Smt. Mithlesh Kumari Agrawal and Others vs VIth Additional District Judge and Others

Sudhir Agarwal, J.—Order dated 29.11.2012 having been recalled vide order of date passed on Recall Application filed by applicants- respondents 3 and 4, writ petition is restored to its order number. As requested by learned counsel for parties, I proceeded to hear this case and decide on merits at this stage.

Heard Sri D.S. Srivastava, Advocate, for applicants-respondents 2 and 3 and Sri Vishnu Gupta, Advocate, for petitioner. Cs

It is contended that neither respondent-tenant made any deposit u/s 30 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") nor such deposit made in suit in question i.e. S.C.C. Suit No. 18 of 1992. His claim was that he deposited rent up to September 1992 in Suit No. 14 of 1988 which was dismissed on 21.7.1989 and Misc. Application No. 5/74 of 1989 in the aforesaid suit was also dismissed on 27.11.1989. Another Misc. Application No. 6/74 of 1989 for restoration filed by the landlord was dismissed on 5.10.1991 and thereafter no proceedings were pending in the aforesaid suit which could have allowed the tenant to deposit any amount in the aforesaid suit and learned Revisional Court in giving credit to the tenant in respect to deposit made from October 1989 to September 1992 in Original Suit No. 14 of 1988 has committed patent error in law and, therefore, the revisional order cannot sustain.

The record shows that Suit No. 14 of 1988, with respect to rent and damages, was dismissed in default on 21.7.1989. A Misc. Application Case No. 5/74 of 1989 was filed for restoration of Suit which was allowed by order dated 18.11.1989 on payment of cost of Rs. 20/- but since the cost was not paid, the restoration order stood rejected and the suit also dismissed on 27.11.1989. Again Misc. Application No. 6/74 of 1989 was filed for restoration but it was also dismissed on 5.10.1991, Therefore for all practical purposes the regular suit as well as the Misc. Applications therein ceased to be functional on 5.10.1991 when the last Misc. application was rejected. There was no occasion for tenant to make any deposit of rent in the aforesaid suit or Misc. proceeding which have already come to an end. Nothing could have allowed him to deposit rent upto September 1992 in the said proceedings.

Learned counsel for respondents could not dispute this fact that they had made deposit in Suit No. 14 of 1988, which was dismissed on 21.7.1989. Mere factum that Restoration Application was pending would not result in making suit pending. It is also interesting to note that Restoration Application No. 5/74 of 1989 in Suit No. 14 of 1988 was also dismissed on 27.11.1989 and, thereafter what was pending, is Misc. Case No. 6/74 of 1989 seeking recall of order dated 27.11.1989, whereby earlier Restoration Application was dismissed for non-prosecution. Therefore, the Application No. 6/74 of 1989 was not an application seeking restoration of the suit, but it was an application for restoration of an earlier Restoration Application and even this application was dismissed on 5.10.1991. It, thus, cannot be said that deposit made by petitioner in Suit No. 14 of 1988 which was already dismissed on 21.7.1989 was a valid deposit entitling petitioners to claim any benefit for the purpose of Section 20(4) of Act, 1972.

For the purpose of giving benefit of Section 20(4), unless a valid payment has been made, no advantage can be claimed by tenants. It is well established principle and I may refer only a few of the authorities to fortify what I have said here at.

A Division Bench of this Court in Smt. Mridula Dayal v. VIth Additional District Judge, Allahabad and others, 1986 (2) ARC 132 : (1986 All LJ 1051) has held that fiction under subsection (6) of Section 30 with respect to valid deposit would not come into picture where deposit has been made by a person in circumstances not covered by sub-section (1) of Section 30, Having said so in para 10 of the judgment the Court said:

If, on the other hand, the deposit has either not been made in the circumstances contemplated by sub-section (1) of Section 30 or not in the premised manner, it is not a deposit under sub-section (1) 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.

Again it has reiterated in para 11 of the judgment:

...we have no hesitation in saying that a deposit made by a tenant in circumstances not contemplated under sub-section (1) of Section 30, cannot be deemed to be payment made to the landlord as provided by sub-section (6) of Section 30, consequently it cannot be taken advantage of for claiming benefit of sub-section (4) of Section 20 of the Act.

