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PETITIONER: MANGAL SEN

       Vs.

RESPONDENT: KANCHHID MAL

DATE OF JUDGMENT20/08/1981

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) PATHAK, R.S. VENKATARAMIAH, E.S. (J)

CITATION:  1981 AIR 1726            1982 SCR  (1) 331  1980 SCC  (4) 117        1981 SCALE  (3)1242  CITATOR INFO :  D          1986 SC1753  (9)

ACT:      U.P. Urban  Buildings (Regulation  of Letting, Rent and Eviction) Act, 1972, section 20(2) (a) (4)-Scope of.

HEADNOTE:      The respondent-landlord  filed  a  suit  under  section 20(2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and  Eviction) Act  1972 against  the appellant praying for his eviction from the suit premises. It was alleged that the tenant  was in  arrears of  rent for  not less than four months from  April 9,  1972, that  he had  failed to pay the same within one month from the date of the notice to him and that the  tenant had declined to pay arrears of rent despite the notice.      While denying  the allegation  of default in payment of rent the  tenant claimed  that since he stood surety for the landlord for  the payment of arrears of sales tax payable by him there could not be any question of arrears of rent being outstanding against him to the landlord.      Although the  trial Court  found it  as a fact that the tenant had  committed default  in payment  of rent  for more than four  months after the notice of demand had been issued it held that the landlord’s action in inducing the tenant to stand surety  for him  for payment  of arrears  of sales tax constituted waiver  of the demand for rent and that for this reason the  landlord was  not  entitled  to  the  relief  of ejectment.      In revision  the District  Judge found  that the tenant had at  no stage  of the  proceedings before the trial Court put forward  the plea  of waiver  but that an issue had been framed by  the trial  Court of its own accord. On merits the District Judge  held that  no conduct  on the  part  of  the landlord which  amounted  to  waiver  had  been  established because the  tenant had  not actually  made any  payment  on behalf of the landlord towards the sales tax dues.      The High Court dismissed the tenant’s revision petition under section 115 C.P.C.      [Since  in   the  special  leave  petition  the  tenant contended that the revision petition Sled by him in the High

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Court was  not  maintainable  in  law,  this  Court  granted special leave to appeal against the judgment of the District Court.] 332      Dismissing the appeal, ^      HELD: The  District Court  was right in holding That in the absence  of any plea of waiver put forward by the tenant the trial  Court was  not really called upon to go into that question. Therefore, the finding of the trial Court that the landlord’s notice  had  been  effaced  by  his  (landlord’s) subsequent conduct  which amounted  to waiver was manifestly illegal and perverse. It was the specific case of the tenant that no  amount whatever  had been  paid by him to the sales tax authorities  on behalf  of the landlord. Neither did the landlord make any endorsement on the rent deed adjusting the proposed payment  of sales tax against arrears of rent. [335 A-D]      Having failed  to establish  that he  had complied with the conditions  specified in  section 20(4)  of the  Act the tenant is  not entitled to be relieved against his liability for eviction  on the  ground set out in section 20(2 )(a) of the Act. [336 H-337 A]      The provisions of section 20(4) will get attracted only if  the  tenant  had  at  the  first  hearing  of  the  suit unconditionally paid  or tendered to the landlord the entire amount of  rent  and  damages  due  from  him  for  use  and occupation of the building together with interest thereon at 9% per  annum. There  is nothing  on record to show that the deposit was  made on  the first  date of hearing and that it was made  by way  of unconditional tender for payment to the landlord.  On   the  contrary  the  tenant  in  his  written statement, had  stated that since he had IL stood surety for the landlord’s arrears of sales tax, there was no default by him r  in the  payment of  rent.  In  the  face  of  a  plea disputing the  existence of  any arrears of rent and denying the default  the deposit  even if  made on  the date  of the first hearing, was not an unconditional tender of the amount for payment  to the  landlord. Nor  is there anything on the record to  show that  what was  deposited  was  the  correct amount calculated  in  accordance  with  the  provisions  of section 20(4) of the Act. [336 D-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 965 of 1980      Appeal by  special leave  from the  judgment dated  the 28th November,  1979 of  the Allahabad  High Court  in Civil Revision No.661 of 1977.      Manoj Swarup & Miss Lalita Kohli for the Appellant.      R. N. Sharma and N. N. Sharma for the Respondent.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. This  appeal by special leave is against a judgment rendered by the First Additional District Judge,  Bulandshahr,  allowing  a  Revision  Petition  filed before him by the respondent herein. 333      The respondent  is the  owner of  a  shop  building  in Jahangirabad town which he had let out to the appellant on a month to month tenancy basis. A suit for ejectment was filed by the  respondent in  the  Court  of  Small  Causes  (Civil Judge), Bulandshahr,  praying for  eviction of the appellant from the  shop under  Section 2() (2) (a) of the U. P. Urban

