Chunni Lal and Another vs Ramesh Chand and Others

S.P. Srivastava, J.—This writ petition of a tenant arises out of a suit filed by the landlord Respondent No. 1 seeking his ejectment from the shop in dispute on the ground of default as contemplated u/s 20 of the U.P. Act No. 13 of 1972 The trial Court had dismissed the suit holding that although the tenant Petitioner was a defaulter within the meaning of Section 20(2)(a) of the U.P. Act No. 13 of 1972. yet he was end it led to the benefits available u/s 20(4) of the said Act In as much as by the first date of hearing he will be deemed to have deposited the entire amount as required to be deposited under the aforesaid provision The trial Court while calculating the amount required to be deposited as contemplated u/s 20(4) of the Act took into account the amounts deposited by the tenant Petitioner in the proceedings u/s 30 of the U.P. Act No. 13 of 1972 initiated by him which had given rise to Miss Case No. 131 of 1975. The decree of the trial Court was challenged by the landlord by means of the revision u/s 25 of the Provincial Small Cause Courts, Act, which was decided by the Respondent No. 2 vide its judgment and order dated 17-12-1981 whereunder the revisional Court reversed the decree passed by the trial Court on the ground that the Petitioner tenant was not entitled to take any advantage of the deposits made by him in the proceedings u/s 30 of the U.P. Act No. 13 of 1972. These deposits could not be deemed to be valid and consequently either save the tenant from becoming a defaulter within the meaning of Section 20(2) of the said Act or could make up the deficiency In the amounts required to be deposited for becoming entitled to the benefits available u/s 20(4) of the said Act. In the aforesaid circumstances, the revisional Court after setting aside the decree of the trial Court decreed the suit of landlord Respondent No. 1 as claimed with costs throughout Feeling aggrieved by the aforesaid decree, the Petitioner tenant has approached this Court by means of this writ petition seeking the quashing of the judgment and decree dated 17-12-1981, passed by the Respondent No. 2.

The facts of the case as they emerge from the materials on the record indicate that the Petitioner tenant had been depositing the rent in respect of the accommodation in dispute in the proceedings u/s 30 of the Act, which had been initiated by him, and had given rise to Misc. Case No. 131 of 1975 On 2nd of March 1978. the Plaintiff landlord had issued a notice to the tenant Petitioner communicating to him his willingness to accept the rent in respect of the accomodation in dispute and forbidding the tenant Petitioner from depositing the same in the proceedings u/s 30 of the U.P. Act No. 13 of 1972 The aforesaid notice was duly received by the Petitioner tenant, however, he, Instead of paying the amount of rent due to the Plaintiff landlord, continued to deposit the same in the proceedings u/s 30 of the U.P. Act No 13 of 1972. it further appears that an amount of Rs. 1600/- was deposited by the tenant Petitioner in Misc Case No. 131 of 1975 on 11-4-1978 and the said amount of Rs. 1600/- was withdrawn by the Plaintiff landlord on 15-7-1978. It further appears that the Plaintiff-Respondent No. 1 issued a notice dated 6-1-1979 terminating the tenancy of the Petitioner and requiring him to pay the arrears of rent for the period commencing with the month of April 1978 and ending with the month of December, 1978. In the aforesaid notice, it was specifically pointed out that it was not proper for the tenant to make any deposit In the proceedings u/s 30 of the U.P. Act No. 13 of 1972 subsequent to the service of the notice dated 2-3-1978. The notice was a notice contemplated u/s 20(2) of the said Act. This notice was a composite notice, terminating the tenancy and demanding to arrears of rent and complied with the requirement envisaged u/s 20 of the U.P. Act No. 13 of 1972. It further appears that on 3rd of August, 1978, the Petitioner tenant bad submitted a tender for permission to deposit an amount of Rs. 1200/- in Misc. Case No.131 of 1975. This tender was presented in accordance with the Rule 283 of the General Rules (Civil) and the report contemplated under Rule 284 of the aforesaid rules was submitted on 15th September, 1978. On the same date the Court passed an order on the aforesaid tender for receiving the payment as contemplated under Rule 285 of the General Rules (Civil). However, inspite of the order to receive payment having been passed by the Court on 15-9-1978, the requisite amount sought to be paid under the tender was actually deposited before the receiving officer on 16th January, 1979 i.e. to say after a lapse of about four months.

