Allahabad High Court
Smt. Kalawati vs Deen Dayal Sharma on 30 August, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 26.7.2017 Judgment delivered on 30.8.2017 Court No. - 2 Case :- MATTERS UNDER ARTICLE 227 No. - 4290 of 2017 Petitioner :- Smt. Kalawati Respondent :- Deen Dayal Sharma Counsel for Petitioner :- Kamlesh Kumar Tiwari Counsel for Respondent :- R.P. Tiwari Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri K.K. Tiwari, learned counsel for the petitioner-defendant/tenant and Sri R.P. Tiwari, learned counsel for the respondent-landlord/plaintiff.
Facts of the case:-
2. Briefly stated facts of the present case are that the respondent plaintiff is the owner and the landlord of Bunglow No.90, Civil Lines, Jhansi. In the said Bunglow, there is a house bearing new Municipal No.1455 owned by the respondent-plaintiff in which the petitioner-defendant was tenant at monthly rent of Rs.200/-. According to the respondent-plaintiff, the petitioner-defendant defaulted in payment of rent since 1.7.2006 and as such he issued a notice dated 16.8.2008 to the petitioner-defendant/tenant demanding arrears of rent and terminating the tenancy. The said notice was duly served upon the petitioner-defendant on 22.8.2008. However, the petitioner-defendant neither paid arrears of rent nor vacated the tenanted house. Consequently, the respondent-plaintiff/landlord filed SCC Case No.59 of 2008 in the Court of Judge, Small Causes Court for eviction of the petitioner-defendant from the disputed house and payment of arrears of rent of Rs.5340/- for the period 1.7.2006 to 21.9.2008 and thereafter damages @ Rs.40/- per day amounting Rs.960/- from the date of filing of the case. The petitioner-defendant filed his written statement on 26.3.2010 being paper no.24C. In her written statement, the petitioner-defendant alleged that the rent for the period subsequent to 1.7.2006 was not accepted by the respondent-plaintiff and as such, she deposited the rent for the period 1.7.2006 to 31.8.2009 in Misc. Case No.58 of 2009 under Section 30(1) of the Act in the Court of Civil Judge (J.D.), Jhansi. As per facts noted in the impugned order dated 14.4.2011 passed by the Judge, Small Cause Court, Jhansi, the petitioner-defendant had short deposited a sum of Rs.758/- by the date of filing the written statement i.e. 26.3.2010. She deposited a sum of Rs.800/- by tender 33C dated 8.4.2010. The petitioner-defendant took the stand before the Judge, Small Causes Court that the date of first hearing is 12.4.2010 by which date, the entire amount in terms of Section 20(4) of the Act or Order XV Rule 5 CPC stood deposited and therefore, she was entitled for the benefit of the provisions of Section 20(4) of the Act. The aforesaid sum of Rs.758/- was found to be short deposit even after adjustment of the amount deposited by the petitioner-defendant under Section 30 of the Act. The Judge, Small Causes Court found that a sum of Rs.7600+Rs.800+Rs.600 total Rs.9,000/- was illegally deposited by the petitioner-defendant under Section 30 of the Act and therefore, it was not liable to be adjusted for the purposes of Section 20(4) of the Act. Therefore, in view of the law laid down by this Court in the case of Rihanda Mal Sindhi Vs. District judge Jhansi, 2005 (1) ARC 110, the amount deposited by the petitioner defendant under Section 30 of the Act after issuance of a notice terminating the tenancy and demanding arrears of rent, cannot be considered to the deposited under Section 20(4) of the Act. Following the aforesaid decision, the Issue No.4 was decided against the petitioner-defendant by the impugned judgment dated 14.4.2011 passed by the Judge, Small Cause Court, Jhansi. As a consequence of the answer to the Issue No.4, the Issue No.5 was answered against the petitioner-defendant and the suit was decreed. The SCC Revision No.99 of 2011 filed by the petitioner-defendant to challenge the aforesaid judgment dated 14.4.2011, was dismissed by the Court of Additional District Judge, Court No.3, Jhansi by the judgment dated 1.2.2017. In view of the law laid down by Hon'ble Supreme Court in the Case of Mam Chand Pal Vs. Shanti Agarwal, 2002 (3) SCC 49, the revisional court held that the date of first hearing was 26.3.2010 on which date, the petitioner filed the written statement and on the said date, the entire amount of rent etc. was not deposited. It was further held that the amount deposited by the petitioner-defendant by tender 33C dated 8.4.2010 for Rs.800/-, cannot be considered for the purposes of Section 20(4) of the Act. Consequently, the revision was dismissed. Aggrieved with these two judgments, the petitioner-defendant filed this petition under Article 227 of the Constitution of India.