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Buildings (Regulation  of Letting,  Rent and  Eviction) Act, 1972 (for  short, the Act) on the ground that the tenant was in arrears  of rent for not less than four months commencing from April  9, 1972  and had  failed to  pay the same to the landlord within  one month from the date of service upon him of a  notice of demand (October 19, 1972). It was alleged in the plaint  that the  agreed rent  of the shop was Rs. 100/- per month  and that  the tenant had kept the rent in arrears from April 9, 1972 onwards despite notice having been served on him  on October  19, 1972 demanding payment of arrears of rent and determining the tenancy.      The appellant  (defendant) pleaded  in defence that the rent was  only Rs. 90/- per month, that he had not committed any default  in payment  of the  same and hence the suit for ejectment was  not maintainable. According to the defendant, after service of the notice of demand for payment of arrears of rent, the respondent had approached him with a request to stand surety for him for the payment of arrears of sales-tax due by  him for  the realisation  of which the Amin had come with a  warrant for  the arrest  of the respondent and since the appellant  had acceded,  to the  said request  and stood surety for the respondent there could be no further question of any  arrears of  rent being  outstanding as due by him to the respondent.      The trial  court held that the rent of the shop was Rs. 90/- per  month, that  it had  been kept  in arrears  by the tenant from  April 9,  1972 onwards  and a  default had been committed by  the tenant  in payment  of arrears  of rent of more  than   four  months   after  the   notice  of  demand. Notwithstanding the  aforesaid finding  that there  had been such default  committed by  the tenant, the trial court took the view  that the  conduct of  the plaintiff-respondent  in inducing the  defendant to  stand surety  for  him  for  the payment of sales-tax arrears due by him constituted a waiver of the demand made in the notice for surrender of possession on the  ground of  arrears of  rent made. On this reasoning, the trial court denied the plaintiff the relief of ejectment and decreed the suit only for recovery of arrears of rent.      The respondent-plaintiff carried the matter in revision before District  Court, Bulandshahr.  The  learned  District Judge found that 334 the plea of waiver had not been put forward by the defendant either in  the written  statement or  in any other manner at any stage before the trial court and that the issue covering the question of waiver had been framed by the trial court of its own  accord. The  District Judge  further found  on  the merits that  no conduct  amounting to  waiver on the part of the plaintiff  had been  established by the evidence because even  according  to  the  case  of  the  defendant  himself, excepting for  standing surety for the plaintiff, he had not actually made any payment on behalf of the plaintiff towards the sales-tax  dues since  the  plaintiff  had  specifically refused to  make any  endorsement in the Rent Deed adjusting the proposed  payment of  sales-tax against  the arrears  of rent due  by the  defendant. Inasmuch as the trial court had found that the default in payment of the arrears of rent for a period  exceeding four  months had  been committed  by the defendant and  it had  denied a  relief of ejectment only on the reasoning that there had been a waiver of the demand for eviction on  the part  of the  plaintiff, the District Judge allowed the  Revision Petition  and granted  the plaintiff a decree for ejectment under Section 20 (2) (a) of the Act.      Thereafter, the  appellant defendant took up the matter in further revision before the High Court under Section 115,

