Mahendra Nath Tandon vs Vlth Additional District Judge Kdnpur & Ors.

R. H. Zaidi, J.—This petition arises out of a suit for ejectment and recovery of arrears of rent filed by the respondent Nos. 3 and 4 in the court of Judge Small Causes Court, Kanpur Nagar. Petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order passed by respondents No. 2 dated 6995, whereby the suit filed by the respondents No. 3 and 4 was decreed for ejectment of the petitioner from the shop situated on the ground floor of the building No. 112/324, Swaroop Nagar, Kanpur Nagar, hereinafter referred to as the ''shop in question'', for recovery of arrears of rent and municipal taxes, petitioner also seeks quashing of the order dated 13121995, passed by the respondent No. 1, dismissing the revision filed by the petitioner.

In brief, it was pleaded by the respondents No. 3 and 4 that the petitioner was a tenant in the shop in question on monthly rent of Rs. 100/. Petitioner fell in arrears of rent and did not pay the same from 23.11.91 to 30.11.92, amounting to Rs. 12227/. The amount of municipal taxes was also not paid by the petitioner, therefore, by means of a notice of demand and termination of tenancy dated 261292, which was served upon him on 27193, he was called upon to pay the arrears of rent etc. and to vacate the shop in question within a period of 30 days from the date of receipt of notice to dated 26.12.92, hut neither the rent was paid nor the shop in question was vacated. Therefore, the suit was filed for ejectment of the petitioner from the shop in question and recover'' of rent and the amount of municipal taxes on the ground o f default on 16293.

Petitioner contested the suit pleading that he never committed default in payment of rent. It was pleaded that when the rent was not accepted by the landlordsrespondent Nos.3 &4, the same wassentto them by Money order; but they have also refused to receive the said Money order, the1 rent was thereafter, deposited u/S.30 of the U. P. Act XIII of 1972, for short the Act, in Misc. Case No. 770/70/72, in the court of Munsif, Kanpur Nagar. It was also stated that the petitioner was entitled to the benefit of subsec. (4) of S. 20 of the Act and the suit was liable to be dismissed,

In support of their respective cases the parties have led their evidence. The trial court framed as many as five issues and held that the respondents No. 3 and 4 did not refuse to accept the Money order, petitioner committed default in payment of rent, as the amount of rent and taxes was not paid by the petitioner within 30 days from the date of receipt of the notice of demand and termination of tenancy was valid and that the petitioner was not entitled to the benefit of subsection (4) of Section 20 of the Act. Having recorded the said findings, the suit was decreed by the trial court vide its judgment and decree dated 6995.

Aggrieved by the said judgment and decree passed by the trial court, petitioner filed a revision under Section 25 of Provincial Small Cause Courts Act. The Revisional court took the view that the findings recorded by the trial court were findings of fact and that he had no jurisdiction to interfere in the said findings. It was held that the relief under subsection (4) of Section 20 of the Act was discretionary relief and in refusing to exercise the discretion in favour of the petitionertenant, trial court did not commit any error of law. Further the amount deposited by the petitioner was short by Rs. 89913, and that the amount deposited by the petitioner under Section 30 of the Act could not be taken into consideration as the said deposits was invalid. The revisional court thus upheld the findings recorded by the trial court and dismissed the revision filed by the petitioner vide its judgment and order dated 131295. Petitioner, thereafter, filed the present writ petition challenging the validity of the orders passed by the two courts below.

I have heard learned counsel for the petitioner and learned counsel appearing for the contesting respondents finally as the counter and rejoinder affidavits have been exchanged and the case was ripe for hearing.

Learned counsel for the petitioner submitted that the courts below have committed error of law which is apparent on the face of the record, in holding that the petitioner was defaulter and in decreeing the suit. It was further urged that in any view of the matter the amount deposited by the petitioner under Sec. 30 of the Act was liable to the adjusted in the amount deposited by the petitioner under subSection (4) of Section 20 of the Act. Thecourts below have acted illegally in not adjusting the said amount and in holding that the petitioner was not entitled to the benefit of subsection (4) of Section20of the Act.

