Allahabad High Court
Smt. Rani Devi & 6 Others vs Addl. Distt. & Session Judge,Ct.No.13, ... on 18 April, 2018
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- RENT CONTROL No. - 77 of 2017 Petitioner :- Smt. Rani Devi & 6 Others Respondent :- Addl. Distt. & Session Judge,Ct.No.13, Lucknow & 2 Others Counsel for Petitioner :- Mohammad Aslam Khan Counsel for Respondent :- Ram Karan Agrawal Hon'ble Rakesh Srivastava,J.
1. This petition under Article 227 of the Constitution has been filed challenging the judgment and order dated 19.02.2008 passed by the Judge Small Causes Court in SCC Suit No.121 of 2000, Siya Ram Vs. Smt. Rani Devi & Ors, and the judgment and order dated 03.10.2016 passed by the Additional District Judge, Court No.13 Lucknow in SCC Revision No.1300034 of 2008 (Smt. Rani Devi & Ors. Vs. Siya Ram).
2. Admittedly, Siya Ram, the plaintiff in the original suit and the respondent no. 3 herein, the owner of shop no.1110 situated at J.K. Gola Bazaar, Sadar, Lucknow had originally let out the said shop to Sri Ram Kumar Vaish on a monthly rent of Rs.18/- per month. After the death of Ram Kumar, the defendants in the original suit and the petitioners herein, being his heirs and legal representatives, became joint tenants.
3. After due notice, demanding payment of arrears as well as to quit the premises, the respondent no.3 instituted SCC Suit No.121 of 2000 against the petitioners in the Court of Judge Small Causes, Lucknow on 01.07.2000. The respondent no.3 restricted his claim for recovery of arrears of rent from 01.05.1997 to 03.06.2000 to Rs.667.80, for damages for use and occupation for the period extending from 04.06.2000 to 30.06.2000 to Rs.16.80 and for ejectment of the petitioners from the suit premises. It was also alleged that the petitioners had sublet the premises without the consent of the respondent no.3. In his suit, the respondent no.3 relinquished his claim for rent for the period 01.01.1977 to 30.04.1997 as the relief was time barred.
4. On 17.01.2001, the petitioner nos.2 & 3, filed their joint written statement wherein, they controverted the material averments made by the respondent no.3. They inter alia pleaded that when the respondent no.3 refused to accept the rent, Ram Kumar, the original tenant deposited the rent for the period 01.01.1977 to 31.3.1992 under section 30(1) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short 'Act') in Misc. Case No.11 of 1981 and after his death, his widow Smt Rani Devi, the petitioner no.1, deposited rent up to 30.09.2000 in the said case, before the filing of the SCC Suit. It was further pleaded that on legal advice, Smt. Rani Devi had unconditionally deposited a sum of Rs.3151/- in the Court being the rent and damages up to 30.09.2000, together with interest, cost etc. as required by section 20(4) of the Act and as such the petitioners be relieved of liability for eviction on the ground of default. The petitioner nos.4 & 5 filed their separate written statements reiterating the averments made by the petitioner nos.2 & 3 in their written statement.
5. The respondent no.3 filed his replication in which it was inter alia pleaded that the rent deposited under Section 30(1) of the Act was not a valid deposit as process fee and the notice in Form F had not been filed with subsequent deposits as required under the Rules and as the entire amount of rent was not deposited by the petitioners as required under Section 20(4) of the Act, they could not be relieved from their liability for eviction.
6. The trial Court framed the following issues:-
1- D;k nkok i{kdkjksa ds vla;kstu ls nwf"kr gS\ 2- D;k izfroknhx.k us fookfnr nqdku dks f'kdeh fdjk;s ij ns j[[kk gS\ 3- D;k izfroknhx.k ;w0ih0 ,DV uEcj 13 o"kZ 1972 dh /kkjk 2012 ds vFkksZa esa fMQWkYVj fdjk;snkj gS\ 4- D;k uksfVl fnukad 26-04-2000 ,d oS/k ,oa dkuwuh uksfVl gS\ 5- D;k oknh fdlh vuqrks"k dks ikus dk vf/kdkjh gS\
7. The trial Court decreed the suit of the respondent no.3 by judgment dated 13.09.2006. The trial Court held that the suit was not bad for non joinder of necessary parties; the shop was not sublet by the petitioners as alleged by the respondent no.3; service of notice was found sufficient; the petitioners were found to be defaulters under Section 20(2) of the Act. On these findings the suit was decreed.
