Ram Kishore vs Kum Kum Rani and Others

Rakesh Tiwari, J.—Heard Counsel for the parties.

The petitioner-tenant took the shop, in dispute, in 1963 on a monthly rent of Rs. 70. Laxmi Narain�landlord died and thereafter his son Mahesh Chandra became landlord and rent was being paid to him.

Case set up by the petitioner-tenant is that the landlord refused to accept rent for December 1983, January and February, 1984, so rent was sent through money order at the correct address of the landlord, which was refused by him. The rent for December 1983, January and February 1984, was again sent to the landlord by money order dated 28.3.1984 but it was refused. The rent for the aforesaid three months was sent for the third time by money order which was again refused by the landlord and he did not accept the money order.

The petitioner in the circumstance filed an application u/s 30(1) of the U.P. Urban Buildings (Regulation of Letting, Eviction and Rent) Act, 1972 for depositing rent in Court from 3.12.1983 to 2.8.1984, which was registered as Misc. Case No. 107 of 1984. This application was allowed by Munsif, Koil. Aligarh vide order dated 17.1.1985 and rent up to September, 1985 was deposited by the petitioner in the Court.

A notice dated 19.11.1985 was sent by the landlord through Sri S.N. Sharma, advocate demanding rent from December, 1983 which is alleged to have been remitted by him through money order dated 26.11.1985 by the petitioner who also replied to the notice of the landlord dated 19.11.1985 stating therein that rent was also tendered to the landlord which was refused and hence was deposited in Court in Misc. Case No. 107 of 1984, which he may withdraw. It is stated that the landlord refused to accept money order sent on 26.11.1985 towards rent, hence the rent was tendered to Sri S.N. Sharma, counsel for the landlord on 4.12.1985 but he too refused to accept the same on behalf of the landlord. The petitioner remitted the rent for the months of October, November and December, 1985 again on 20.12.1985 to Sri S.N. Sharma, advocate for the landlord, who again refused to accept the same.

The landlord sent a second notice dated 10.4.1986 through Sri S.N. Sharma, advocate demanding rent from 3.12.1983 which was replied by him on 7.5.1986 repeating his stand that the entire rent had been deposited in proceedings u/s 30(1) of the Act in Misc. Case No. 107 of 1984.

The petitioner subsequently also sent rent from 1.10.1985 to 30.4.1986 and water tax through money order dated 8.5.1986 for period October, 1985 to April, 1986 amounting to Rs. 490 to the landlord which was not accepted by him.

In this backdrop an application was filed by the landlord which was registered as Case No. 69 of 1986 in the Court of Munsif, Koil, Aligarh for recall of the order dated 17.1.1985 passed by the Munsif Koif in proceedings u/s 30(1) of the Act. The petitioner filed his objection on 29.8.1986 to the aforesaid application. The application of the landlord was allowed by the Munsif, Aligarh on the same day vide order dated 29.8.1996 and the case was posted for hearing.

It appears that the application of the petitioner u/s 30(1) of the Act was allowed vide judgment and order dated 27.5.1988 and the petitioner allegedly continued to deposit rent u/s 30(1) of the Act in Misc. Case No. 107 of 1984 and rent till December, 1989.

Thereafter, the landlord sent third notice dated 6.12.1989 claiming rent from 3.12.1984 and water tax from 1.4.1986 at the rate of 7% of the rent amounting to Rs. 194.90 per month. In his reply dated 19.12.1989, the petitioner denied the liability asserting that notice was illegal as no rent was due. Thereupon, the landlord filed suit No. 27 of 1990 in the Court of Judge Small Causes Court, Aligarh in which 9.3.1990 was fixed as the date of first hearing.

It is claimed by the petitioner that he had deposited Rs. 450 which included costs of the suit and water charges etc., u/s 30(1) of the Act on 8.3.1990 claiming the benefit of Section 20(4) of the Act. He also filed his written statement on 9.7.1991 denying the claim of the landlord in the aforesaid suit No. 27 of 1990.

Statement of landlord as P.W. 1 was concluded on 12.1.1992 and the as statement of petitioner as D.W. 1 was recorded on 7.9.1995.

The suit was decreed by the trial court vide Judgment and decree dated 10.7.1995 holding that the petitioner was not entitled to the benefit of Section 20(4) of the Act. Aggrieved, he preferred Revision No. 67 of 1995, which was also dismissed vide judgment and order dated 12.2.2001. The petitioner has challenged he aforesaid two orders dated 10.7.1995 and 12.2.2001 in this petition.

