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PETITIONER: RAM DEO

       Vs.

RESPONDENT: UMRAO SINGH

DATE OF JUDGMENT15/11/1979

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1980 AIR  323            1980 SCR  (2)  67  1980 SCC  (1)  59

ACT:      U.P. (Temporary) Control of Rent and Eviction Act 1947- Section 3(1)(a)-Scope of

HEADNOTE:      In respect  of arrears  of rent the respondent-landlord and the  appellant  who  was  his  tenant  entered  into  an agreement on  June 13,  1960 that the tenant would pay every month Rs.  50/- representing Rs. 25/- as arrears of rent and Rs.  25/-   towards  the  current  rent.  For  sometime  the appellant made the payments in accordance with the agreement but thereafter  fell in  arrears. The  respondent  served  a notice of  demand upon  the appellant  on August  21,  1961. Eventually the  respondent instituted a suit for damages and eviction of the appellant from the premises.      The appellant  pleaded that  the arrears of rent due at the date  of notice  were Rs. 75/- only which did not exceed three months  rent  and  that  the  balance  of  the  amount demanded  represented  only  past  arrears  covered  by  the agreement in  respect of  which the  landlord had waived his right of ejectment.      Dismissing the  suit the  trial court  held  that  only three months  rent was in arrears and no ground for eviction had  been  made  out  under  section  3(1)(a)  of  the  U.P. (Temporary) Control of Rent and Eviction Act, 1947.      On appeal the Civil Judge was of the view that the rent in arrears  on the  date  of  agreement  did  not  lose  its character as  "arrears of  rent" merely because there was an agreement to  pay it in instalments. The High Court affirmed the finding of the Civil Judge.      In appeal  to this  Court it was contended on behalf of the appellant that out of Rs. 150/- due to the respondent on the date  of his  notice only  Rs. 75/-  was due towards the arrears of  rent for three months preceding the notice while the balance  of Rs  75/- was  a distinct liability under the agreement and  therefore, could not be treated and tacked on as arrears  of rent  to the  rent due  for the  three months preceding the  date of  notice, for  the purpose  of section 3(1) (a) of the Act.      Allowing  the  appeal  and  accepting  the  appellant’s contention, ^

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    HELD: 1.  The appellant was not in "arrears of rent for more than  three  months"  within  the  meaning  of  section 3(1)(a) of  the Act  and therefore  was  not  liable  to  be evicted under the clause. [71 F]      2. As a result of the agreement dated June 13, 1960 the pre-agreement  arrears  lost  their  original  character  of "arrears  of   rent"  and   assumed  the   character  of   a consolidated debt,  which under  the terms of the agreement, was  payable   by  the   debtor   (appellant)   in   monthly instalments. The agreement 68 brought into  being a  new cause  of action  and  created  a liability against  the tenant, independent and distinct from that founded  on the rent note or the lease of the premises. The arrears of three instalments due under the agreement had ceased to be "arrears of rent" and could not be tacked on to the rent  due for three months preceding the date of notice, for the purpose of the section.[71 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2601 of 1969.      Appeal by  Special Leave  from the Judgment dated 21-8- 1069 of  the Allahabad  High  Court  in  Second  Appeal  No. 2693/63.      W.S. Barlingay and R.C. Kohli for the Appellant.      S.L. Aneja and K.L. Taneja for the Respondent.      The Judgment of the Court was delivered by      SARKARIA, J.  This appeal  by special leave is directed against a judgment, dated August 21, 1969, of the High Court of Allahabad, affirming on second appeal the judgment of the Civil Judge, Dehra Dun. It arises out of these facts:      Umrao Singh,  respondent herein,  who died  during  the pendency of  proceedings in this Court and is substituted by his legal  representatives, instituted  a suit  on September 26, 1961  against Ram Deo, appellant herein, for damages and for eviction  from House No. 122B, Choharpur, District Dehra Dun. Umrao  Singh was the landlord of the suit premises. Ram Deo was occupying the premises at a monthly rent of Rs. 25.      On June  13, 1960,  a sum  of Rs.  600 was  due to  the respondent from  the appellant  as arrears  of rent  and  an agreement was  executed between  the parties  on that  date, according to  which the tenant had to pay Rs. 50 every month to the  respondent, to wit Rs. 25 towards liquidation of the compounded arrears of rent, and Rs. 25 per month towards the current rent  falling due.  The appellant  fell  in  arrears again. Thereupon,  the respondent  served a notice of demand upon the  plaintiff on August 21, 1961, requiring him to pay Rs. 380 as the arrears of rent (Rs. 5 being balance due from the period April 10, 1960 to May 9, 1960 and Rs. 370 for the period from May 10, 1960 to August 9, 1961) within one month from the receipt of the notice.      The tenant-appellant pleaded that the parties had acted upon  the  said  agreement  dated  June  12,  1960,  and  on settlement of  accounts in  April 1961, a sum of Rs. 305 was alleged  to   be  due  to  the  respondent.  Thereafter  the appellant made  another payment  of Rs. 50 to the respondent on June 6, 1961. On September 27, 1961 appellant tendered to the respondent a sum of Rs. 200. The respondent did not 69 accept this  tender, and  instead, instituted  the suit  for damages  and   eviction  of  the  appellant  from  the  said premises.