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Code of  Civil Procedure.  The High  Court by  its  judgment dated November  28,  1979  confirmed  the  findings  of  the District Judge and dismissed the Revision Petition.      The defendant  thereupon approached  this Court for the grant of  special leave  to appeal against the said judgment of the  High Court. It would appear that, at the time of the preliminary hearing  of  the  Special  Leave  Petition,  the appellant realised  that the  Revision Petition filed by him before the  High Court  was not  maintainable in law. Hence, this position  was conceded  by the appellant before a Bench which heard  the Special  Leave Petition  and a  request was made by  the appellant for the grant of special leave to him to appeal  against the  judgment of the District Court. That request was  granted by  order of this Court dated April 23, 1980.  This  Civil  Appeal  is  thus  directed  against  the judgment of the District Judge.      After hearing  counsel on  both sides, we are satisfied that the District Court was perfectly right in its view that there had  not been any conduct on the part of the plaintiff which would  constitute a  waiver by  him of  the demand for surrender of possession made as 335 per the notice dated October 9, 1972 which was served on the tenant on  October 19,  1972. As  rightly  observed  by  the District Court,  the defendant  had not put forward any plea of waiver  in the  written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the  trial court  was not  really called  upon to go into the  question of waiver. Further, it being the specific case put  forward by  the defendant  himself that  no amount whatever had  been paid  by the  appellant-defendant to  the sales-tax authorities  on behalf  of the  plaintiff and that the respondent-plaintiff  was  not  agreeable  to  make  any endorsement on  the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can  be said  that there  had  been  any  waiver  by  the plaintiff-respondent  of   the  demand   for  surrender   of possession already  made by  him as  per  the  notice  dated October 9,  1972. The  finding rendered  b)! the trial court that the  effect of  the notice  had  been  effaced  by  the subsequent  conduct  on  the  part  of  the  landlord  which amounted to a waiver was manifestly illegal and perverse and it was rightly set aside by the District Judge.      Before us,  an additional point was sought to be raised by the  appellant which  had not  been put  forward  by  him either before  the trial  court or before the District Judge at the  revisional stage.  It was  urged that on the date of first hearing  of the  suit the defendant had deposited into the trial  court an  amount of  Rs. 1,980/-  and hence he is entitled to  the benefit of sub-section (4) of Section 20 of the Act  which empowers the Court to pass an order relieving the tenant  against his liability for eviction on the ground mentioned in  clause (a)  of sub-section  (2)  of  the  said Section. It is necessary in this context to reproduce clause (a) of  sub-section (2) and sub-section (4) of Section 20 of the Act. They are in the following terms:           "20 (2)..........................................           (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.           (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  the entire amount of

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    rent and damages for use and occupation of the building      due from him (such damages for 336      use and occupation being calculated at the same rate as      rent) together  with interest  thereon at  the rate  of      nine per cent 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 (I)  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:           Provided that  nothing in  this sub-section  shall      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,  municipality,      notified area or town area."      The provisions  of sub-section  (4) will  get attracted only if  the tenant  has, at  the first hearing of the suit, unconditionally paid  or tendered to the landlord the entire amount of  rent and  damages for  use and  occupation of the building due  from him together with interest thereon at the rate of  nine per cent per annum and the landlord’s costs of the suit  in respect  thereof, after deducting therefrom any amount already  deposited by  him under  sub-section (I)  of Section 30. There is absolutely no material available on the record to  show that  the alleged deposit of Rs. 1,980/- was made by  the tenant on the first date of hearing itself and, what is  more important,  that the  said deposit was made by way of  an unconditional tender for payment to the landlord. The deposit  in question  is said  to have  been made by the appellant on  January  25,  1974.  It  was  only  subsequent thereto that  the appellant  filed his  written statement in the suit.  It  is  noteworthy  that  one  of  the  principal contentions raised by the appellant-defendant in the written statement was  that  since  he  had  stood  surety  for  the landlord for  arrears of  sales-tax, there was no default by him in  the payment  of rent.  In the  face of the said plea taken in  the written  statement, disputing the existence of any arrears  of rent  and denying  that  there  had  been  a default, it  is clear  that the deposit, even it was made on the date  of the  first hearing,  was not  an  unconditional tender of  the amount  for payment to the landlord. Further, there is  also nothing  on record  to  show  that  what  was deposited was  the correct  amount calculated  in accordance with  the   provisions  of   Section  20   (4).   In   these circumstances, we  hold that  the appellant  has  failed  to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is 337 not entitled  to  be  relieved  against  his  liability  for eviction on  the ground set out in clause (a) of sub-section (2) of the said Section.      This appeal  is, therefore,  devoid of  merits  and  is accordingly dismissed.  We direct  the parties to bear their respective costs. N. K. A.                                   Appeal dismissed. 338