The learned Counsel for the Petitioners has urged that the amount of Rs. 1200/- which had actually been deposited on 16-1-1979 had to be treated under the law, to have been deposited on the date of the submission of the tender i.e. on 23rd August, 1978 and in that view of the matter on the date of notice i.e. 6th January, 1979, the Petitioner could not be deemed to be defaulter as with the deemed deposite of amount of Rs. 1200/- on 23rd of August, 1978, the requisite conditions contemplated u/s 20 of the U.P. Act No. 13 of 1972 in respect of their being an arrear of rent for more than four months could not be taken to be satisfied and consquently no decree for eviction could be passed on the basis of the notice dated 6-1-1979, which in the above circumstances, could not be deemed to be a valid notice. It has further been asserted that the Respondent No. 2 has acted with manifest illegality in overlooking the principle that when an amount of money Is paid in the Court through a tender in accordance with the procedure provided for In the General Rules (Civil) the date of actual deposit of the amount before the receiving officer is Irrelevant as the payment relates back to the date of the submission of the tender. He has further submitted that even the date of the passing of the order to receive payment contemplated under Rule 285 of the General Rules (Civil) is of no relevence as the said order also relates back to the date of the submission of the tender form.

The learned Counsel for the Petitioner has further submitted that the amount deposited in the proceedings u/s 30 of the U.P. Act No. 13 of 1972 had to be taken as valid deposit in as much as it was on account of refusal of the landlord to accept the amount tendered to him that the tenant had been compelled to deposit the rent in the aforesaid proceedings. It is further asserted that the notice dated 2nd March, 1978, in the circumstances of the case, caught to have been treated as waived and this waiver included the waiver of the willingness to accept the rent.

Learned Counsel for the landlord Respondent has asserted that the deposits claimed to have been made by the tenant Petitioner in the proceedings u/s 30 of the Act subsequent to the notice dated 2nd of March, 1978 could not be deemed to be ''valid deposits'' and consequently the tenant Petitioners were not entitted to the benefits available u/s 30(6) of the U.P. Act No. 13 of 1972 and further were not entitled to any adjustment of the amount claim to have been deposited by them in the aforesaid proceedings towards the amount required to be deposited u/s 20(4) of the Act in order to get relieved of the decree of ejectment. It has further been asserted by the learned Counsel for the Respondents that in any view of the matter, there could be no justification for the delay in making the deposit even after the passing of the order for receiving the payment on 15-9-1978 and the inordinate delay of about four months in making the deposit in pursuance of the order dated 15-9-1978 was more than sufficient by itself to indicate that the tender, which was submitted on 23rd August, 1978 was not a bonafide one and the Petitioner could not be deemed to have with him the requisite amount for payment in Court either on 23rd of August 1978 or on 15-9-1978 or thereafter till 15th January 1979. In this view of the matter, the learned Counsel for the Respondents asserted that the tenant Petitioners were not entitled to any benefits of the sail deposit and it could not be a case, where the amount actually deposited 16-1-1979 should be treated to have been deposited on 23-8-1978 as claimed by the tenant Petitioners.

I have heard Shri R.H. Zaidi, learned Counsel for the Petitioner and Shri R.K. Jain, learned Counsel for the landlord Respondent in support of their rival contentions at some length.

The questions, in the circumstance of the present case which arise for consideration are as to whether the deposit made by the tenant Petitioner on 16-1-1979 could relate back to 23rd August, 1979 and as to whether the deposit made by the Petitioner tenants In the proceeding! u/s 30 of U.P. Act No. 13 of 1972, which had been made subsequent to 2nd March, 1978 could be demeed to be ''valid deposit'' so as to entitle the tenant Petitioners to seek adjustment of the amount so deposited as against the arrears of rent or against the amount required to be deposited u/s 20(4) of the said Act.

The provisions contained In Rule 275 of the General Rules (Civil) were considered by a Division Bench of this Court in its decision in the case of Bankey Behari v. Gopal Das 1977 AWC 321. In the said decision this Court clarified that the lender envisaged under the aforesaid rules was in fact a credit of some kind upon the treasury which was equated with cash, postal money order and cheques drawn on a recognised bank. It was observed by the Bench that a tender drawn on the treasury of the State Bank has been put at par with other various kinds of payments mentioned in Rule 275. The Bench further observed that when the Court passed an order accepting the tender on a later date and the money was deposited on the same date that will make no difference and the deposit in the Court shall be deemed to be on the date when the tender was presented before the Court.

The Division Bench further clarified that, if the tender was a bonafide one and there was no allegation or proof that the applicant was not in a position to deposit the money on the tender being passed by the Court, the deposit in Court must be deemed to be on the date when the tender was presented in Court.