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    The tenant further pleaded that the arrears of rent due at the  date of  notice was Rs. 75 only which did not exceed three months’  rent, that  the rest  of the  amount (Rs. 75) demanded  represented  only  past  arrears  covered  by  the agreement in  respect of  which the  landlord had waived his right of ejectment.      The trial  court held  that from  Ex. A-2, it was clear that only  three months’  rent was in arrears and therefore, no ground  for eviction had been made out under Section 3(a) of the U.P. (Temporary) Control of Rent and Eviction Act No. III of  1947 (hereinafter referred to as the Act). With this reasoning,  the   trial  court  dismissed  the  respondent’s petition for eviction.      On appeal,  the Additional  Civil Judge,  Dehra Dun, by his judgment dated May 29, 1963, reversed the finding of the Munsif and held that the rent which was in arrears upto June 13, 1960  and which  was the subject-matter of the agreement of that  date, did  not lose  its character  as "arrears  of rent" merely  because there was an agreement to pay the same in instalments. On these premises, he allowed the appeal and directed eviction of the tenant.      The tenant  carried a further appeal to the High Court. The High  Court affirmed  the finding of the Civil Judge and dismissed the appeal. Hence this appeal by the tenant.      Dr. Barlingay,  learned counsel  for the  appellant has advanced two  contentions. First,  that out of the amount of Rs. 150 due to the respondent at the date of the notice, Rs. 75 was due under the agreement dated June 12, 1960, and that amount could  not be  treated as arrears, of rent and tacked on to  three months current rent in arrears, for the purpose of clause  (a) of Section 3(1) of the Act. It is argued that the liability to pay the past amount of Rs. 75 arises out of the aforesaid agreement which furnished an independent cause of action  different from  that founded  on the rent note or the lease  of the  premises. Second, that Section 114 of the Transfer of Property Act will be applicable to the situation because this  is a  matter on  which the Rent Act is silent. Since the  tenant has cleared all the arrears of rent on the first hearing  of the  suit, he could not be evicted in view of the  provisions contained  in Section 114 of the Transfer of Property Act.      In reply,  Mr. Aneja  submits  that  the  pre-agreement arrears of  rent did  not lose  their original  character as arrears of  rent, merely  because the landlord had agreed to allow the tenant to clear them in instal- 70 ments. It  is emphasised  that what  was intended  to be  an accommodation could  not be  turned into  a handicap for the landlord. It  is argued that since on the date of the demand notice served  upon the appellant, the latter was admittedly liable to  pay Rs.  150; Rs. 75 towards the rent of 3 months prior to  August 12,  1961 and  Rs. 75  towards the  rent of three months  preceding the demand notice, he was in arrears of rent  for a period of "more than three months" within the meaning of clause (a) of Section 3 of the Act, and, as such, was liable to be evicted.      We will now deal with the first contention canvassed by Dr. Barlingay.      The material  part of  Section 3  of the  Act reads  as follows:           "3(1). Subject  to any  order  passed  under  sub-      section (3)  no suit  shall, without  the permission of      the District  Magistrate, be  filed in  any civil court      against  a   tenant   for   his   eviction   from   any      accommodation, except  on one  or more of the following