In so far as payment of water tax and costs of suit etc., is consented, Sri A.K. Gupta, counsel for the respondents has relied upon following extract of judgment of the revisional court:

---fdjk;snkj dh vksj ls okn dks lafLFkr fd;s tkus mijkUr y?kqokn U;k;ky; esa fu;r frfFk 9-3-90 ls iwoZ gh 8-3-90 dks fdjk;snkj usa dqy 450 #i;s fdjk;k tek dj fn;k FkkA ftldk Vs.Mj i=koyh ij vfHkys[k la[;k 49x gS ftlds vuqlkj tuojh] Qjojh] ekpZ 1990 dk fdjk;k 70 #i;s izfrekg dh nj ls o tydj dqy 450 #� tek fd;s x;s gSaA ;g Hkh fufoZokfnr gS fd /kkjk 30 ds vUrxZr blls iwoZ dk fdjk;k fdjk;snkj usa eqfUlQ U;k;ky; esa /kkjk 30 ds vUrxZr tek fd;k FkkA ek= fof/kd fLFkfr ;gh fopkj.kh; jg tkrh gS fd /kkjk 30 ds vUrxZr ,slk tek tks fof/k laxr ugha gS mldks /kkjk 20 �4� ds ykHk gsrq fdjk;snkj ds i{k esa lek;ksftr fd;k tk ldrk gS vFkok ughaA bl fcUnq ij i{kdkjksa dh vksj ls tks fof/k O;oLFkk,a U;k;ky; ds le{k izLrqr dh x;h gSa mudk eSaus xgurk ds lkFk voyksdu fd;kA ftlds voyksdu ls ;g LIk"V gks tkrk gS fd bl fcUnq ij fdjk;snkj dh vksj ls ftl egsUnz ukFk V.Mu dh fof/k O;oLFkk dk vkJ; fy;k x;k gS og fu.kZ; ekuuh; mPp U;k;ky; dh [k.M ihB ds }kjk fu.khZr jke xksiky cuke gjh�kadj] 1985 lh�ts� 134] ij vk/kkfjr gSA ijUrq edkunkj dh vksj ls ftl dsl e`nqyk n;ky dk vkJ; fy;k x;k gS ml fu.kZ; esa ekuuh; mPp U;k;ky; dh [k.MihB us jke xksiky cuke gjh�kadj ds dsl ij fopkj djus ds mijkUr ;g fu.khZr fd;k Fkk fd /kkjk 30 ds vUrxZr ,slh tek /kujkf�k tks fd fof/k laxr ugha gS mldks /kkjk 20 �4� ds vUrxZr YkkHk gsrq lek;ksftr ugha fd;k tk ldrk gSaA bl fcUnq ij ekuuh; mPp U;k;ky; ds [k.M ihB usa mDr e`nqyk n;ky ds dsl esa fuEufor lanfHkZr iz�u dks udkjkRed esa fuf.kZr fd;k gS%

Whether a tenant can have dedication of Invalid deposit made u/s 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for taking advantage of Sub-section 4 of Section 20 of the said Act.

vr% e`nqyk okys dsl dk vuq�kj.k fd;s tkus gsrq ;g U;k;ky; ck/; gSA D;ksafd ;g [kaM ihB dk fu.kZ; gS tcfd fdjk;snkj dh vksj ls ftl egsUnz ukFk V.Mu ds dsl dk vkJ; fy;k x;k gS og ,dy ihB ds }kjk fuf.kZr dsl ds izfr iw.kZ lEeku O;Dr djrs gq, e`nqyk n;ky ds dsl dk vuqlj.k fd;s tkus ds fof/kd n`f"Vdks.k ls vkKkid ikrh gS] D;ksafd ;g blh fcUnq ij [k.M ihB ds }kjk fn;k x;k fu.kZ; gSA vr% ;g fof/kd fLFkfr lqfLFkj gks tkrh gS fd /kkjk 20 �4� dk ykHk izkIr djus gsrq /kkjk 30 ds vUrxZr tek dh xbZ ,slh /kujkf�k dks tks fd fof/k laxr ugha gS dks lek;ksftr ugha fd;k tk ldrkA bl dkj.k fdjk;snkj /kkjk 20 �4� dk ykHk izkIr djus dk Hkh ik= ugha FkkA ;gkWa ;g Hkh mYys[kuh; gS fd fdjk;snkj usa /kkjk 20�4� ds vUrxZr ftl /kujkf�k dks tek fd;k gS mlesa okn O;; ds fcUnq ij dksbZ Hkh /kujkf�k tek ugha gSA

He further submits that from Judgment it is apparent that the sum of Rs. 450 was deposited by the petitioner. The water tax was not deposited as the tender indicates only deposit of rent for months of January to March, 1990 (a) Rs. 70 per month and water tax dues but does not include costs of suit.

