a Court'' within the meaning of section 17(1) of the above Act. Section 17(1) of that Act is analogous to section 13 of the M. P. Act. Therefore also the deposit made by the defendant-non-applicant cannot be regarded to be a deposit in the ''Court'' within the contemplation of section 13(1) of the Act.

This is also what has been held by this Court in Civil Revision No. 275/69 (N. K. Kapoor v. Bhagwat Sahai) decided on 12-1-70 by Golvalkar 3. The ratio of this case is as under;--

Para 3. In my opinion the deposit of rent before the Rent Controlling Authority cannot be availed of by the petitioner for purposes of compliance of section 13 of the Act. The legal position in that respect has been duly laid know by the Supreme Court in the case of Kaluram Onkarmal and Another Vs. Baidyanath Gorain, True it is that their Lordships of the Supreme Court have duly brought to the notice of the legislation that the provisions of law in the matter need appropriate amendment so that the tenant is not required to deposit rent twice. But that would not permit this Court to take any other view of the law and give benefit of the same to the tenant petitioner except to condone the default on his part, provided he has made out a case for grant of that benefit to him as laid down by the full Bench of this Court in the case of Jagdish Kapoor v. New Education Society Jabalpur ( 1967 J. L. J. 859).

Part 4. That apart, the deposits before the Rent Controlling Authority cannot also be availed of by the petitioner for yet another reason. Deposit of rent before that Authority has to be strictly in accordance with the provisions of S. 25 of the Act, in the sense that it has to be made, from the very initial stage of the proceedings before it, within the prescribed period thereunder. Otherwise, the deposits would not be valid for claiming discharge of rental liability u/s 26 of the Act. His initial deposit was of Rs. 411 on 19-3-1969 although application before that Authority was moved on 19-1-1969. The amount also represents rent for several months, rent payable per month being Rs. 55. It means that the petitioner did not move the Authority in time as the very fiast cause furnished by the landlord, if at all he furnished if So on these grounds also the petitioner is not entitled to take shelter behind the deposits of rent made before the Rent Controlling Authority.

In a case reported in 1960 J. L. J. 527 (Chhotelal v. Lalta Prasad) the controversy which arose was whether a tenant has to deposit rent both in an ejectment suit with the Court and with the Rent Controlling Authority in the proceedings pertaining to fixation of standard rent. In such a situation it was held by this Court as under : --

Per Dixit C. J.

In matter of interpreting a statute the argumentum inconvenienti is always a weak one. Inconvenience and hardship are to be relieved by the Legislature and cannot be taken into-consideration in interpreting a statute, the words of which are clear and imperative. This canon of construction is firmly settled. The hardship and injustice in requiring a tenant to deposit rent at two places may be real. It can only be avoided by an amendment of the Act. There is no ambiguity in the wording of the material provisions of sections 5 and 11. To hold that on the ground of hardship and injustice a tenant should be excused from making a deposit before one authority would be to rewrite the law and not to construe it. The answer to the first question must, therefore, be that a tenant has to deposit rent under sections 5 and 11 of the Act in a suit for ejectment as well as in proceedings for fixation of fair rent and that a tenant cannot be relieved of the obligation of making a deposit in one proceeding on the ground that he has already deposited rent in another pending proceedings.

Per Shivdayal, J

There is one lacuna in the provisions relating to deposit because the word ''payable, in section 11 gives a relief to the tenant against a double deposit. The lacuna lies in not providing for a refund of the deposit u/s 11 as soon as rent is paid u/s 5 but such a hardship can be no ground for interpreting the law in a manner not warranted by its language. Exceptions cannot be added by judicial intepretation nor can law be re-written-in the Court." (Para 4).

''If the tenant makes an application to the Rent Controller before the order is passed by him u/s 11, it is to be seen whethea ''Shall'' can be read as ''may''. This is not possible because in a case where no suit is instituted u/s 5 it is not permissible to read the word shall'' as ''may'' u/s 11. A provision is either mandatory or directory. It cannot be both" (Para 3)

The logic of this case can be usefully employed in and extended to the present situation also, since there is no provision in the Act to the effect that Court trying ejectment suit will dispanse with the requirement of depositing rent, if rent is already deposited with the Rent Controlling Authority

For all the aforesaid reasons the deposit of rent with the Rent Controlling Authority cannot be treated as valid deposit for purposes of section 13(1) of the Act. Therefore, it was obligatory on the defendant-non-applicant to have deposited rent according to section 13(1) of the Act.

This brings me to the question whether the trial Court was justified in granting 15 days'' time to enable the tenant to deposit the rent Firstly the application does not contain a prayer to that effect. Extension of time has to be prayed for and facts entitling him for exercise of judicial discretion in his favour have to be set out. This was not done in the present case. The defendant only wanted the Court to treat the deposit made with the Rent Controlling Authority as deposit for the purposes of section 13(1) of the Act. In this view of the matter, the trial Court has acted without jurisdiction in granting time to enable the tenant to deposit rent due upto the date of the impugned order. Such an order is not contemplated by section 13(1) of the Act.

The cases relied on by the learned counsel for the non-applicant are; --

(i) 1977 M. P. WN. 205 (Dammulal v. Sitaram)

(ii) 1975 J. L. J. 779 (Chhogalal v. Idol of Shri Bhagwan Shri Satya Narain)

(iii) Anandilal Vs. Shiv Dayal Pandey,

In the case of Dammulal (supra) the deposit of rent with the Rent Controlling Authority was shown to be within 21 days, after refusal by the landlord but it is not so in the present case. In the case of Anandilal (supra) the plea involved was that of payment of rent by the tenant to the landlord. Similarly in Chhogalal''s case (supra) the position was different and not as available here. In the present case, there, is no dispute of such a nature which arrests the operation of section 13(1) of the Act Therefore, none of the above cases has any application to the present situation.

In the end the learned counsel for the defendant-non-applicant contended that interference cannot be made in revision because the case does not fall within any of the Provisions to section 115 of the Code of Civil Procedure. The impugned order is wholly arbitrary and without jurisdiction. It would occasion failure of justice if allowed to stand. Therefore, the revision is maintainable in the matter. In view of the facts and circumstances of the case, it is a fit case for exercise of revisional jurisdiction of this Court.

Accordingly, the revision is allowed. The impugned order is set aside. The application of the defendant-non-applicant dated 9-10-72 is dismissed with costs. Counsel fee according to Schedule, if certified.