Submissions:-
3. Learned counsel for the petitioner submits that the phrase "first date of hearing" used in Section 20(4) of the U.P. Act No.13 of 1972 read with Order XV Rule 5 CPC has been interpreted by the Hon'ble Supreme Court in the case of Mam Chand Pal Vs. Shanti Agarwal, 2002 (3) SCC 49 (para 4) in which, it has been held that first date of hearing would be the date on which the prescribed authority applies its mind to the facts of the case on the date fixed for hearing and not earlier on the date fixed for filing of the written statement. He, therefore, submits that since the petitioner-defendant has deposited the entire amount before 8.4.2010 and therefore, the date fixed for filing the written statement i.e. 26.3.2010 would not be the first date of hearing rather the first date of hearing would be 12.4.2010. He submits that after several dates were fixed for argument by the trial court, the effort of compromise was made but abruptly the trial court allowed the case by the impugned judgment dated 14.4.2011. He, therefore, submits that the impugned judgment has been passed in breach of principles of natural justice, without giving effective opportunity of hearing to the petitioner-defendant.
4. Sri R.P. Tiwari, learned counsel for the respondent-landlord/plaintiff submits that the provisions of Section 20(4) of the U.P. Act No.13 of 1972 and Order XV Rule 5 CPC are quite unambiguous and if the petitioner-defendant wanted to take advantage of the provisions of Section 20(4), then he should have deposited the entire amount of rent and damages together with interest @ 9% per annum before the first date mentioned in the summon served on him. He submits that since amount was not deposited by the petitioner-defendant on or before 26.3.2010 and as such the benefit of the provisions of Section 20(4) of the U.P. Act No.13 of 1972 was not available to the petitioner-defendant. He further submits that full opportunity of hearing was afforded by the Judge Small Cause Court as well as by the revisional court to the petitioner-defendant which fact is evident from the impugned judgment itself and therefore, there is no substance in the second submission of the petitioner-defendant. He submits that this petition under Article 227 does not involve any question of law and the entire matter is concluded by findings of fact. Therefore, it may be dismissed with cost.
Discussion and Findings:
5. I have carefully considered the submissions of learned counsels for the parties.
6. It is undisputed that even after service of notice dated 16.8.2008 upon the petitioner defendant on 22.8.2008, he did not pay arrears of rent to the plaintiff but deposited certain amount under Section 30 of the Act, Rs.3,500/- , tender 25C dated 25.3.2009, Rs.7,600/-, tender 30C dated 31.8.2009, Rs.800/-, tender 31C dated 14.9.2009, Rs.600/-, tender 32C dated 4.2.2010 and Rs.800/-, tender 33C dated 8.4.2010.
7. In the case of Basant Kumar Chauhan Vs. 7th Additional District Judge, Bareilly, 1994 (23) ALR 414, this Court considered the provisions of Order XV Rule 5 CPC including Explanation 3 and held as under;
"10. A perusal of the provisions contained in Order XV Rule 5 of the Civil Procedure Code makes it clear that under the scheme of that order a deposit of rent on or before the date of first hearing might be made under Section 30 of the U.P. Act No. 13 of 1972. The explanation II to Order XV Rule 5(1) of the Civil Procedure Code amply clarifies that the expression 'entire amount admitted to be due' meant the entire gross amount whether as rent or compensation for use and occupation calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessee in writing signed by him and the amount if any, deposited in any court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
11. It is, therefore, obvious that the provisions contained in Order XV Rule 5, read with Explanation II clearly stipulate that any amount deposited in any court under Section 30 of the U.P. Act No. 13 of 1972 could be taken notice of by the court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit were concerned. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual. The expression 'monthly amount due' has been explained vide Explanation III to Order XV Rule 5 of the Civil Procedure Code and means the amount due every month whether as rent or compensation for use and occupation at the admitted rate of rem after making no other deduction except the tax, if any, paid to a local authority in respect of the building on lessor's account. Considering the explanation III to Order XV Rule 5 of the Civil Procedure Code it is clear that for finding out the 'monthly amount due' the deposits made in any court under Section 30 of the U.P. Act No. 13 of 1972 are not to be taken into account. However in explanation II there is a clear mention of the deposits, if any, made in any court under Section 30 of the U.P. Act No. 13 of 1972 which may be taken into notice and adjusted while considering the entire amount admitted by the tenant to be due which is required to be deposited at or before the first hearing of the suit. The omission appears to be deliberate and is indicative of the fact that for the purposes of the deposits towards the 'monthly amount due' as contemplated in the second part of Order XV Rule 5(1)of the Civil Procedure Code, any deposit in any court under Section 30 of the U.P. Act No. 13 of 1972 is not to be taken into account. Obviously, therefore, once in any suit by a lessor for the eviction of a lessee after the determination of his lease, the tenant defendant comes to know of the pendency of the suit and puts in appearance therein, a statutory obligation stands cast upon him to regularly deposit the monthly amount due as envisaged under explanation III to Order XV Rule 5 of the Civil Procedure Code in the suit regularly throughout its continuation within a week from the date of its accrual in order to save his defence from being struck off. Of course, the delay, if any, in making the deposits required to be made under the second part of Order XV Rule 1 of the Civil Procedure Code could be condoned, on the representation of the tenant provided he makes out a sufficient ground for the same.