On the other hand, learned counsel appearing for contesting respondents submitted that the findings recorded by the courts below on the questions involved in the case, are all findings of fact, which cannot be assailed under Article 226 of the Constitution of India.

I have considered the submissions made by the learned counsel for the parties and perused the record.

The main questions involved in the present case, are as to whether the petitioner committed default in payment of rent and as to whether the amount deposited by him u/S, 30 of the Act was liable to be adjusted in the amount deposited by him under subsection (4) of S. 20 of the Act and further whether the petitioner could be relieved from the liability of his eviction under the said subsection (4) of Section 20 of the Act.

The courts below have recorded concurrent findings of facts on the question of default against the petitioner. Clause (a) of subsection (2) of Section 20 of the Act, provides as under:

"20. Bar of suit for eviction of tenant except on specified grounds: (1)........

(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:

(a) that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:

Provided����.

Provided that nothing in this subsection, shall apply in relation to a tenant who or anyA perusal of the aforesaid provision reveals that a tenant must be in arrears of rent for more than four months and he should have failed to make the payment of the amount of rent within 30 days of the receipt of the notice of demand, only then he can beheld to be a defaulter.

In the instant case, admittedly, the notice was sent by respondents No. 3 and 4 on 261292, which was served upon the petitioner on 28.12.1992. On the said date, according to the case set up by the respondent Nos. 3 and 4, petitioner was in arrears of rent for more than four months and has failed to pay the same within 30 days of the receipt of the notice. While the petitioner pleaded that the rent for the period 211191 to 30692 was not accepted by the landlords, the same thereafter sent through Money order; but the said Money order was also refused by them on 15792 and the rent was, thereafter, deposited in the court on 221292 under Section 30 of the Act. Thus on the date of the receipt of notice of demand and termination of tenancy, petitioner was not in arrears of rent for the more than four months and the rent for the subsequent month was also deposited by the petitioner and he, according to his own case, was not in arrears of any amount.

The courts below have taken the view that the petitioner has failed to prove that the respondents No. 3 and 4 refused to receive the Money order. It was further held that the deposit made by the petitioner under Section 30 of the Act, cannot be said to be valid and that the petitioner was committed default in payment of rent. The finding recorded by the courts below are concurrent findings of fact, which are based on relevant evidence on the record. The said findings cannot be challenged under Article 226 of the Constitution of India, therefore, the submission made by the learned counsel for the petitioner that the petitioner was not a defaulter, is not acceptable to me.

So far as the question of benefit of subsection (4) of Section 20 of the Act is concerned, petitioner pleaded that after the Money order sent by him was refused by the contesting respondents, an amount of Rs. 1809/ was deposited under Section 30 of the Act and, thereafter on receipt of summons issued by the trial court, an amount of Rs. 3000 was deposited on 301093. According to the findings recorded by the court below, the date of first hearing in the case was 8121993. Thus petitioner has deposited the requisite amount according to his calculation, even much before the date of first hearing. The court below has refused to give the benefit of subsection (4) of Section 20 of the Act to the petitioner on the ground that the said amount was found short of Rs. 89913, and the deposit made by the petitioner under Sec. 30 of the Act has been held to be a invalid. Thus the question is as to whether the amount deposited by the petitioner under Section 30 of the Act was liable to be adjusted in the amount required to be deposited under subsection (4) of Section 20 of the Act. Subsection (4) of Section 20 of the Act provides as under:

"20(4) In any suit for eviction on the ground mentioned in clause (a) of subsection (2) if at the first hearing of the suit the tenant unconditionally (pays or tenders to the landlord or deposits in court) the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord''s costs of the suit in respect thereof, after deducting there from any amount already deposited by the tenant under subsection (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground: member of whose family has built or has otherwise quired in a vacant :ate, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area"

From a plain reading of the aforesaid provision, it is apparent that the amount deposited under Section 30 of the Act by a tenant, is liable to he adjusted in the required to be deposited under 1 i provision.

