Full Judgment Text
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PETITIONER:
MAIKU
Vs.
RESPONDENT:
VILAYAT HUSSAIN THROUGH L.Rs.
DATE OF JUDGMENT10/04/1986
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
DUTT, M.M. (J)
CITATION:
1986 AIR 1645 1986 SCR (2) 461
1986 SCC (2) 554 1986 SCALE (1)1033
ACT:
United Provinces (Temporary) Control of Rent and
Eviction Rent, 1947 - S. 7C - Rent tendered by tenant -
Landlord refused to accept - Application for permission to
deposit rent in Court - Tenant’s allegations about
landlord’s refusal to accept rent offered by tenant
sufficient to grant permission - Eviction suit - Tenant’s
failure to establish that landlord refused to accept rent
offered by him - Tenant liable to eviction on ground of
default.
Deposit of rent in Court - Service of notice on
landlord - When to be made by Court.
HEADNOTE:
The appellant-tenant neither paid the arrears of rent
in spite of verbal demand, notice of demand, and notice
under s.106 of the Transfer of Property Act, nor vacated the
premises. The landlord, therefore, filed a suit claiming
arrears of rent and damages for the period of default as
also pendente lite and future.
The claim was resisted by the tenant contending that he
was not a defaulter, that the landlord had refused to accept
the rent tendered by him and that he deposited the same in
the Court under s. 7C of the United Provinces (Temporary)
Control of Rent and Eviction Act, 1947. The trial Court
decreed the suit holding that the deposit of arrears of rent
by the tenant was not a valid deposit and, therefore, it
could not absolve the liability of the tenant from eviction
inasmuch as the tenant had failed to establish that the
landlord had refused to accept the tender made by him.
The Additional Civil Judge allowed the appeal by the
tenant and held that he was not a defaulter on account of
the deposit made under s. 7C of the Act.
In the second appeal by the landlord, the High Court
set
462
aside the judgment and decree of the Lower Appellate Court
as regards eviction and restored the decree of the trial
Court.
In the appeal to this Court it was contended on behalf
of the appellant-tenant: (i) that if the arrears of rent had
been deposited with permission of the Court under s. 7C of
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the Act, it must be presumed that the landlord had refused
to accept the rent tendered by the tenant; (ii) that as the
landlord did not raise any objection in the proceedings
under s. 7C he can neither question the validity of the
order passed in those proceedings nor the Court can go into
the question of validity of the deposits made; and (iii)
that the First Appellate Court had recorded a finding of
fact believing the statement of the tenant that the landlord
had refused to accept the rent when tendered to him and also
refused to accept the amount sent by money-order and this
finding could not have been set aside by the High Court in
second appeal.
Dismissing the appeal and disposing of the Civil
Miscellaneous Petition,
^
HELD: 1. There is no error, much less a manifest error,
for interference with the judgment of the High Court. [469
D-E]
2. The mere fact that an application under s. 7C for
permission to deposit the arrear of rent has been allowed by
the Munsif will 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. The tenant must establish before the trial Court
the factum of refusal by the landlord when the payment was
sought to be made to him. [469 C-D]
3. Section 7C permits a tenant to deposit the arrears
of rent in Court only under two conditions : (i) when the
landlord refuses to accept any rent lawfully paid to him by
the tenant in respect of any accommodation, and (ii) where
any bona fide doubt or dispute has arisen as to the persons
who were entitled to receive any rent referred to in sub-s.