12. It may further be noticed that Section 30 of U.P. Act No. 13 of 1972 is confined to deposit of rent concerning a building as defined in that Act. Under Order XV Rule 5 of the C.P.C. deposit is required to be made regularly within a week from the date when the monthly amount falls due. No such rider can obviously be read into a deposit under Section 30 of the U.P. Act No. 13 of 1972 as pointed out by this Court in its decision in the case of Shyam Kishore Agarwal v. VIIth Additional District Judge, Kanpur and others, 1984 AWC (Suppl.) 555. This also suggests that the deposit contemplated is a deposit in the court where the suit is pending.
13. Another aspect which also cannot be lost sight of is that under the provisions contained in Order XV Rule 5 of the Civil Procedure Code as applicable to the State of U.P. the monthly amount due as clarified under explanation III to the said rule has to be deposited throughout the continuation of the suit within a week from the date of its accrual. The suit referred to therein is a suit by a lessor for the eviction of a lessee after the determination of his lease and for recovery from him of rent or compensation for use and occupation. The proceedings under Section 30 of the U.P. Act No. 13 of 1972 cannot be deemed to be a 'suit' as envisaged under Section 26 of the Civil Procedure Code. The word 'suit' has nowhere been defined in the Civil Procedure Code. A proceeding in the nature of a suit is initiated by the presentation of a plaint in a court for the adjudication of the rights of the parties. In its decision in the case of Hansraj v. Dehradun M.E.T. Co. Ltd., AIR 1933 P.C. 63, the Privy Council had observed that the word 'suit' ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. In its decision in the case of Rameshwar Dayal v. Banda (dead) through his L.Rs. and another, 1983 (1) ARC 249 the Apex Court while noticing the difference between a 'decree', 'order' and 'judgment' as defined under the Civil Procedure Code had observed that the definition of decree, order and judgment given in the Code show that decree or order as the case may be can come into existence only if there is an adjudication on the relevant issues which conclusively determines the rights of the parties with regard to all or any matters in controversy in the suit.
14. A perusal of the provisions contained in Section 30 of the U.P. Act No. 13 of 1972 indicates that the proceedings contemplated therein which are of a summary nature are not at all in the nature of a suit and the question for adjudication of any right of the parties in such proceedings so as to bring in existence any decree, order or judgment as envisaged under the provisions of the Civil Procedure Code does not arise therein. Moreover, as observed by this Court in its decision in the case of Chuni Lal v. Ramesh Chandra, 1992 (20) ALR 1111, the mere fact that an application under Section 30 for permission to deposit the arrears of rent has been allowed by the Munsif cannot absolve the tenant from establishing before the court where the suit for eviction is filed that the landlord has refused to accept the rent lawfully tendered. It was further observed in that decision that it stands well settled that the court trying the suit for eviction cannot be precluded from enquiring about the validity of the deposits made under the proceedings contemplated under Section 30 of the U.P. Act No. 13 of 1972, Moreover in the present case what I find is that the learned Munsif while disposing of the application of the defendant-petitioner made under Section 30 of the U.P. Act No. 13 of 1972 had not gone into the merits of his claim at all and had permitted him to deposit the rent in those proceedings at his own risk.
15. In the aforesaid situation the petitioner could not be deemed to be entitled to any benefit out of the deposits claimed by him to have been made in the proceedings under Section 30 of the U.P. Act No. 13 of 1972 and the deposits made by him there could not relieve him of the liability which stood statutorily fastened on him under the provisions contained in Order XV Rule 5(1) of the Civil Procedure Code requiring him to deposit the monthly amount due as explained in explanation III of the said provision within a week from the date of its accrual.
16. The observations occurring in the decision of the learned Single Judge in the case of Gyanandra Lal (supra) on which strong reliance has been placed by the learned counsel for the petitioner, indicating that from the time of the filing of a suit by the lessor against the lessee the defendant-tenant is entitled to the benefit of the deposit made under Section 30(1) of the U.P. Act No. 13 of 1972 not only during the period prior to the institution of the suit for ejectment but also during the subsequent period appear to be obiter. The decisions to the above effect cannot under the law, be deemed to be a binding precedent. It falls in the category of a decision passed sub-silentio as observed in the decision of the Apex Court in the case of State of U.P. v. M/s. Synthetic and Chemical Limited JJ 1991 (3) SC 268. It was observed by the Hon'ble Supreme Court therein that a decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. Noticing the decision in the case of Lancaster Motor Company (London) Ltd., v. Bremith Ltd. , it was observed that the court did not feel bound by earlier decisions as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. The Apex Court clearly observed that any declaration or conclusion preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.
