Smt. Bubboo Devi and Others vs III Addl District Judge and Others

S.D. Agarwala, J.—This is a petition under Article 226 of the Constitution of India arising out of proceedings in a suit No. 312 of 1978 filed by Sri Sheo Murti Gupta, Respondent No. 3 against the Petitioners for ejectment and arrears of rent and damages. Sri. Sheo Murti Gupta is the landlord and the Petitioners are the tenants. The property in dispute is house No. 206/17, Pura Baldi, Kydganj, District Allahabad. The suit was filed on the allegation that Sheo Murti Gupta had purchased the accommodation in dispute on 4th January, 1978. It was further alleged that, thereafter, Sheo Murti Gupta further purchased arrears of rent also.

The Petitioners tenants contested the suit on the ground that in fact Sheo Murti Gupta was not the landlord. It was further urged that the Petitioners bad made the deposit u/s 30 of U.P. Act No. 13 of 1972. It was further urged that on the first date of bearing, the Petitioners had deposited the entire arrears of rent as claimed in the suit and, consequently, the plea is taken in the written statement that the Petitioners were entitled to the benefit of Section 20 Sub-clause (4) of the Act.

The trial Court decreed the suit holding that the Petitioners were not entitled to the benefit of Section 20 Sub-clause (4) of the Act and, consequently, the decree for ejectment was passed against them on 7th March, 1979.

Aggrieved by the said decision, the Petitioners filed a civil revision u/s 25 of the Provincial Small Causes Court Act. The revision came up for hearing before the IIIrd Additional District Judge, Allahabad, who by his judgment dated 30th July, 1981 dismissed the revision.

The Petitioners have, consequently, challenged the judgments dated 7th March, 1979 and 30th July 1981 by means of the present petition.

I have heard learned Counsel for the parties.

Learned Counsel for the Petitioners has urged shat the view taken by the Courts below that the Petitioners are not entitled to the benefit of Section 20 Sub-clause (4) of the Act is a view manifestly erroneous.

The case of the Petitioners is that before the filing of the suit, they had deposited Rs. 140/- towards arrears of rent from 1st February, 1974 to 30th April, 1978 and, thereafter from 1st May, 1978 to 31st July, 1978 at the rate of Rs. 2.50 paise per mensem, total amount being Rs. 145/-. This deposit is alleged to have been made u/s 30 of the Act. It has been further alleged that on the first date of hearing, the Petitioners deposited Rs. 579.75 paise.

The trial Court as well as the revisional Court have not accepted the deposit of Rs. 579.75 paise as a valid deposit as according to both the Courts below, it was a conditional deposit. Having recorded this finding, the Courts below have not considered the effect of the deposit made by the Petitioners u/s 30 of the Act. The question, therefore, to be considered is as to whether the deposit made by the Petitioners on the first date of bearing was a conditional deposit of not and as to whether this amount has to be considered while the question of benefit of Section 20 Sub-clause (4) of the Act is being considered.

Annexure 4 to the supplementary affidavit of Amrit Lal filed in this Court on 4th November, 1988 is the copy of the tender by which the amount was deposited on the first date of bearing. In this tender it has been categorically stated that the amount is being deposited at the rate of Rs. 10/- as alleged by the Plaintiff. From the tender, no other condition is found in regard to the deposit. The Courts below have rejected the deposit solely on the ground that it was mentioned in the tender that the amount is being deposited ''as alleged'' by the Plaintiff.

In Mahendra Pratap Garg Vs. Smt. Vijay Laxami Gengal, , the Division Bench of this Court bad an occasion to consider the effect of the term ''unconditional'' used in Section 20 Sub-clause (4) of the Act. The Bench took the view that the term ''unconditional'' has been used in Section 20 Sub-clause (4) of the Act in a similar sense as has been used in Section 20 Sub-clause (6) of the Act. Section 20 Sub-clause (6) of the Act provides as follows:

Any amount deposited by the tenant under Sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties'' pleadings and subject to the ultimate decision in the suits.

In the circumstances, if a deposit is made u/s 20 Sub-clause (4) of the Act with a rider that it shall be without prejudice to the parties pleadings and subject to the ultimate decision of the suit, the said deposit cannot be said to be a conditional deposit.

In the instant case, in the tender the word ''alleged'' has only been used. No condition has been attached to the deposit. It has not been stated that the amount deposited should be kept in deposit and should not be paid to the landlord till the decision of the suit. Neither it has been stated that the amount should not be paid to the landlord unless he accepts it in full discharge of the liability. There is no other condition.

The decision in the case of M.P. Garg (supra) went to the Hon''ble Supreme Court. The judgment has been affirmed by the Hon''ble Supreme Court, which is reported in 1985 1 ARC 298.

In view of the above, 1 am clearly of the opinion that merely because the tenant Petitioners used the word ''alleged rent'' in the tender while depositing the amount on the first date of hearing, the Petitioners cannot be denied the benefit of the said deposit. The view to the contrary is manifestly erroneous and as such, the judgment of the trial Court as well as of the revisional Court is liable to be set aside.

The Petitioners, as I have already stated above further claimed the benefit of deposit made u/s 30 of the Act. This is a matter of dispute. Since the matter has to be remanded to the trial Court, the trial Court will also consider this question as to whether the deposit made u/s 30 of the Act can be treated as valid deposit while granting the benefit of Section 20 Sub-clause (4) of the Act to the Petitioners.

The Petitioners have in the rejoinder-affidavit taken the plea that all the heirs of the Petitioners-tenants have not been impleaded as parties in the suit, and consequently, the suit is not maintainable. Since the matter is being remanded, in the interest of justice I think it proper that the Petitioners may be permitted to take up this plea before the trial Court so that this question be also decided by it.

Sri. G.P. Bhargava, Learned Counsel for the Respondent has urged that since the Petitioners have denied the title of the landlord, he is not entitled to the benefit of Section 20 Sub-clause (4) of the Act. It will be open to the Respondents to raise this question before the trial Court.

In the result the petition is allowed. The orders dated 7th March, 1979 and 20th July, 1981 are, hereby, quashed. The matter is remanded to the trial Court for decision afresh in the light of the observations made above. The parties shall be granted further opportunity to clarify their pleadings and lead evidence. Since the suit bad been filed in the year 1978, it is desirable, in the interest of justice, that the same be disposed of very expeditiously, as far as possible, within six months from the date a certified copy of this order is produced before it. Parties are directed to bear their own costs. The interim order dated 28-8-1981, confirmed on 19-7-1982 is hereby, vacated.