it is well settled in law that the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, is a beneficial legisr �n for the tenant It should be construed liberally in favour of the tenant as for as possible. As provided in the aforesaid provision, theamount deposited under sub Section (1) of Section 30 of the Act, is liable to be deducted from the amount required to be deposited under the said provision. Therefore, even assure ing as held by the courts below that the amount of rent was dc: sited by the petitioner without the same was being tendered to the respondents No. 2 and 4 and without there being no refusal by the said respondents to receive the same. Petitioner offered to pay the said amount to the said respondents unconditionally therefore, there was no justification for the courts below not to deduct the said amount in the amount required to be deposited under subsection (4) of Section 20 of the Act,

In Krishna Manohar Dhawan v. Vllth Addl. Distt. Judge, Kanpur Nagar, 1984 ALJ124, it was ruled as under:

"The every use of word'' relieving the tenant against his liability for eviction for arrears of rent used in subsection indicates that it is beneficent provision in furtherance of objective of the Act to save tenant from eviction. It has, therefore, to be construed liberally in his favour. A tenant should not be denied benefit of this provision for technical omission or unintended failures. Provision for payment of interest, cost of suit and arrears* having been held by this court to include even time barred arrears are by themselves compulsive provisions to keep a tenant on guard. Payment of interest at nine percent if not penal is certainly harsh. Therefore, it should be construed strictly. And a tenant should not l)e thrown out even though he bonafide complies with law and in doing so there is some mistake in calculation or some misapprehension by use of such words as in this case. Action of tenant which may debar him from claiming benefit of this provision should be decided on anvil of bonafide. Therefore, even if there was some deficiency in payment of interest there is hardly any doubt that opposite party was not only keen but was taking all steps to save him from liability of eviction. This manifest from payment of even time barred rent on 18th Nov. 1977. Failure, therefore, in depositing the interest if any was not because the opposite party did not intended to comply with provisions of subsection (4) of Section 20 but because of misapprehension due to use of word'' settled mutually" in the receipt."

In Ram Das v. Vth Addl. Distt. Judge, Azamgarh, 1985 (2) A.R.C. 188, relying upon the decision in Ram Gopal& others v. Han Shanker, 1985 A.W.C. 210 ; 1985 (1) A.R.C. 306 (D.B.), it was held as under:

"In the case of Ram Gopal and others v. Hari Shanker (supra) it was further held thai even if the deposits were illegal even then the sa�ne were not required to be deposited again and were adjustable. The tenant was entitled to claim the benefit of such deposit. (Emphasis supplied).

In the present case, admittedly, petitioner has deposited an amount of Rs. 1809/ under Section 30 of the Act and thereafter, deposited an amount of Rs. 3, 000 on receipt of the summons issued from the trial court with a view to save his tenancy. Petitioner never objected to the withdraw;'' of the said amount by respondents No. j and 4. If the amount deposited under Section 30 of the Act is adjusted in the amount required to be deposited under subsection (4) of Sec. 20 of the Act, admittedly, the amount will be much more than the amount required to be deposited by him. Therefore, in my opinion, there was no justification for the courts below to refuse the petitioner to give benefit of subsection (4) of Section 20 of the Act. The intention of the legislature is, as it is evident from reading of Section 20 of the Act, that if a tenant is sought to be evicted on account of default, he is to be given two opportunities to save his tenancy; one by offering the amount outstanding against him to the landlord on receipt of the notice of demand and other opportunity on receipt of the summons from the court, where the suit is instituted. Petitioner, as stated above, deposited much more amount than was required to be deposited under law before the date of first hearing in the case and sought relief from the liability of eviction, therefore, he cannot be denied the right to save his tenancy, merely on technical ground raised by the courts below.

In view of the aforesaid discussions, the writ petition is liable to be allowed in part.

The writ petition succeeds in part. The judgments and decrees/orders passed by the courts belov: are set aside to the extent they direct the ejectment of the petitioner from the shop in dispute. In other respects the same shall remain intact. Parties to bear their own costs.