17. From a perusal of the decision in the case of Gyanandra Lal (supra), it is apparent that no reason whatsoever has been given for the conclusion contained therein referred to hereinbefore. Moreover the crucial words occurring in Order XV rule 5(1) of the Civil Procedure Code and the implications rising under explanation II and explanation Ill to Order XV Rule 5(1) of the Civil Procedure Code as well as the implications rising under the use of the term 'sun' in the provision under consideration and further the nature of the proceedings envisaged under section 30 of the U.P. Act No. 13 of 1972 were not at all taken notice of while making the observations on which the learned counsel for the petitioner has placed strong reliance The clear cut statutory provision contained in Order XV Rule 5(1) of the Civil Procedure Code leads to an inescapable and irresistible conclusion that the defendant-tenant petitioner could not be deemed to have been relieved of his liability to deposit the monthly amount due in the court where the suit was proceeding even after having come to know of its pendency and comply with the requirement of the second part of Order XV Rule 5(1) of the Civil Procedure Code in order to save his defence from being struck off. The revisional court has noticed that inspite of full opportunity, the defendant petitioner did not take any steps to get the amount deposited in the court where the suit was pending and insisted that he was not required to make any deposit whatsoever. It has further been noticed that the defendant petitioner did not even ask for the permission to make the necessary deposits even after the application for striking off his defence had been filed. The courts below were bound to follow the statutory provisions and they did not commit any error in following the decision of this Court in the case of S. Abel (supra) which continues to have its binding force and is in conformity with the provisions contained in Order XV Rule 5 of the Civil Procedure Code and the legislative intent behind the same."
(emphasis supplied by me)
8. The aforesaid judgment in the case of Basant Kumar Chauhan (supra) rendered by learned Single Judge, was affirmed by a Division Bench of this Court in the case of Haider Abbas Vs. Additional District Judge, Court No.3, Allahabad and others, 2006 (62) ALR 552 (Allahabad), which held as under;
"35. From a perusal of the aforesaid decision it is also not clear whether the matter related to the first part or the second part of the Order XV, Rule 5 C.P.C. As seen above, there is a substantial difference between the deposits made in these two parts because under the first part the amount deposited under section 30 can be deducted whereas under the second part there is no provision for deduction of the said amount.
36. Basant Kumar Chauhan (supra) and Ram Kumar Singh, (supra), in our considered opinion, have correctly appreciated the provisions of Order XV, Rule 5 C.P.C. and we have not been able to persuade ourselves to uphold the view taken to the contrary in Habiburrahman (supra), Ratan Bhushan Shukla (supra) and Dr. Ram Prakash Mishra (supra). These decisions have not considered the specific requirement contained in the second part of the Order XV, Rule 5(1) C.P.C. relating to deposit of the monthly amount due throughout continuation of the suit. They, therefore, with utmost respect to the learned Judges deciding the cases, do not lay down the correct law.
37. We, therefore, upon an analysis of the provisions of Rule 5(1) of Order XV, C.P.C., hold that while depositing the amount at or before the first hearing of the suit, the tenant can deduct the amount deposited under section 30 of the Act but the deposits of the monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under section 30 of the Act cannot be deducted." (Emphasis supplied by me)
9. In the case of Atmaram Vs. Shakuntala Rani, 2005 (61) ALR 450, Hon'ble Supreme Court emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with the condition failing which, he can not take advantage of the benefit conferred by such a provision. It has been further emphasized that the rent must be deposited in the court where it is required to be deposited under the Rent Control Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently, the tenant must be held to be in default.
10. In the case of Kanhai Vs. Prafulla Kumar, 2014 (2) ALL LJ 524, this Court explained the provisions of Section 20 of the U.P. Act No.13 of 1972 and the provisions of Order XV Rule 5 CPC and held as under;
"6. Section 20 of the Act deals with bar of suit for eviction of tenant except for specified grounds. Sub-section (2) of Section 20 provides that a suit for eviction of a tenant from a building after the determination of his tenancy may be instituted on the ground that the tenant is in arrears of rent for not less than four months and has failed to pay to the landlord within one month from the date of service upon him of a notice of demand. Section 20(4) provides that in the event of filing of such a suit if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposit in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon @ 9% per annum and the cost of the suit, after deducting there from any amount already deposited by the tenant under Section 30(1) of the Act, the Court may in lieu of passing a decree for eviction instead pass an order relieving the tenant against the liability for eviction on the ground of arrears of rent.
7. Section 20(3) of the Act was omitted from the Statute book by U.P. Civil Laws Amendment, 1972 which came into force from 20th September, 1972 and instead a similar provision was incorporated in the Order XV CPC in order to bring within its scope of all the buildings and not merely those covered by the Rent Act.