Conclusions:

After hearing counsel for the parties and perusal of records, it appears that water tax has been levied in the State of Uttar Pradesh w.e.f. 1.4.1986, which was demanded for the first time by the landlord vide his notice dated 1.8.1989. The trial court has noted this position and has returned a finding that the tenant in his statement before the Court had admitted that he was liable to pay water tax but had neither paid to the landlord nor had deposited the same within time u/s 30 of the Act, as such, he had not complied with the provisions of Sub-sections (3) and (5) of Section 30 of the Act claiming that water tax was part of rent deposited by him under the Act. In view of this admitted position, the trial court decreed the suit for a sum of Rs. 2771.40 p. in favour of the landlord.

In revision, the petitioner assailed the findings in the suit on the ground that he had already deposited Rs. 450 which included water tax and costs of the suit, and the deposit was far in excess than what was due to the landlord u/s 30(1) of the Act.

The revisional court after considering the plea of the petitioner and relying upon a decision in Smt. Mridula Dayal v. VIth Additional District Judge, Allahabad and Ors. 1986 AWC 695, dismissed the revision. In Smt. Mridula Dayal (supra), a Division Bench of this Court held that validity of deposit u/s 30(1) of the Act is to be seen in regular suit. In that case, the trial court held that deposit made by the petitioner u/s 30(1) of the Act could neither be adjusted nor could be extended for the benefit of Section 20(4) of the Act.

Counsels for both the parties relied upon paragraph 13 of Smt. Mridula Dayal (supra), which is as under:

We have no quarrel with the proposition that u/s 30 deposit of rent can be made by a tenant only when the landlord has refused to accept the amount offered to him as rent, but then we are not able to subscribe to the view that in a case where the landlord refuses to accept the same and the refusal was, in the circumstances, justified, the person darning to be the tenant cannot deposit the same u/s 30(1) and that such deposit would be invalid and would not enure for the purposes of Sub-section (4) of Section 20.

From the facts, it is evident that the rent due from December, 1983 for the first time was deposited by the petitioner u/s 30(1) of the Act on 7.7.1984 in Misc. Case No. 107 of 1984. The contention of the petitioner that the landlord as well as the counsel, who had given notice to him had also refused accept the rent also has no merit. A counsel may be engaged for giving a notice but he has no authority to accept the rent on behalf of the landlord unless specifically authorized to do so by him. Admittedly, Sri S.N. Sharma, counsel who had not been given any such authority and there is nothing on record to draw such a conclusion that he was agent of the landlord or authorized by him to accept rent from the tenant. Had he accepted rent in the circumstance would have meant that he was landlord as under the definition of ''landlord'' u/s 3(j) of the Act, he is a person to whom rent is payable. Since rent was not payable to Sri S.N. Sharma in either of the circumstance, he rightly refused to accept the same. Moreover, in reply to the third notice dated 19.12.1989 demanding water tax as part of the rent, the petitioner in his reply unequivocally denied his liability stating therein that the notice was illegal and no amount towards rent was due. Thus, the denial was, in no uncertain terms, about the legality of the notice as well as payment of water tax as part of rent. However, subsequently in his statement before the Court, the tenant admitted that he had given his consent and liability to pay water tax when it was levied on 1.4.1986 but he had not paid the same and the amount of Rs. 450 sent by money order did not include water tax.

It is admitted to the parties that costs of suit was not paid but the case of the petitioner is that the costs can be adjusted in the excess amount of Rs. 450 tendered by the tenant. The only question that remains is that whether costs have been adjusted in the amount of rent and water tax paid by the petitioner?

It appears from the above judgment that a sum of Rs. 450 was paid on 8.3.1990 in pursuance of the summon in suit No. 27 of 1990 which included rent for the months of January, February and March, 1990 @ Rs. 70 per month and water tax etc. The revisional court has given a categorical finding in this regard holding that the amount deposited by the petitioner u/s 20(4) of the Act does not contain costs of the suit. The finding of the revisional court that the costs have not been deposited cannot be said to be illegal or perverse.

I am of considered opinion that deposit made by the petitioner in pursuance of the first and second notices by the landlord technically was not valid. When the landlord refuses the rent, the tenant is under obligation to deposit rent u/s 30 of the Act immediately thereafter. Sending of rent for subsequent months as well as arrears by money order again and again is not permissible under the Act as it does not contain any provision for regularization of such repeated tenders of rent. First refusal is sufficient for the tenant to deposit outstanding rent u/s 30(1) if he wants to take advantage of such deposit u/s 20(4) of the Act. The respondent was justified in the circumstances in not accepting rent which did not include water tax w.e.f. 1.4.1986 particularly when it was part of rent as admitted by the tenant. Moreover, the cost was not paid as held by the revisional court. The findings of facts by the courts below cannot be said to be perverse.

No illegality or perversity in the impugned orders could be established by counsel for the petitioner in the judgments of the courts below.

For the reasons slated above, the petition is dismissed with the direction that the petitioner will hand over peaceful vacant possession of the disputed accommodation to the landlord within two months from today. In case of failure, he will be evicted by Police force end the arrears of rent if any, will be recoverable as arrears of land revenue. No order as to costs.