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PETITIONER: SMT. VIJAY LAXMI GANGAL

       Vs.

RESPONDENT: MAHENDRA PRATAP GRAG

DATE OF JUDGMENT08/05/1985

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA MISRA RANGNATH

CITATION:  1986 AIR  753            1985 SCR  Supl. (1) 583  1985 SCC  (3) 364        1985 SCALE  (1)1116

ACT:      The Uttar  Pradesh Buildings  (Regulation  of  Letting, Rent and Eviction) Act. 1972.      Section 20(4)  Suit for  eviction of tenant for arrears of rent-Quantum  of rent  in dispute-Failure  of  tenant  to prove his  case-Deposit by tenant of rent at rate claimed by landlord-Such ’deposit’  whether  an  unconditional  tender- Discretionary relief-Tenant whether entitled to claim.

HEADNOTE:      The appellant-landlady  filed  a  suit  for  recovering possession from the respondent-tenant on the allegation that the demised  property  was  situated  beyond  the  municipal limits of  the town,  and was  exempt from the provisions of the Uttar  Pradesh Urban  Buildings (Regulation  of Letting, Rent and  Eviction), Act  1972, that  it was  let out to the respondent on a rent of Rs. 360 per mensem, that the tenancy had come  to an  end by efflux of the time fixed in the rent note, and  that as  the respondent was in arrears of rent to the  extent  of  Rs.  3,960  she  was  entitled  to  recover possession of  the premises  with the  arrears of  rent. The respondent oppose  the suit contending that the property was situated within  three kilometres of the municipal limits of the town  and was,  therefore, governed by the provisions of the Act,  denied that  the rent  was Rs.  360 per mensem and contended that  it was  only Rs. 125 per mensem, denied that he had  executed the  rent note, and the tenancy had come to an end  by efflux  of time,  that  the  amounts  claimed  as arrears of  rent and mesne profits were wrong and excessive, that the notice to quit was invalid in law and that the suit was barred  by the  provisions of  s. 20  of  the  Act.  The Additional District  Judge who  tried  the  suit  exercising jurisdiction as  a Judge  of Small  Causes Court, found that the property  was situate  within three  kilometres  of  the municipal limits  and was  governed by the provisions of the Act, that  the tenancy for the period of 11 months under the rent note  had come  to an  end by  efflux of  time, and the parties were  governed by it, and that the suit was governed by the  provisions of  s. 20  of the  Act. On  the  question whether the  respondent was  liable for eviction it was held that though  the respondent had deposited the full amount of

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rent as  claimed at Rs. 360 per mensem together with damages for use and occupation, interest and costs as required by s. 20(4) of  the Act  amounting to  Rs. 7,490  a day  after the first hearing date fixed for the suit, as the respondent had contended in the written statement that the rent was Rs. 125 per  mensem  the  deposit  of  Rs.  7,490  towards  arrears, interest and  costs  was  not  unconditional  and  therefore invalid 584 and s.  20(4) of  the Act  did not  help the respondent. The suit was  accordingly decreed  for eviction  with arrears of rent and mesne profits.      The respondent filed a revision petition and a Division Bench of  the High  Court noticed that one of the conditions of  s.   20(4)  of  the  Act  was  that  the  tenant  should unconditionally  pay   or  deposit  the  entire  amount  due together with  interest and  costs, and  that s.  20(6) says that any  amount deposited  under s.  20(4) shall be paid to the landlord  without prejudice  to  the  pleadings  of  the parties, and  that in the instant case the deposit would not be a  conditional deposit  merely because the respondent had contended in the written statement that the rent was Rs. 125 per mensem  and not  Rs. 360  per mensem  as alleged  in the plaint. The civil revision petition was allowed and the suit was dismissed with costs.      Dismissing the appeal, ^      HELD: 1.  The suit in the instant case, is not based on any of  the grounds  mentioned in  s.  20(2)  of  the  Uttar Pradesh Urban  Buildings (Regulation  of Letting,  Rent  and Eviction) Act,  1972 and though the respondent is alleged to have been  in arrears  of rent  to the  extent of  Rs. 3,960 there is  no allegation  in the plaint that he is in arrears of rent  for not less than four months and had failed to pay the same  to the appellant within one month from the date of service upon  him of a notice of demand, which is the ground mentioned in clause (a) of s. 20(2) of the Act. [588 G-H]      2. No  interference with the decision of the High Court is called  for. The  District  Judge  should  have  normally dismissed the  suit for  want of  jurisdiction in view of s. 20(1) of  the Act  on his finding that the Act is applicable to the  premises. It  is not known why he did not do so, but on the  other hand proceeded to hold that the deposit by the respondent is  not unconditional  as required by s. 20(4) of the Act and ordered his eviction on that basis. [589 A-B]      3. It  is not  possible to  construe s.  20(4)  in  the manner done  by the  District Judge  as that would amount to foreclosure of  any defence  regarding the  quantum of  rent even in  cases where  the amount  alleged by the landlord is more than  the actual  rent agreed  to between  the parties. [589 C]      In the  instant case, it had been found by the District Judge that  the arrears  of rent  at the rate claimed in the plaint together  with interest  and cost  had been deposited within the  time mentioned  in s.  20(4) of  the Act. Merely because the  tenant had  failed to  prove his  case that the rent was only Rs. 125 per mensem and not Rs. 360 per mensem, the discretionary relief could not be denied to him. [590 E; 591]      Mangal Sen  v. Kanchhid  Mal, [1982]  I SCR  331 at 336 distinguished.      4. The Act is a social piece of legislation which leans in favour  of tenants.  It is  not possible  to lay down any broad and general proposition that 585