8. The petitioners preferred a Civil Revision No.35 of 2006 challenging the judgment and decree of the trial Court before the District Judge, Lucknow. It appears that the only contention urged by the petitioners before the Revisional Court was with regard to the effect of deposit made by them before the trial Court under Section 20(4) of the Act. The Revisional Court by its judgment dated 27.04.2007 remanded the case to the trial Court with the direction to frame issue regarding the effect of the deposit made by the petitioners under Section 20(4) of the Act on the first date of hearing. Relevant portion of the judgment dated 27.04.2007 is being reproduced below:-
"Therefore, in case defendants/tenants have deposited entire amount of rent and damages for use and occupation of the building due from him together with interest therein at the rate of 9% per annum and landlord's cost in respect thereof then in lieu of passing a decree for eviction on that ground the court will pass order relieving the tenant against his liability for eviction. It is evident from perusal of para-17 of W.S. wherein defendants have alleged that they have unconditionally tendered entire rent on first hearing on refusal of cash payment receiving by the plaintiff and tender for depositing the amount was passed by the court and the amount is duly deposited in the bank including 9% interest counsel's fee and all other Misc. expenses total Rs. 3151/- which covers rent upto 30.9.2000. From perusal of impugned judgment it is evident that the learned court below has failed to frame and determine issue on this point for decision. Court below has not recorded any finding on this issue nor decided the same otherwise without framing issue or point."
and then "From perusal of paper no. C-17/21 photocopy of tender receipt issued by Bank dated 05.09.2000, it is evident that the amount of Rs.3151/- has already been deposited in the Bank. Therefore, learned court below has a considered the material evidence and the fact regarding deposit of rent on first date of hearing from order sheet of SCC suit it is evident that this SCC suit was instituted on 1.7.2000 fixing date 5.9.2000 for F.E. This suit was later on transferred to 11 Addl. J. SCC Lucknow and on 5.9.2000 entire rent including damages/rent cost of notice, his expenses and 9% interest thereon had been deposited as stated by the defendants. Therefore, learned court below has committed material irregularity in passing decree for ejectment of the revisionists/ defendants - tenants. Judgment and decree of the court below deserves to be set aside for proceeding according to law and making afresh decision in the matter."
9. After remand the trial Court reframed the issues. Issue nos.2, 3 & 4 were retained and an additional issue as to whether the petitioners were entitled to the benefit of Section 20(4) of the Act was framed.
10. The trial Court, after considering the evidence on record, again decreed the suit of the respondent no.3 by judgment dated 19.02.2008. The plea of subletting was not accepted by the trial Court. The trial Court held that the deposits made subsequent to the deposit made on 26.02.1981 under Section 30(1) of the Act were not valid deposits, as along with the subsequent deposits, process fee and notice in Form F was not filed as prescribed under Rule 21(5) of the Rules and as such the said amount could not be adjusted against the amount to be deposited under Section 20(4) of the Act. The trial Court held that since the petitioners had not deposited the entire amount of rent on the first date of hearing, they were not entitled to the benefit of Section 20(4) of the Act. The finding recorded by the trial Court was affirmed by the Revisional Court by judgment dated 03.10.2016.
11. Heard Sri Mohammad Arif Khan, Senior Advocate assisted by Sri Mohammad Aslam Khan, learned counsel for the petitioners and Sri Ram Karan Agarwal, learned counsel for the respondent no.3.
12. The only question involved and canvassed before this Court is as to whether the defendants had deposited the entire amount of rent and damages due on them along with interest and cost in terms of Section 20(4) of the Act.
13. To determine the controversy reference may be made to some of the provisions of the Act. Sub-section (2) of Section 20 of the Act deals with the grounds upon the proof of which a tenant can be evicted from the leased premises. Sub-section (4) of Section 20 provides that if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the amount mentioned therein, the Court may relieve the tenant from the liability of eviction. Relevant portion of Section 20(1), 20(2)(a) and Section 20(4) provide:
"20. Bar of suit for eviction of tenant except on specified grounds.-
(1) Save as provided in Sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner."
proviso (omitted as unnecessary) (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely :-
(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:
proviso (omitted as unnecessary)
(b) to (g) (omitted as unnecessary) (3) (omitted as unnecessary) (4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:
proviso (omitted as unnecessary) (5) and (6) (omitted as unnecessary)"
Section 30 of the Act provides for deposit of rent in Court in certain circumstances. Section 30(1), 30(4) and 30(6) provide:
"30. Deposit of rent in Court in certain circumstances:-(1) 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 former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.
(2) & (3) (omitted as unnecessary) (4) On any deposit being made under sub-section (1), the Court shall cause notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the Court in that behalf."
(5) (omitted as unnecessary) (6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2)."