(1) in respect of any accommodation. If the deposit of
arrears of rent was a valid deposit in accordance with the
requirements of s. 7C certainly it will amount to payment to
the landlord and the tenant will be absolved from the
liability of being
463
evicted. But the Court itself cannot go into the question
whether the landlord had refused to accept the rent paid
lawfully or otherwise. If the Munsif had only to accept the
application and accord permission to the tenant to deposit
the arrears in Court merely on the basis that necessary
allegations in the application as required by s. 7C had been
made, he was not obligated to enquire whether the
allegations were correct or not. However, the Court trying
the suit for eviction cannot be precluded from enquiring
about the validity of the permission under s. 7C. [467 C-F]
4. In the instant case, the finding of fact recorded by
the First Appellate Court believing the statement of the
tenant that the landlord had refused to accept the rent when
tendered to him and also refused to accept the amount sent
by money-order, is based on surmises and conjectures than on
the basis of the material on record. Therefore, the High
Court was fully justified in reversing this finding in
second appeal as it was vitiated in law. The only evidence
is the deposition of the tenant which the trial Court did
not rely upon, and even the First Appellate Court did not
categorically say that it believed the deposition of the
defendant. Since the compliance of the ingredients of s. 7C
had not been established, the tenant-appellant was liable to
be evicted. [467 G; 469 A-B]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 413 of
1986
From the Judgment and Order dated 10th February, 1976 of the
Allahabad High Court in Second Appeal No. 2337 of 1966.
R.K. Jain and Shakeel Ahmed for the Appellant.
N.A. Khan, Manoj Swarup and U.S. Prasad for the
Respondents.
The Judgment of the Court was delivered by
R.B. MISRA, J. The only question for consideration in
this appeal by special leave is whether the deposit of
arrears of rent under s. 7C of the United Provinces
(Temporary) Control of Rent and Eviction Act, 1947 will save
the tenant from the penalty of being evicted for non-payment
of rent.
464
The appellant is a tenant of the respondent on a
monthly rent of Rs. 6.25 per mensem. He fell into arrears of
rent amounting to Rs. 318.75 for the period from 1st
October, 1959 to 31st December, 1963. The tenant did not pay
the aforesaid amount in spite of the verbal demand.
Consequently, the landlord served upon the tenant a notice
of demand. The tenant, however, failed to comply with the
said notice, hence he became a defaulter. The landlord
thereafter served another notice on the tenant under s. 106
of the Transfer of Property Act. The tenant, however,
neither vacated the premises nor cleared the arrears of
rent. The landlord was, therefore, obliged to file a suit.
He, however, claimed a sum of Rs.176.68 as arrears of rent
for the period from Ist October, 1961 to 8th February, 1964
the claim for rent for the remaining period having become
barred by time. He also claimed a sum of Rs. 58.23 as
damages for the period from 9th February, 1964 to 22nd
October, 1964 as also pendente lite and future damages at
the rate of Rs. 6.25 per mensem.
The claim was resisted by the tenant on the ground that
he was not a defaulter inasmuch as whatever rent was
tendered to the landlord he refused to accept the same and,
therefore, he was constrained to deposit the amount, that
is, a sum of Rs. 231.25 for the period from Ist September,
1961 to 30th September, 1964 in the Court under s. 7C of the
Act. He also disputed the date of tenancy as alleged by the
respondent-landlord.
The trial Court came to the conclusion that the
defendant became a tenant from 17th January, 1962 and not
from 1959, as alleged in the plaint. As the deposit of
arrears of rent by the tenant under s. 7C was not a valid
deposit, therefore, it could not absolve the liability of
the tenant from eviction inasmuch as the defendant had
failed to establish that the landlord had refused to accept
the tender made by the tenant. Accordingly, the suit for
recovery of arrears of rent amounting to Rs. 154 and damages
amounting to Rs. 58.23 was decreed with pendente lite and
future mesne profits at the rate of Rs. 6.25 per mensem.
On appeal the learned Addl. Civil Judge reversed the
finding of the trial court and held that the tenant was not
a defaulter on account of the deposit made by him under s.
7C of
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the said Act and set aside the judgment and decree of the
trial Court for eviction. In second appeal the High Court
set aside the judgment and decree of the lower appellate
court as regards eviction and restored the decree of the
trial Court. The tenant has now come in appeal to this Court
as stated earlier, by special leave.