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the discretionary  relief should  be denied to the tenant in all cases  where he  fails to  prove his  case regarding the quantum of rent even though he had deposited the rent at the rate claimed  by the  landlord in  the plaint  together with interest and  costs within  the time  as required by section 20(4) of the Act. [590 H; 591 B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10085 of 1983.      From the  Judgment and  Order dated  15.9.1982  of  the Allahabad High Court in Civil Revision No. 332 of 1981.      S.N. Kacker and R.B. Mahlotra for the Appellant.      Aruneshwar Gupta and B.B. Sharma for the Respondent.      The Judgment of the Court was delivered by      VARADARAJAN,   J.   The   short   point   arising   for consideration in  this appeal by special leave filed against the decision of a Division Bench of the Allahabad High Court in  Civil   Revision  No.   332  of   1981  turns  upon  the interpretation of  s. 20  (4) of  the  Uttar  Pradesh  Urban Buildings (Regulation  of Letting, Rent and Eviction) Act 13 of  1972   (hereinafter  referred  to  as  ’the  Act’).  The appellant-land-lady  filed   the  suit   on   6.8.1973   for recovering  possession   from  the  respondent-tenant  of  a portion of  premises situate  at Bhau  Ka Nagla,  Agra Road, Mauza Dholpura on the allegation that it had been let to the respondent on  a rent  of Rs.  360 per  mensem and  that the tenancy has  come to  an end  by efflux of time fixed in the rent note  on the  expiry of  30.6.1973. She  alleged in the plaint that  the demised  property  is  situate  beyond  the municipal limits  of Ferozabad  and is intended for use as a factory and is exempt from the provision of the Act and that the respondent  is in  arrears of  rent to the extent of Rs. 3,960 for  the period  from 1.8.1972 to 30.6.1973 and she is entitled to recover possession of the premises together with arrears of  rent of  Rs. 3,960 at Rs. 360 per mensem for the said period  and mesne profits at Rs. 720 for the subsequent period from 1.7.1973 at Rs. 20 per day.      The respondent  opposed the  suit contending  that  the property is  situate within  three kilometres  of  Ferozabad municipal limits  and was  not a factory when it was let out and that it is governed by the 586 provisions of  the Act.  He denied  that the rent is Rs. 360 per mensem  and contented that it is only Rs. 125 per mensem and that the tenancy includes a vacant land shaded green and yellow in  the plan filed with the plaint which according to the plaint  does not  form part of the lease. He denied that he had  executed the  rent note  mentioned in the plaint and that the  vacant land  shaded green and yellow in the plaint plan had  not been leased to him. He further denied that the tenancy has  come to  an end by efflux of time and contended that the  amounts claimed  as  arrears  of  rent  and  mesne profits are  wrong and excessive and that the notice to quit is invalid  in law  as it  excludes the  vacant land  shaded green and  yellow in  the plaint  plan  which  also  is  the subject matter  of the  lease. Finally he contended that the suit is  barred by  the provisions  of s.20  of the Act sub- section (1)  whereof says  that 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.