Rule 21 of the Rules framed under the Act lays down the manner in which the rent has to be deposited in Court under Section 30 of the Act. Rule 21 provides:
"21. Deposit of rent [Section 30].-(1) Any person desirous of depositing rent under Section 30 shall apply in form E. The application shall be accompanied by as many copies thereof as there are opposite-parties, and also the process fee and notices in Form F. (2) The deposit shall be made under the Head "P-Deposits and Advances-II-Deposits not bearing interest-C-Other Deposit Accounts-(b) Departmental and Judicial deposits-Civil Deposits-Civil Court's Deposits."
(3) On such deposit being made, the Court shall cause notice of the deposit to be served on the opposite-party along with a copy of the application.
(4) Where a notice of the deposit is returned unserved, the Court shall fix a date on or before which the applicant shall deposit fresh process fee and notice in Form F. If within the time so allowed or within such extended time, as the Court may grant, the applicant fails to take steps as above, the application shall be rejected and the amount deposited shall be refunded to the applicant.
(5) In the case of continuance of deposit of rent for any subsequent period, fresh application shall not be necessary. But process fee and the notice in Form F shall accompany every deposit."
(emphasis supplied)
14. On a conjoint reading of the provisions mentioned above, it is apparent that under Section 20(2) of the Act, the landlord gets a cause of action for evicting the tenant when 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. If, however, the tenant pays the entire arrears of rent due at the first date of hearing of the suit the court may relieve the tenant against eviction even though he had not complied with Section 20(2). The tenant can take advantage of the benefit conferred by Section 20(4) only when he pays the entire amount of rent due as required under Section 20(4) after deducting any amount already deposited by the tenant under Section 30(1) of the Act.
15. It is no more res integra that in order to claim benefit under Section 20(4) of the Act, a tenant is obliged to deposit the entire amount of rent due including rent which had become time barred. In Khadi Gram Udyog Trust v. Ram Chandraji Virajman Mandir, (1978) 1 SCC 44 the Apex Court observed as under:-
"4. ...The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the scheme of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of Section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under Section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of Section 20(4). As he has not deposited the entire amount due the protection is no more available. We agree with the view taken by the trial court and the High Court of Allahabad that the words "entire amount of rent due" would include rent which has become time-barred"
(emphasis supplied)
16. The principle laid down in the case of Khadi Gram Udyog (supra) has been reiterated by the Apex Court in the case of Subhash Chand Jain v. 1st Additional District and Sessions Judge, Saharanpur & Ors, (1989) 2 SCC 110 and a large number of decision of this Court.
17. In the instant case, the respondent no.3 had claimed the rent for the period 01.01.1977 to 30.06.2000. Admittedly, the petitioners deposited a sum of Rs.3151/- under Section 20(4) of the Act. Out of the said amount, the petitioners deposited a sum of Rs.738/- towards the rent for the period 01.05.1997 to 30.09.2000 and a sum of Rs.1098/- was deposited towards rent for the period 01.04.1992 to 30.04.1997. The balance amount was deposited towards interest and cost of the suit. As per the settled legal position, in order to claim the benefit of Section 20(4), the petitioners were obliged to deposit the entire amount of rent w.e.f. 01.01.1977 up to 30.06.2000 which admittedly was not done.
18. Relying upon the case of Ram Das v. Vth Additional District Judge, Azamgarh, 1985 (2) ARC 188 the learned counsel for the petitioners has submitted that even if the amount deposited by the petitioners under Section 30 of the Act is invalid, as held by the Courts below, it was liable to be taken into consideration while computing the rent due under Section 20(4) of the Act. The submission made by the counsel for the petitioners is liable to be rejected at the outset. The case of Ram Das (supra) was based upon the case of Ram Gopal & Ors. v. Hari Shankar, 1985 (1) ARC 306 (DB). In Smt. Mridula Dayal v. VIth Addl. District Judge, Allahabad & Ors. 1986 (2) ARC 132 a Division Bench of this Court opined that the case of Ram Gopal (supra) does not support the proposition that for claiming benefit under Section 20(4) of the Act, the tenant is entitled to claim adjustment even in respect of illegal deposits made by him under Section 30(4) of the Act. The Division Bench explained the difference between a valid deposit and an invalid deposit and held that the tenant cannot derive any benefit out of an invalid deposit by observing as under:-
"If the deposit has been made in circumstances covered by sub-section (1) of Section 30 and in the prescribed manner, it would be a valid deposit made under that provision, and it obviously would enure towards claiming of benefit of sub-section (4) of Section 20. 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 prescribed 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."
19. By a catena of decisions of the Apex Court and of this Court, it is now settled that in order to avail the benefits under rent control legislations the tenants are obliged to strictly comply with the provisions of these rent statutes.
20. In E. Palanisamy v. Palanisamy (D) & Ors., (2003) 1 SCC 123, the Apex Court held as follows:-
"5. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well-settled that the benefits conferred on the tenants through the relevant statues can be enjoyed only on the basis of strict compliance of the statutory provisions. Equitable consideration have no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant.