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Shri R.K. Jain appearing for the appellant has
contended that if the arrears of rent had been deposited
with permission of the court under s. 7C of the Act it will
be presumed that the landlord had refused to accept the rent
tendered by the tenant. As a second limb to this argument it
was contended that it was not open to the Court in a suit
for eviction to go into the question of validity of the
deposit made under s. 7C. He produced a certified copy of
the order of the Munsif City, Kanpur dated 30th July, 1962
allowing the application made by the tenant for permission
to deposit the arrears of rent. The Order reads :
"This is an application under s. 7C(1) of the U.P.
Act III of 1947. The opp. party was served with
the notice. No objection filed. The case falls
under s. 7C(1) the ingredients of which are made
out. Hence the applicant tenant is allowed to
deposit rent in this Court regularly under s.
7C(1) and the opp. party landlord is entitled to
withdraw the money."
On the strength of this order it was strenuously contended
by Shri Jain that no objection was ever raised by the
landlord in proceedings under s. 7C of the Act and,
therefore, it is not open to him to raise the question of
validity of the order passed under s. 7C.
The question that squarely falls for consideration is
whether the order granting permission to the tenant to
deposit the arrears of rent in court is sacrosanct and
cannot be challenged in a regular suit for eviction. Indeed,
the Munsif before whom the application for permission was
filed was not required to determine the rights and
obligations of the tenant. All that he had to do on deposit
of rent under s. 7C was to issue a notice to the landlord
informing him that such deposit had been made. Section 7C so
far as material, provides :
466
"7C Deposit of Rent in Court:- (1) When a landlord
refuses to accept any rent lawfully paid to him by
a tenant in respect of any accommodation the
tenant may in the prescribed manner deposit such
rent and continue to deposit any subsequent rent
which becomes due in respect of such accommodation
unless the landlord in the meantime signifies by
notice in writing to the tenant his willingness to
accept.
(2) Where any bona-fide doubt or dispute has
arisen as to the person who is entitled to receive
any rent referred to in sub-s.(1) in respect of
any accommodation, the tenant may similarly
deposit the rent stating the circumstances under
which such deposit is made and may until such
doubt has been removed or such dispute has been
settled by the decision of any competent Court, or
by settlement between the parties, continue to
deposit, in like manner, the rent that may
subsequently become due in respect of such
building.
(3) The deposit referred to in sub-s. (1) or (2)
shall be made in the Court of the Munsif having
jurisdiction in the area where the accommodation
is situate.
(4) On any deposit being made under sub-s. (1),
the court shall cause a notice of the deposit to
be served on the landlord, and the amount of
deposit may be withdrawn by the landlord on
application made by him to the Court in this
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behalf.
Section 7C gives a right to the tenant to deposit rent
when a landlord refuses to accept any rent lawfully paid to
him by the tenant. A tenant may allege that the landlord had
refused to accept any rent lawfully paid to him. The section
itself does not require the Munsif to go into the question
whether the landlord had refused to accept the rent paid
lawfully or otherwise. We fail to understand how, as the
learned Munsif observed, the opposite party was served with
a notice. Sub-s. (4) of s. 7C contemplates of only one
notice after the deposit, in pursuance of the permission
granted to deposit the arrears of rent under this section.
In the absence
467
of any provision for sending notice to the landlord before
granting permission to the tenant, we fail to understand how
a notice was sent to the landlord before the passing of the
order. The sub-s. clearly contemplates that on any deposit
being made under sub-s. (1) the court shall cause a notice
of the deposit to be served on the landlord and the amount
of deposit may be withdrawn by the landlord on application
made by him to the court in this behalf. If the Munsif was
to accord the permission to deposit the arrears of rent
merely on being satisfied that the necessary allegation as
required by s. 7C of the Act has been made, viz. the
landlord had refused to accept the rent lawfully tendered to
him, he was not obligated to enquire whether the allegation
made in the application was correct or not.
Section 7C permits a tenant to deposit the arrears of
rent in court only under two conditions : (1) when the
landlord refuses to accept any rent lawfully paid to him by
the tenant in respect of any accommodation, and (ii) where
any bonafide doubt or dispute has arisen as to the person
who was entitled to receive any rent referred to in sub-s.