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    The learned  Fourth Additional District Judge, Agra who tried the  suit exercising  his Jurisdiction  as a  Judge of Small  Causes   Court  found   on  19.7.1975   that  he  had jurisdiction  while  recording  findings  on  the  point  of jurisdiction tried  as preliminary  issue, and  he held that though admittedly  even the  vacant land  marked  green  and yellow in  the plaint  plan had  been originally leased upto 27.7.1972 thereafter  only the  red marked  portion had been leased on  a rent  of Rs. 360 per mensem under the rent note (paper No. 18A) the execution whereof has been denied by the respondent, excluding  the green  and yellow marked portion. On the basis of that unregistered rent note, (paper No. 18A) he found  that the rent is Rs. 360 per mensem, rejecting the respondent’s case  that the  old rent  of Rs. 125 per mensem continued even  after the  dissolution of the partnership to which the premises had been leased earlier.      The respondent  admitted that  though the  property  is situate outside the Ferozabad municipal limits it is situate within three  kilo metres from those limits and is therefore governed by  the provisions  of the  Act while the appellant denied that  it is  situate within  three kilo  metres.  The learned District  Judge  found  on  the  evidence  that  the property is  situate within two kilo metres of the municipal limits and falls within the exception and is governed by the provisions of  the Act.  He found  that the  tenancy for the period of  11 months under the rent note (paper No. 18A) had come to an end by efflux of 587 time and  the parties  are governed  by it and that the suit is, however, governed by the provisions of s.20 of the Act.      However, the  learned  District  Judge  considered  the question whether  the respondent  is liable  for eviction in this suit  and found that the appellant had served notice of demand (paper  No. 35C)  on the  respondent and he failed to pay the  rent claimed  by the  appellant and  he is  as such liable to  be  evicted  under  s.20  of  the  Act.  But  the respondent had  deposited the full amount of rent as claimed at Rs.  360 per  mensem together  with damages  for use  and occupation, interest  and costs  as required  by s.20 (4) of the Act  on 31.10.1973,  a day  after the first hearing date 30.10.1973. The learned District Judge found that the sum of Rs. 7,490  was tendered in court on 30.10.1973 and passed by the court  on that  day  and  deposited  into  the  bank  on 31.10.1973 and  that the tender made on 30.10.1973 was valid and the  payment  must  be  deemed  to  have  been  made  on 30.10.1973 itself.  But he accepted the argument advanced on behalf of  the appellant  that because  the  respondent  had contended in  the written statement that the rent is Rs. 125 per mensem and it was rejected by the court and it was found that the rent is Rs. 360 per mensem the deposit of Rs. 7,490 towards arrears  of rent  calculated at  Rs. 360  per mensem together with  interest and  costs was not unconditional and therefore invalid  and s.20 (4) of the Act does not help the respondent. In  that view the learned District Judge decreed the suit for eviction with arrears of rent and mesne profits at Rs. 360 per mensem from 1.8.1972 and ordered credit being given for the amount deposited by the respondent towards the amount payable under the decree and granted four months time for the respondent to vacate the premises.      In C.R.P.  No. 332  of 1981  filed  by  the  respondent against the  Judgment of the trial court a Division Bench of the High Court noticed that one of the conditions of s.20(4) of the  Act is that the tenant should unconditionally pay or deposit the  entire amount  due together  with interest  and costs and that s.20 (6) says that any amount deposited under

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s.20(4) shall  be paid  to the landlord without prejudice to the pleadings  of the  parties and  subject to  the ultimate decision in  the suit,  and  they  have  observed  that  the submission made  before them on behalf of the appellant that the deposit  to be  unconditional must be on acknowledgement of the  liability for  rent as  claimed by  the landlord  if accepted would  render the  provisions in s.20(6) of the Act nugatory. They  have observed  that if  the tenant  makes  a deposit 588 with a  condition that  it shall not be paid to the landlord until the suit is decided it would be a conditional deposit. They have found that in the present case the deposit was not conditional  merely  because  while  depositing  the  amount inclusive of  rent at  the rate  of Rs.  360 per  mensem  as claimed in  the plaint  the respondent  had contended in the written statement  that the  rent is  Rs. 125 per mensem and not Rs.  360 per  mensem and  that pleading  in the  written statement that  the rent  is Rs.  125 per mensem and not Rs. 360 per  mensem does  not make  the deposit  conditional. In that view  the learned  Judges allowed  the  civil  revision petition and  dismissed the  suit with  costs  in  both  the courts.      The findings  dated 19.7.1975  recorded by  the learned District Judge  on the preliminary issue holding that he had jurisdiction to  entertain the  suit is not available in the records produced  in this  Court. Therefore, it is not known for what  reason the learned District Judge held that he had jurisdiction to  entertain  the  suit.  The  appellant  came forward with  the suit  for  recovering  possession  of  the premises together  with arrears of rent and mesne profits on the allegation  that the  tenancy under the rent note (paper No. 18A)  was for a period of only 11 months and that it had come to  an end  by efflux  of time  and  the  premises  was intended for  use as a factory and the Act is not applicable thereto. On  the other  hand, the  respondent’s defence  was that the  property was  situate within  three kilo metres of Ferozabad municipal limits and is governed by the provisions of  the  Act  and  that  the  civil  suit  for  recovery  of possession of  the property is not maintainable. The learned District Judge  accepted the  respondent’s contention on the question of  applicability of  the provisions  of the Act to the premises  in question  on the  ground that it is located within two  kilo metres  of Ferozabad  municipal limits.  S. 20(1) of  the Act  lays down  that save  as provided in sub- section (2),  no suit  shall be instituted for eviction of a tenant from a building, notwithstanding the determination of his tenancy  by efflux  of time or on the expiry of a notice to quite  or in  any other  manner. The  present suit is not based on any of the grounds mentioned in s.20 (2) of the Act and though the respondent is alleged to have been in arrears of rent to the extent of Rs. 3, 960/- there is no allegation in the  plaint that  he is  in arrears  of rent for not less than four  months and  had failed  to pay  the same  to  the appellant within one month from the date of service upon him of a  notice of  demand, which  is the  ground mentioned  in clause (a) of s.20(2) of the Act. In these 589 circumstances,  the   learned  District  Judge  should  have normally dismissed the suit for want of jurisdiction in view of s.20(1)  of the  Act on  his  finding  that  the  Act  is applicable to  the premises.  It is not known why he did not do so,  but on  the other  hand proceeded  to hold  that the deposit by  the respondent  is not unconditional as required by s.20(4)  of the  Act and  ordered his  eviction  on  that