(emphasis supplied)
21. In Jagat Prasad v. Distt. Judge, Kanpur & Ors.,1995 Supp (1) SCC 318 (I), with reference to the U.P. Act XIII of 1972 the Apex Court has observed as under:-
"Nevertheless, the defence of the appellant that he had deposited bona fide the rent in the civil proceeding that would enure to the benefit of the rent control proceedings is unacceptable to us. Law prescribes the procedure as to the deposit under U.P. Urban Buildings (Regulation of Letting, Rent and 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 supplied)
22. In Chotey Lal v. XIVth Additional District Judge, Kanpur & Ors., 1994 (1) ARC 289, a learned Single Judge of this Court while dealing with an identical situation has held as under:-
"The provision of sub-rules (3) and (5) of the said Rule are important. For the first deposit under Section 30, the tenant was required to take steps so that a notice about the deposit could have been served to the landlord. In subsequent deposit for continuation of depositing the amount of rent, fresh application was not necessary but process fee and the notice in Form 'F' was necessary and it is a mandatory requirement."
(emphasis supplied)
23. To the same effect are the decisions of this Court in Panna Lal v. XIIIth ADJ & Ors, 1999 (1) ARC 473; and Gulam Mohammad Ansari v. III ADJ & Anr., 2004 (22) LCD 765.
24. Thus, mere deposit of the amount under Section 30 is not sufficient. For treating the deposit as valid, due compliance of law and availability of the same to landlord is also necessary. The manner in which the rent is to be deposited under Section 30 of the Act has been laid down in Rule 21 of the Rules. The deposit made under Section 30 of the Act is deemed to be a deposit in favour of the landlord. For treating the deposit as valid, the requirements under Rule 21 of the Rules have to be complied with strictly.
25. In the case at hand, on 26.02.1981, Sri Ram Kumar Vaish deposited a sum of Rs.882/- under Section 30(1) of the Act towards rent for the period 01.01.1977 to 31.01.1981. Subsequently, he deposited rent from 01.02.1981 to 31.03.1992 and after his death his wife Smt. Rani Devi, the petitioner no.1 deposited Rs.1098/- towards rent for the period 01.04.1992 to 30.04.1997 and again a sum of Rs.738/- towards rent for the period 01.05.1997 to 30.04.2000. Both the Courts below have returned a concurrent finding of fact that the deposits made subsequent to the deposit made on 26.02.1981 were not accompanied by process fee and notice in Form F as required under Rule 21(5) of the Rules. This fact is not disputed by the learned counsel for the petitioners.
26. It is, thus, clear that the deposit made by Ram Kumar Vaish and thereafter his wife - the petitioner no.1 for the period 01.02.1981 onwards cannot be treated to be a valid deposit under Section 30 of the Act as it was not made in the prescribed manner and, therefore, cannot be deducted from the total amount of rent and damages due from the petitioners. Even if the rent deposited by Ram Kumar Vaish from 01.01.1977 to 31.01.1981 is deducted from the total amount due against the petitioners, it cannot be said that the petitioners deposited the entire amount of rent and damages due from them. As a natural corollary, this Court can safely arrive at the conclusion that the petitioners are not entitled to the benefit of Section 20(4) of the Act.
27. The Rent Control Act is a social welfare legislation meant to protect and safeguard the interests of bonafide tenants in possession. The Act has put restrictions on the right of the landlord to seek eviction of the tenant on the ground of default in the payment of rent which are regulated by sub-section 2(a) of Section 20 the Act. A tenant is under an obligation to pay or tender the rent in respect of building under his occupation in time. Non payment of rent entitles the landlord to seek possession only after compliance with sending a registered notice to the tenant intimating the default. On receipt of notice, it is open to a tenant to pay the rent and save himself from eviction. In case the default subsists and a suit for arrears of rent and eviction is filed against him, law gives him a third opportunity to save himself from eviction by paying rent along with interest and cost as mentioned in Section 20(4) of the Act. If at the first hearing of the suit, the tenant unconditionally pays the entire amount of rent and damages in terms of Section 20(4) of the Act, the right accrued to the landlord to get possession on this ground is defeated. It is only such tenants who default to pay rent at all the three relevant times that the law requires him to be dispossessed. In the instant case, the petitioners have failed to pay the arrears of rent at all the three relevant times.
28. Under the facts and circumstances of the case, the petitioners are not entitled to any discretionary relief under Article 227 of the Constitution.
29. The petition is devoid of merit and is accordingly dismissed.
30. There shall be no order as to costs.
Order Date :- 18.04.2018 Pradeep/-