Then this issue was considered lately by Apex Court, in Jagat Prasad v. Distt. Judge, Kanpur and Ors . It is a very short judgment and the Court said:

Law prescribed the procedure as to the deposit under U.P. Urban Buildings (Regulation of Letting, Rent Eviction) Act, 1972. Such a procedure if complied with alone will be a valid defence to a petition for eviction on the ground of arrears of rent.

(Emphasis added)

There is however a discordant note in a subsequent judgment of this Court in Ch. Badri Dass (Decd.) through L.Rs. Vs. Additional District Judge, Dehradun and others, wherein the Court relied on the decision in Mahendra Nath Tandon v. VIth Additional District Judge, Kanpur Nagar and others, 1997(30) ALR 22 held that the tenant is entitled to benefit of deposit made by him u/s 30(1) of the Act even though such deposit may not valid in terms of Section 30(1) of the Act as Section 20(4) of the Act provides that the tenant can deposit the amount after deducting the amount already deposited by him under sub-section (1) of Section 30 of the Act.

However, subsequent decisions of this Court, as also of Apex Court, show that binding authority on this Court in respect to this aspect is that "a deposit not made in accordance with procedure prescribed in Section 30 will not attract benefit u/s 20(4) of Act, 1972".

This issue was considered by a Full Bench in G. Singh v. A.D.J, 2000 (1) ARC 653 and it held that a deposit continued to be made u/s 30 after receipt of notice of demand upon the landlord, is not a legal deposit and shall not be treated to be an amount paid to landlord. Thereafter this Court in Writ Petition No. 19656 of 2003 (Shiv Raj Singh v. Sri Jitendra Babu and others), decided on 21.05.2003 following the above Full Bench judgment, as also the Apex Court judgment in E. Palanisamy Vs. Palanisamy (D) by Lrs. and Others, , held that unless the deposit u/s 30 is strictly in compliance of terms of Section 30, it would not confer any benefit upon tenants.

This view was reiterated by Hon''ble S.U. Khan, J. in Smt. Chameli Devi Vs. VIth Additional District Judge and Another, .

A similar issue came up before Apex Court in a matter arising out of Delhi Rent Control Act, 1951 in Atma Ram Vs. Shakuntala Rani, . The Court therein referred to an earlier decision of itself in Jagat Prasad v. District Judge, Kanpur and others (supra) which was a matter arising out of Rent Act of State of U.P.; and, held, that if the rent is not deposited strictly in accordance with procedure prescribed in statute, no benefit can be allowed to tenant. The Court said:

...There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.

(Emphasis added)

In Noor Mohammad and Wasi Ahmad Vs. XIVth Additional District and Sessions Judge and Others, this Court took the view that after notice of demand from landlord, as also after filing the suit for eviction, and service of summons upon tenant, he (tenant) is not entitled to deposit rent else where except in the Court in which the suit was filed. The Court followed Division Bench decision in Haider Abbas v. Additional District Judge, 2006 (62) ALR 552.

In Dharam Prakash Gupta (D) by L.Rs. Vs. Addl. District Judge and Others, this Court held that once the tenant who moved application for deposit of rent in court has died, his Advocate ceased to have any authority to continue to deposit rent in the court though his heirs would automatically become tenant by operation of law and could have submitted tender for deposit.

Unless valid deposit is made u/s 30(1), no benefit u/s 20(4) can be claimed. This view has been reiterated in Mahendra Kaur Vs. VIth Additional District Judge and Another, .

It is well settled that if rent has not been paid to landlord directly, only such rent can be given credit which is deposited with any authority in accordance with law and not the illegal or unauthorized payment made where it was not permissible or possible. In the case in hand, the aforesaid deposit, therefore, could not have been held to be a valid deposit. In my view, therefore, Revisional Court has clearly committed error in passing the impugned order. The Impugned revisional order, therefore, cannot sustain. In the result, writ petition is allowed. Impugned revisional order dated 22.8.2000 (Annexure 1 to writ petition) is set aside. Trial Court''s judgment and decree dated 20.8.1999 is restored and confirmed.