8. While analyzing the provision of Order XV Rule 5 CPC Hon'ble Apex Court in the case of Bimal Chand Jain v. Sri Gopal Agarwal, AIR 1981 SC 1657 has observed as under:
"It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, the Court may subject to the provisions of sub-rule (2) strike off his defence."
9. A perusal of provision of Order XV Rule 5 CPC goes to show that it is divided in two parts. The first part deals with the deposit of entire amount admitted by the defendant to be due together with interest on or before the first hearing of the suit. Whereas the second part deals with the deposit of the monthly amount due which deposit is to be made throughout the continuation of the suit. Explanation-II to Order XV Rule 5(1) CPC provides that entire amount admitted by the defendant to be due means the gross amount, whether as rent or compensation for use and occupation after deducting taxes if any paid in respect of the building to the landlord/lessor's account and the amount if any deposited under Section 30 of the Act. Whereas the expression monthly amount due has been defined in Explanation-III to mean the amount due every month whether as rent or compensation for use and occupation at the admitted rate of rent. This only permits to make deduction of the amount deposited towards the taxes to the local authority in respect of the building."
11. In the case of Kammo Vs. Chandrasekhar Gupta, 2014 (1) ALL LJ 691 held as under;
"22. Explanation to Order XV, Rule 5 mentions that first hearing means the date fixed for filing written statement and the entire amount admitted means the entire amount of rent or compensation for use of accommodation calculated at the admitted rent adjusting deposit made under section 30 of the U.P. Act No. 13 of 1972. It is admitted position that no monthly amount was deposited till 15.7.2006.
23. Submission of learned Counsel that defendant had deposited the rent under section 30 of the U.P. Act No. 13 of 1972 and it can be adjusted towards arrears claimed by the plaintiff has substance. Similarly, any other amount paid can also be adjusted as provided in Explanation 2. However, amount other than the admitted rent till the filing of Suit and monthly amount due (as claimed) has to be deposited and failure to deposit entails the consequence provided as above.
24. Since no amount was deposited till 15.7.2006 in the Suit itself, Trial Court was fully justified in striking off the defence. Since neither written statement was filed nor any amount including monthly amount was deposited, Court below had exercised its discretion under Order XV, Rule 5 CPC which cannot be said to be arbitrary or unauthorized by law."
12. In the case of Bimal Chand Jain Vs. Gopal Agarwal, AIR 1981 SC 1657, Hon'ble Supreme Court analysed the provisions of Order XV Rule 5 CPC and held that on a comprehensive understanding of Order XV Rule 5 CPC, the true construction is that sub-Rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon @ 9% per annum and further, whether or not he admits any amount with due, to deposit regularly throughout the continuation of the suit within a week from the date of its accrual. In the event of any default in making any deposit, the Court, may subject to the provisions of sub-rule (2), strike off his defence.
13. The words "first hearing" used in Section 20(4) of the Act, has been defined in Explanation (a) appended sub-Section 4 of Section 20 as under;
"a- the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant."
14. The expression "first hearing" has been defined in Explanation 1 of Order XV Rule 5 CPC as under;
"The expression "first hearing" means the date for filing the written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned."
15. Thus, the Explanation 1 to Order XV Rule 5 CPC defines the expression "first hearing" means the date for filing written statement or for hearing mentions in the summons or where more than one, the last of dates mentioned. However, the expression "first hearing" has been differently defined in clause "a" of the Explanation to sub-Section (4) of Section 20 of the Act which provides that the expression "first hearing" means the first date for any steps or proceedings mentioned in the summons served on the defendant. In view of the provisions of Section 38, the Act No.13 of 1972 has overriding effect over the provisions of Transfer of Property Act and the Civil Procedure Code. It provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith in the Transfer of Property Act, 1982 or in the Code of Civil Procedure, 1908. Thus, in the present set of facts, the expression "first hearing" as defined in clause (a) of the Explanation of sub-Section (4) of Section 20 of the Act shall be applicable. In the case of Ashok Kumar and others Vs. Rishi Ram and others, 2002 5 SCC 641 (para 8), Hon'ble Supreme Court explained the provisions of Section 20 (4) of the Act read with clause (a) of the Explanation and held as under;
"8. Rule 1 of Order V speaks of issue of summons. When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 5 of Order V says that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit which shall be noted in the summons. However, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. It may be apt to notice here that Sub-section (3) of Section 20 of the Act was deleted in U.P. Civil Laws Amendment Act, 1972 with effect from September 20, 1972 and Rule 5 was inserted in Order XV of the Civil Procedure Code which deals with disposal of the suit at the first hearing. Explanation 1 to Rule 5 of Order XV defines the expression "first hearing" to mean the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. But the said expression, as noticed above, is defined in Clause (1) of Explanation to Sub-section (4) of Section 20. Section 38 of the U.P. Act says that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act or in Code of Civil Procedure, therefore, the definition contained in Clause (a) of Explanation to Sub-section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order XV of the Code of Civil Procedure as applicable to the State of U.P. It is too evident to miss that in contra-distinction to the "filing of written statement" mentioned in the definition of the said expression contained in Rule 5 of Order XV, the language employed in Clause (a) of the Explanation to Section 20(4) of the U.P. Act, refers to 'the first date for any step or proceeding mentioned in the summons served on the defendant'. In our view those words mean the first date when the court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement. The controversy is no longer res integra. The aforementioned provisions fell for consideration of a three-Judge Bench of this Court in Siraj Ahmad Siddiqui v. Prem Nath Kapoor. The Bench laid down as follows :
"The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression "first hearing" for the purposes of Section 20(4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a "hearing" that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary."