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basis.      We entirely  agree with  the learned Judges of the High Court that  the deposit  of the  amount on the first hearing date, made  up of  rent at the rate of Rs. 360 per mensem as claimed in  the plaint  and interest  and costs could not be said to  be not  unconditional merely because the respondent had contended  in the  written statement  that the  rent was only Rs. 125 per mensem and he did not succeed in proving it at the  trial. It is not possible to construe s.20(4) in the manner done  by the  learned District  Judge as  that  would amount to  foreclosure of  any defence regarding the quantum of rent  even in  cases where  the  amount  alleged  by  the landlord is  more than  the real  rent  agreed  between  the parties.      In  this   connection  Mr.   Kacker,  learned   Counsel appearing for  appellant relied  strongly upon the following observation made  by  Balakrishna  Eradi,  J,  speaking  for himself and  Pathak and  Venkataramiah, JJ. in Mangal Sen v. Kanchhid Mal :           "The  provisions   of  sub-section   (4)  will  be      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 (1) 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 590      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 or 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 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."      The above  principle cannot  apply to  the facts of the present case,  for in that case it was not clear whether the deposit of the correct amount was made within the time fixed in s.20(4)  of the  Act whereas  in the  present case it has been found by the learned District Judge that the arrears of rent at  the  rate  claimed  in  the  plaint  together  with interest and  costs  had  been  deposited  within  the  time

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mentioned in s. 20 (4) of the Act.      Mr. Kacker next drew our attention to the language used in s.20(4)  and s.39  of the  Act and submitted that whereas the provisions of s.39 are mandatory the Rent Controller has a discretion  in s.20(4)  in lieu  of passing  a decree  for eviction on  the ground  of failure  to deposit the arrears, interest and costs within the period mentioned in s.20(4) to pass an order relieving the tenant against his liability for eviction on  that ground  and that the High Court exercising revisional jurisdiction  under s. 115 C.P.C. should not have interfered with  the discretion  exercised  by  the  learned District Judge in ordering eviction and set aside that order especially in  view of  the fact  that  the  respondent  had failed to  prove that  the rent  was only Rs. 125 per mensem and not  Rs. 360  per mensem.  We do not agree. The Act is a social  piece  of  legislation  which  leans  in  favour  of tenants. Merely because 591 the tenant  had failed  to prove  his case that the rent was only Rs.  125 per  mensem and  not Rs.  360 per  mensem, the discretionary relief  could not be denied to him even though he had  deposited the arrears of rent at the rate claimed by the landlord  in the plaint together with interest and costs within the  time mentioned  in s.20(4) of the Act. It is not possible to  lay down any broad and general proposition that the discretionary  relief should  be denied to the tenant in all cases  where he  fails to  prove his  case regarding the quantum rent  even though  he had  deposited the rent at the rate claimed  by the  landlord in  the plaint  together with interest and costs within the time as required by s.20(4) of the Act.      For the  reasons mentioned  above we are of the opinion that no  interference with the decision of the High Court is called for  in this  case. The appeal fails and is dismissed with costs. N.V.K.       Appeal dismissed. 592