The aforesaid clarification contained In the decision of this Court referred to above is really based on the decision of an earlier Division Bench of this Court in the case of Mewa Ram v. Ablak Singh 1936 ALJ 1401, where it was observed as follows:

....The validity of the tender will depend upon the fact whether it Is a real tender in the sense that the applicants are able and willing to pay in the money at the time when the tender is made. If the tender is fictitious in the sense that there is either no intention on the part of the applicants or no possibility on their part to pay the money then the tender will not be valid and will not amount to a deposit of the sum which has to be paid.

As has already been indicated above, submitting of a tender envisaged under Rule 283 of the General Rule (Civil) by itself does not entitle the applicant to make the deposit unless after completing the formalities required under Rule 284 thereof an order to receive payment is passed by the Court or the authorised officer as envisaged under Rule 285 of the aforesaid rules Rule 286 of the rules cast a duty on the musrim or the clerk of the Court to see that no unnecessary delay occurs in obtaining the office report and the order to receive payment and in returning the duplicate forms or tender to the applicant. The applicant therefore can not be made to suffer for the delay, which occurs in passing the order to receive payment as envisaged under Rule 285 indicated above, as no one could be made to suffer at the hands of the Court. But once, the order to receive the payment is passed, as duty stands cast on the applicant to make the payment with atmost despatch. Any laches or inordinate delay In making the payment even after the passing of the order to receive payment indicated above, will disentitle the applicant from claiming the amount so deposited to be treated as a deposit made of the date of the tender.

This Court in its decision in the case of Satish Chandra Nigam v. The District Judge, Kanpur 1984 (2) ARC 324, had observed "...submitting of tenders by itself could not amount to deposit unless the amounts were deposited in the bank within reasonable time....''In this case a delay of 27 days only was treated to be an inordinate delay so as to disentitle the Petitioner from claiming any benefit out of the delayed deposits.

In the present case, there is absolutely nothing on the record, which could in any manner whatsoever explain the laches and the inordinate delay In making the deposit even after the passing of the order to receive payment on 15-9-1978. Further the more fact that inspite of the order for receiving payment having been passed on 15-9-1978, the requisite amount could not be deposited immediately thereafter and the Petitioners tenants could arrange for the making of the said deposits only on 16-1-1979, leads to an irresistible conclusion that the tenant Petitioners were neither able or willing to pay-in, the money at the time when the tender was made and that there was no possibility on their part to pay the money on that date or at least immediately after the date of the passing the order for receiving the payment. Consequently! the tender in question clearly appeared to be ineffective and was not a valid tender so as to be deemed to be a deposit of the sum which had to be paid thereunder on the date when It was submitted.

Learned Counsel for the Petitioners has heavily relied upon the decision of the apex Court in the case of Ved Prakash Wadhwa Vs. Vishwa Mohan, and has urged that as laid down in the aforesaid decision, when money is tendered before the Courts the chalan is passed by the ministerial officer and there upon, the money is deposited in the treasury with the chalan, such deposit relates back to the date on which the tender was made or the chalan presented.

The learned Counsel for the Petitioner urged that in view of the above observations. the money deposited on 16-1-1979 cought to be presumed to have been deposited on 23-8-1978.

I have carefully perused the judgment referred to above and I find that In that case the Hon''ble Supreme Court had affirmed the decision of the Division Bench of this Court in the case of Banke Bihari v. Gopal Das (supra). It is therefore obvious that when the apex Court has approved the decision of the Division Bench of this Court, to which a reference has already been made above, this approval has to be taken as the approval of even those conditions specifically mentioned in the decision of this Court which qualify the application of the doctrine of relating back of the date of actual deposit to the date of submission of the tender.

In the present case, I have already mentioned herein before that the deposit in question could not be deemed to relate back to the date of the presentation of the tender, as the requisite conditions which qualify the applying of this doctrine of relating back can not be deemed to be satisfied in the present case.

Now coming to the question relating to the validity of the deposit made u/s 30 of the U.P. Act No. 13 of 1972, it may be noticed that as observed by the Hon''ble supreme Court in its decision in the case of Dr. Brahmanand Vs. Smt. Kaushalya Devi and Another, , while considering the provisions contained in Section 7C of U.P. Act No. III of 1947, which were pari materia with the provisions contained u/s 30 of the U.P. Act No. 13 of 1972, it was observed that ''...physically offering payment when the relations between the parties are strained is to ask for trouble and be impractical. But harassing the landlord by straightway depositing the rent, in Court without fulfilment of the conditions required by Section 7C(1) is also unwarranted. Section 7C(6) by using the expression ''where the deposit has been made as aforesaid'' takes us back to Section 7C(1). That is to say, the deposit is permissible when the condition in Section 7C(1) is compiled with....''.