16. In the case of Om Prakash and another Vs. Mishri Lal (dead), 2017 5 SCC 451 (para 31), Hon'ble Supreme Court held that the proviso of Section 20(4) of the Act predicates that the benefit would not be available to a tenant who or any members of his family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
17. In the case of Sumer Pal Singh Vs. Chitranjan Singh, 2016 (1) SCC 626 (para 15), Hon'ble Supreme Court held that it cannot be said that object of sub-section (4) of Section 20 is to protect those tenants who have built, or acquired in vacant state of house which can be used for residential as well as commercial purposes. A building which can be said to be excluded from clutches of the proviso to sub-section (4), if built, or acquired in vacant state within the limits of municipal area in which the house from which eviction is sought by the landlord.
18. In the case of Sidhhartha Viyas Vs. Ravi Nath Mishra, 2015 (2) SCC 701 (para 10 and 13), Hon'ble Supreme Court held that the object of Rent Law is to balance the competing claims of the landlord on the one hand to recover possession of building let out to the tenant and of the tenant to be protected against arbitrary increase of rent or arbitrary eviction, when there is acute shortage of accommodation. Though, it is for the legislature to resolve competing claims in terms of statutory provisions, while interpreting the provisions, the object of the Act has to be kept in view by the Court. Unless otherwise proved, a tenant who has already acquired alternative accommodation is not intended to be protected by the Rent Act. The grammar cannot control the interpretation of the provision which has to be read in the context.
19. In the case of Sidhhartha Viyas (Supra), Hon'ble Supreme Court approved a full Bench judgment of this Court in the case of Mangi Lal Vs. Additional District Judge, 1980 ARC 55 (para 43, 44, 45 and 46) as under;
"From the language of sub-section (4) quoted above, it is clear that under the proviso it is provided that nothing in the sub-section could apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, The learned counsel for the tenant/respondent did not dispute that the respondent has acquired Property Nos.621, 42, 42 and 72 in the municipal limits of Mowana (District Meerut). What the High Court has held is that the proviso deprives the tenant of the protection under sub-section (4) only if he has acquired residential building."
20. In the case of Sudershan Devi and another Vs. Sushila Devi and another, (1999) 8 SCC 31 (para 26 and 27) held as under;
"26. Advaita Anand then referred to the ruling of the Allahabad High Court in Sri Nath Aggarwal v. Srinath and pointed out that that ruling was only partly approved in Siraj Ahmad Siddiqui's case to the extent of waiver of summons. But after stating so, this Court in Advaita Anand expressly overruled Srinath Aggarwal to the extent that that ruling held that the date for filing of the written statement was a step in the proceeding for purposes of the Explanation.
27. Thus both in Siraj Ahmad Siddiqui and Advaita Anand this Court construed Section 20(4) and the Explanation to say that the date of first hearing of the suit would not be the date fixed for filing the written statement but would be the date proposed for the hearing i.e. the date proposed for applying the Court's mind to determine the points in controversy and to frame issues, if necessary. These decisions are binding on us. Point 1 is decided accordingly."
Scope of Section 20(4) with respect to deposit under Section 30(1) of the Act No.13 of 1972-
21. Sub-section (4) of the Section 20 of the Act provides for adjustment from the entire amount of rent and damages for use and occupation of the building by the tenant together with interest thereon @ 9% per annum at the first date of hearing after deducting there from any amount already deposited by him under sub-section (1) of Section 30. Section 30(1) of the Act provides for deposit of rent in Court if any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the tenant may deposit such amount in the prescribed manner and continue to deposit rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the mean time signifies by notice in writing to the tenant his willingness to accept it.
22. Section 20 (2) provides for grounds for eviction of a tenant from a building after determination of his tenancy by notice. The first ground is provided in clause (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. Thus, a suit may be instituted for eviction of a tenant after determination of his tenancy on the ground 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 by a notice of demand. But if, the tenant in a suit for eviction on the ground mentioned in clause (a) of sub-section (2), unconditionally pays or tenders to the landlord or deposits in court at the first hearing of the suit the entire amount of rent and damages for use and occupation of the building due from him, together with interest thereon @ 9% per annum and the landlord's costs of the suit in respect thereof, after deducting there from any amount already deposited by him under Section 30(1), the court may in lieu of passing of decree for eviction on that ground, pass an order releaving the tenant against his liability for eviction on that ground. Thus, the protection from eviction is available to a tenant only if he unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages as provided in sub-section 4 read with clause (a) of sub-section (2).