(1) in respect of any accommodation. If the deposit of
arrears of rent was a valid deposit in accordance with the
requirements of s. 7C certainly it will amount to payment to
the landlord and the tenant will be absolved from the
liability of being evicted. But if the Munsif had only to
accept the application and accord permission to the tenant
to deposit the arrears in court merely on the basis that
necessary allegations in the application as required by s.
7C had been made, the court trying the suit for eviction
cannot be precluded from enquiring about the validity of the
permission under s. 7C.
It was next contended for the appellant that the first
appellate court had recorded a finding of fact believing the
statement of the tenant that the landlord had refused to
accept the rent when tendered to him and also refused to
accept the amount sent by money order and this finding could
not have been set aside by the High Court in second appeal.
We are afraid this contention has no substance. The finding
recorded by the first appellate court is based more on
surmises and conjectures than on the basis of the material
on record. We would do no better than quote the observations
made by the first appellate court :
468
"The appellant having admitted deposit of rent in
court under s. 7C and the court having accepted
the deposit holding the ingredients of the section
to have been made out and permitting the appellant
to continue depositing rent in future also, prima
facie the deposit has to be treated as valid and
the burden lay on the plaintiff to show that the
entire proceedings under s. 7C were invalid and
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the Munsif had absolutely no jurisdiction to
entertain the application and accept the
deposit... The circumstances of the case also
indicate that the rent must have been tendered by
the defendant and might have been refused by the
plaintiff. When the defendant had applied for
allotment of the shop in his name, plaintiff had
filed objections before the Rent Control and
Eviction Officer but his objections were over-
ruled and allotment was made in favour of the
defendant. This was bound to cause annoyance to
the plaintiff and he might have refused to accept
the rent on that account."
Obviously, the first appellate court was of the opinion
that once permission had been granted by the Munsif to the
tenant to deposit arrears of rent it would be presumed that
the permission was a valid one under s. 7C and this view of
that court had coloured its findings and it had entered into
surmises and conjectures.
The trial Court had rejected the testimony of the
defendant with regard to the tender of rent on the ground
that he was an interested witness. According to his
deposition he had gone to pay the arrears of rent prior to
bringing the application under s. 7C and that he had twice
tendered the amount of arrears by hand to the plaintiff in
the presence of plaintiff’s son and the plaintiff had
refused to accept it. He further deposed that the rent was
tendered by money order also but the plaintiff had refused
to accept it. The defendant did not care to file the postal
receipts in the present case nor did he produce the
plaintiff’s son before whom he made tender which was refused
by the plaintiff. Unless the evidence was filed in the
present case that could not be taken into consideration by
the court by summoning the file of some other case. The
first appellate court had, however, relied upon the
469
postal money order receipts by looking into the records of
the proceedings under s. 7C. The High Court in the
circumstances was fully justified in reversing the finding
recorded by the first appellate court as it was vitiated in
law.
It may look hard that the tenant who had deposited the
rent in court under s. 7C, has to be evicted as the
ingredients of s. 7C had not been established but there is
no help. In the instant case the only evidence is the
deposition of the tenant which the trial court did not rely
upon and even the first appellate court did not
categorically say that it believes the deposition of the
defendant. The law in our opinion is clear that the tenant
must establish before the court in which the suit for
eviction has been filed, the factum of refusal by the
landlord when the payment was sought to be made to him. The
mere fact that an application under s. 7C for permission to
deposit the arrears of rent has been allowed by the Munsif
will 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.
For the reasons given above we do not find any error,
much less a manifest error, for interference with the
judgment of the High Court. The appeal is accordingly
dismissed, but there is, however, no order as to cost. With
the dismissal of the appeal the stay order stands vacated
and no separate order is needed. The civil miscellaneous
petition is disposed of accordingly.
A.P.J. Appeal dismissed.
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470