The provisions contained in Section 30 of the U.P. Act No. 13 of 1972 are identical to the provisions contained in Section 7C of the U.P. Act No. 3 of 1947. There is therefore, no escape from the conclusion that unless the condition precedent envisaged u/s 30(1) of the said Act is alleged to exist, the tenant can not have recourse to the remedy of depositing the amount of rent in those proceedings and entitled as such to the benefit envisaged u/s 30(6) of the Act.

The more foot that an application u/s 30 for permission to deposit the arrears of rent has been allowed by the Munsif can not absolve the tenant from establishing before the Court, where the suit for eviction was filed, that the landlord had refused to accept the rent lawfully tendered. It stands well settled that the Court trying the suit for eviction can not be precluded from enquiring about the validity of the deposit made under the proceedings contemplated u/s 30 of the U.P. Act No. 13 of 1972.

It may further be noticed that, if the deposit has been made in the circumstances covered by Sub-section (1) of Section 30 of the said Act and in the prescribed manner, then it would be a valid deposit made under that provision and in that event it will obviously ensure towards the benefit of either Sub-section (6) of Section 30 or Section 20(4) of the Act. A Division Bench of this Court in its decision in the case of Smt. Mridula Dayal v. VIth Addl. District Judge, Allahabad 1986 (2) ARC 132. clearly laid down that if the deposit has either not been made in the circumstances contemplated by Sub-section (1) of Section 30 or not in the prescribed manner, it is not a deposit under Sub-section (I) of Section 30 at all and no question of taking such deposits into consideration while considering the question whether or not the person claiming to be a tenant is entitled to be relieved of his liability as laid down in Section 20(4) of the Act, would arise.

In the present case, as has already been noticed herein before, the landlord had issued a notice dated 2nd March, 1978, communicating his willingness to accept the rent from the tenant Petitioners and forbidding them to make any deposit of the rent in the proceedings u/s 30 of the Act. This willingness to accept the rent was reiterated in the notice dated 6-1-1979.

Taking into consideration the aforesaid notice there could be no manner of doubt that these notices undoubtedly signified the landlord''s willingness to accept the rent Section 30(1) of the Act uses the expression "the landlord In the meantime signifies by notice to the tenant his willingness to accept".

In view of the above on the receipt of the notices and the communication signifying the landlord''s willingness to accept the rent, there could be no justification for continuing to make in deposit of rent in the proceedings u/s 30 of the Act. The exception contained in the last clause of Section 30(1) of the U.P. Act No. 13 of 1972 became specifically applicable in the present case with the result that the tenants could not be deemed to have a right to continue to make a deposit in the aforesaid proceedings.

The learned Counsel for the Petitioner has urged that the notice dated 6-1-1979 will be deemed to have waived the notice dated 2-3-1979. He has placed reliance upon the decision in the case of Mohammad Bashir v. Azizul Qadar 1966 ALJ 677. It has been urged that as held in the aforesaid case, the serving of a second notice clearly amounted to a waiver of the earlier notice. This decision has no application to the facts of the present case. The notice dated 2nd of March, 1978 was a notice communicating to the tenant Petitioners the willingness to accept the rent and forbidding them to make any deposit in the proceedings u/s 30 of the U.P. Act No. 13 of 1972. The notice dated 6-1-1979 was a composite notice terminating the tenancy and demanding the arrears of rent and communicating the willingness to accept the rent, if tendered by the tenants within 30 days. The effect of the second notice was that the willingness to accept the rent, which had been communicated to the tenants on 2-3-1978 was to continue to remain operative and effective for a period of one month from the date of the service of the notice dated 6-1-1979.

In view of the reasons indicated hereinbefore, the Petitioners were not entitled to any benefit of the deposit made by them in the proceedings u/s 30 of the U.P. Act No. 13 of 1972. Consequently the said amount could not be adjusted as against the amount required to be deposited u/s 20(4) of the said Act. Further, this invalid deposit could not secure in favour of the Petitioners any benefit envisaged u/s 30(6) of the said Act.

There is no error much less manifest error of law in the impugned order, so as to justify an interference therein in the exercise of the extraordinary jurisdiction of this Court as envisaged under Article 226 of the Constitution of India.

The writ petition is devoid of merits and is accordingly dismissed.

There shall be no order as to cost.