23. In the case of Gokaran Singh Vs. Ist Additional District and Sessions Judge, Hardoi and others connected Writ Petitions, 2000 (1) ARC 653 (para 29 and 32), a full Bench of this Court considered the scope of Section 30 and held as under;
"29. From a reading of the aforesaid provision, it is clear that refusal to accept the rent from a tenant by the landlord, his tenant is entitled to deposit the amount of rent in the Court. Under the aforesaid provision the tenant is entitled to continue to deposit the said rent after the same is refused by the landlord till landlord expresses his willingness to accept the same. In Indrasani's case, 1968 AWR 167 (FB), it has been ruled by a Full Bench of this Court that if rent tendered by the tenant covers specified period and the same is refused by the landlord, the amount of rent so tendered, shall be deemed to have been paid to the landlord. Tenant, thereafter, is at liberty to deposit the same in the Court. Even if said rent is not deposited in the Court, said tenant cannot be held to be a defaulter in respect of the said period. It has also been held that on receipt of notice if the landlord expresses willingness to accept the rent, tenant need not tender or pay the arrears of rent, which was already refused by the landlord. In the said case, it was ruled as under--
".........There can be no legal obligation on a tenant to tender the amount previously tendered but refused by the landlord, alongwith the tender for the subsequently accrued rent. Neither the Transfer of Property Act, nor the Contract Act, nor the U.P. (Temporary) Control of Rent and Eviction Act provides for any such tender.
".........We are of the opinion that where non-payment of rent is on account of the intransigence of the landlord to accept or receive the rent tendered to him he cannot call his own improper conduct in aid as a means to evict the tenant. We, therefore, hold that where rent due has been lawfully tendered to the landlord and is improperly refused by him, the tenant cannot be held to be in arrears of rent."
"It will this appear that a tenant who has made a valid tender of the rent which fell due, in law cannot be treated as a tenant in arrears of rent nor even can the rent be said to be in arrears although the amount actually still remains payable to the landlord whether in the hands of the tenant or in deposit in Court.
".........On a consideration of the whole matter, we are of the opinion that the question referred to the Full Bench must be answered in tenant's favour and it must be held that where a tenant remits rent by money order and the amount remitted covers rent for a particular month and the landlord refuses to accept the same the tenant cannot be said to be in arrears in respect of that month within the meaning of Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act.
32. In Indrasani's case (supra) it has been held that if the amount of rent at the correct rate is tendered by the tenant and the same is refused by the landlord, which covers to a particular period, tenant can not be held to be defaulter in respect thereof. After refusal of the rent by the landlord, tenant is legally entitled to deposit the same in the court under Section 30, but if thereafter, landlord serves notice of demand again at a higher rate, tenant need not tender the amount, which has been deposited under Section 30 again but he will be under obligation to tender the amount of rent due at the correct or admitted rate of rent. Without tendering the said amount, the tenant will have no right to deposit the same under Section 30 of the Act." (Emphasis supplied by me)
24. Similar view has been expressed by a Bench of this Court in the case of Madhu Mittal (Smt.) Vs. Additional District Judge, Ghaziabad and others, 2004 (2) ARC 326 wherein following the law laid down by the full Bench, the court held as under;
"4. The tenant started depositing rent under Section 30 of U.P. Act N. 13 of 1972 with effect from 01.07.1993 and continued to deposit the rent under Section 30 till 30.06.1995. Defendant admitted that meanwhile he received two registered notices from the landlord dated 27/30 January 1994 demanding the rent. In spite of the said notices, defendant continued to deposit the rent under Section 30 of the Act. The defendant did not deposit any rent in the suit. The suit was ultimately decreed on 30.01.1996 by J.S.C.C. Tenant-respondent no. 2 filed a revision against the judgment and decree passed by the trial court under Section 25 P.S.C.C. Act being S.C.C. Revision No. 60 of 1996. Vth Addl. District Judge, Ghaziabad through judgment and decree dated 19.03.1997, allowed the revision, set aside the judgment and decree passed by the trial court and dismissed the suit. The Revisional Court placing reliance upon, 1986 All. C.J. 782 (Gyanendra Lal and another Vs. Vishnu Narain Mishra) held that even after filing of the suit for ejectment tenant had two options, one deposit of rent under Section 30 of the Act and second; deposit of rent in court where suit for ejectment was filed. The writ petition is directed against the aforesaid judgment and order of revisional court.