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    grouds:-           (a)  That the tenant is in arears of rent for more                than three  months and  has failed to pay the                same to  the landlord within one month of the                service upon him of a notice of demand.           (b) to (g)........................." In order  to make out a ground for eviction under clause (a) of Section 3(1) the landlord must establish three facts: (i) that the  tenant is  in arrears  of  rent;  (ii)  that  such arrears are  of rent  for more  than three months, and (iii) the tenant has failed to pay the same to the landlord within one month  of the service upon him of a notice of demand. If any one  of these factual ingredients is not established, no order of  eviction can  be passed  under this Clause. In the present case,  there is  no dispute  that at the date of the notice, the  tenant  owed  an  amount  of  Rs.  150  to  the landlord, out of which Rs. 75 represented three months’ rent preceding the  notice. There  is also  no dispute  that  the balance of  Rs. 75 due from the tenant related to the period prior to  the agreement,  dated June 12, 1960, and under the agreement, the  tenant was  bound to  pay the  same in three monthly  instalments,   which  he  had,  in  breach  of  the agreement, failed  to pay.  Controversy  centres  round  the question, whether  this balance  of Rs.  75  could  also  be treated as "arrears of rent" and tacked on to the arrears of rent relating  to the  three months preceding the notice for the purpose of clause (a) of Section 3(1) of the Act. In our opinion,  the  answer  to  this  question  must  be  in  the negative. As a result of the aforesaid 71 agreement, the  pre-agreement arrears  lost  their  original character as  "arrears of rent" and assumed the character of a consolidated debt which, under the terms of the agreement, was  payable   by  the   debtor   (appellant)   in   monthly instalments. The  agreement  had  in  respect  of  the  past arrears, brought  into being  a  new  cause  of  action  and created a  liability against  the  tenant,  independent  and distinct from  that founded on the rent note or the lease of the premises.  Consequently if  the appellant,  in breach of the agreement,  defaulted to  pay any instalment, the remedy of the respondent (creditor) would be to file a suit for the recovery of  the amount  due on  the basis of the agreement, dated June  12, 1960. Thus, the arrears of three instalments due under  the agreement  had ceased to be "arrears of rent" and could  not be  tacked on  to the arrears of three months rent due  at the  date of  the notice,  for the  purposes of clause (a) of Section 3(1).      The proposition  can be  tested by  taking an  example. Supposing, the  appellant had  defaulted to pay four monthly instalments of  Rs. 25 each in accordance with the aforesaid agreement, but  had regularly  paid the  rent as it fell due every  month   for  the   post-agreement  period.  Will  the respondent in  such a  situation be  entitled to sue for the eviction of  the tenant  on the ground that he has committed four  successive   breaches  and  defaults  under  the  said agreement ?  The answer is an obvious ’No’. The respondent’s remedy in  such a  situation, will  only be  to sue  for the recovery of  the amounts  due on  the foot  of the aforesaid agreement.      In the  light of the above discussion the conclusion is inescapable that  for the  purposes of clause (a) of Section 3(1) the  appellant was in arrears of rent for three months, only. In  other words,  he was  not in  "arrears of rent for more than  three months"  within the  meaning of  clause (a) and, as  such, was  not liable  to  be  evicted  under  that

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clause. The High Court and the first appellate court were in error in holding to the contrary.      In the  view we  take, it is not necessary to deal with the second contention canvassed by Dr. Barlingay.      In the  result, we  allow this  appeal, set  aside  the decree of  the High Court and dismiss the respondent’s suit. In the  circumstances of  the case  however,  we  leave  the parties to pay and bear their own costs in this Court. P.B.R.                                       Appeal allowed. 72