5. It has been held in Full Bench Authority of this Court reported in 2000 (1) ARC 653, that deposit of rent under Section 30 of Act, after receiving notice of demand, is not permissible and any such deposit, if made, will not be of any benefit of the tenant. The tenant will have to be treated defaulter in payment of rent for the period subsequent to the receipt of notice given by landlord intimating his intention to receive the rent directly.
6. Accordingly, I hold deposit of rent made by the tenant after receipt of notice dated 27/30 January 1994 was not permissible and the said deposit cannot be said to be payment to the landlord. The tenant was defaulter when the suit was filed and the trial court rightly decreed the suit. In view of the above, I hold that the judgment passed by the revisional court is patently erroneous in law."
(Emphasis supplied by me)
25. Thus, the deposit of rent under Section 30 of the Act after receiving of notice of demand, is not permissible and any such deposit, if made will not be of any benefit to the tenant. The tenant will have to be treated as defaulter in payment of rent for the period subsequent to the receipt of notice given by the landlord intimating his intention to receive the rent directly.
26. A careful reading of Section 20(4) of the Act/ Rule 5 of Order XV shows that in any suit by a lessor for the eviction of a lessee after the determination of the lease and for recovery of rent or compensation for use and occupation, the defendant is required to deposit at or before the first hearing of suit, the entire amount admitted by him to be due together with interest thereon at the rate of 9% per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly, deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike off his defence. The expression "entire amount admitted to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, deposited in any Court under Section 30 of the U.P. Act No.13 of 1972. As per Explanation 3, the expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. The admitted rate of rent is Rs.200/- per month which was payable to the plaintiff-respondent. The petitioner-defendant was liable to deposit the entire amount at the first hearing and was also liable to continue to deposit the monthly rent in time from month to month. The aforesaid provision is a beneficial provision and if the petitioner defendant wanted to take its advantage then he must have strictly complied with the requirement of the aforesaid provision.
27. A clear cut statutory provisions of Section 20(4) of the Act leads to an inescapable and irresistible conclusion that the petitioner-defendant/ tenant was under statutory obligation to deposit the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon @ 9% per annum and landlord's costs of the suit in respect thereof, at first date of hearing of the suit, after deducting there from any amount already deposited by him under Section 30(1) of the Act, if he desired to take benefit of the beneficial provisions of Section 20(4) of the Act. The tenant can deduct the amount deposited under Section 30 of the Act but the deposits of the monthly amount after the first hearing and throughout the continuation of the suit must be made in the court where the suit has been filed for eviction and recovery of rent or compensation for use and occupation. Amount, if any, deposited by petitioner-defendant/tenant under Section 30 of the after the first hearing of the suit cannot be deducted for the purposes of benefit of the provisions of Section 20(4) of the Act. If the defendant wishes to take advantage of the beneficial provisions of Section 20(4) of the Act, he must strictly comply with the requirements and if any condition precedent is to be fulfilled before the benefit can be claimed, he must comply with that condition, failing which, he cannot take advantage of the benefit conferred by the provisions of Section 20(4) of the Act.
28. If the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with the condition failing which, he can not take advantage of the benefit conferred by such a provision. It has been further emphasized that the rent must be deposited in the court where it is required to be deposited under the Rent Control Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently, the tenant must be held to be in default.
29. In the present case, I find that a notice dated 16.8.2008 issued by the respondent-plaintiff/landlord to the petitioner-defendant/tenant terminating the tenancy and demanding arrears of rent was served on 22.8.2008. Since notice was not complied with by the petitioner-defendant, hence he instituted the Suit No.59 of 2008 on 17.10.2008. Allegedly, after about 8-9 months of the service of notice, the petitioner-defendant sent rent through money orders being paper no.42C and 43C dated 12.5.2009 which he could not prove. Thereafter, he moved application under Section 30 of the Act on 27.8.2009 i.e. after about ten months of the institution of the SCC case. The aforesaid application under Section 30 of the Act being Misc. Case No.58 of 2009 was not allowed by the Civil Judge (J.D.). There was no valid deposit under Section 30 of the Act as per findings of fact recorded in the impugned judgment passed by the revisional court in SCC Revision No.99 of 2011. Thus, under the facts and circumstances of the case, there was no valid deposit under Section 30 of the Act.
30. Both the courts below have recorded findings of fact that the date of first hearing was 26.3.2010 by which date, the petitioner-defendant had not deposited entire amount in the court. It is not disputed before this Court that the petitioner-defendant has not deposited any amount demanded by notice dated 16.8.2008 even after institution of the SCC case on 17.10.2008. For the first time, he moved application under Section 30 of the Act dated 27.8.2009 being Misc. Case No.58 of 2009, after about one year of the service of notice demanding arrears of rent and terminating the tenancy. Thus, the petitioner-defendant was continuously in default even after service of notice.
31. Under the facts and circumstances, I do not find any error in the impugned judgments as discussed above. Consequently, the petition fails and is hereby dismissed.
Order Date :- 30.8.2017 V Kumar