http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: MAIKU

       Vs.

RESPONDENT: VILAYAT HUSSAIN THROUGH L.Rs.

DATE OF JUDGMENT10/04/1986

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) DUTT, M.M. (J)

CITATION:  1986 AIR 1645            1986 SCR  (2) 461  1986 SCC  (2) 554        1986 SCALE  (1)1033

ACT:      United  Provinces   (Temporary)  Control  of  Rent  and Eviction Rent,  1947 -  S. 7C  - Rent  tendered by  tenant - Landlord refused  to accept  - Application for permission to deposit  rent   in  Court   -  Tenant’s   allegations  about landlord’s  refusal   to  accept   rent  offered  by  tenant sufficient to  grant permission  - Eviction  suit - Tenant’s failure to  establish that  landlord refused  to accept rent offered by  him -  Tenant liable  to eviction  on ground  of default.      Deposit of  rent  in  Court  -  Service  of  notice  on landlord - When to be made by Court.

HEADNOTE:      The appellant-tenant  neither paid  the arrears of rent in spite  of verbal  demand, notice  of demand,  and  notice under s.106 of the Transfer of Property Act, nor vacated the premises. The  landlord, therefore,  filed a  suit  claiming arrears of  rent and  damages for  the period  of default as also pendente lite and future.      The claim was resisted by the tenant contending that he was not a defaulter, that the landlord had refused to accept the rent  tendered by  him and that he deposited the same in the Court  under s.  7C of  the United Provinces (Temporary) Control of  Rent and  Eviction Act,  1947. The  trial  Court decreed the suit holding that the deposit of arrears of rent by the  tenant was  not a  valid deposit  and, therefore, it could not  absolve the liability of the tenant from eviction inasmuch as  the tenant  had failed  to establish  that  the landlord had refused to accept the tender made by him.      The Additional  Civil Judge  allowed the  appeal by the tenant and  held that  he was  not a defaulter on account of the deposit made under s. 7C of the Act.      In the  second appeal  by the  landlord, the High Court set 462 aside the  judgment and  decree of the Lower Appellate Court as regards  eviction and  restored the  decree of  the trial Court.      In the  appeal to this Court it was contended on behalf of the appellant-tenant: (i) that if the arrears of rent had been deposited  with permission  of the Court under s. 7C of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

the Act,  it must  be presumed that the landlord had refused to accept  the rent tendered by the tenant; (ii) that as the landlord did  not raise  any objection  in  the  proceedings under s.  7C he  can neither  question the  validity of  the order passed  in those proceedings nor the Court can go into the question  of validity  of the  deposits made;  and (iii) that the  First Appellate  Court had  recorded a  finding of fact believing the statement of the tenant that the landlord had refused to accept the rent when tendered to him and also refused to  accept the  amount sent  by money-order and this finding could  not have  been set aside by the High Court in second appeal.      Dismissing  the  appeal  and  disposing  of  the  Civil Miscellaneous Petition, ^      HELD: 1. There is no error, much less a manifest error, for interference  with the  judgment of the High Court. [469 D-E]      2. The  mere fact  that an  application under s. 7C for permission to deposit the arrear of rent has been allowed by the Munsif  will not  absolve the  tenant from  establishing before the Court, where the suit for eviction was filed that the  landlord  had  refused  to  accept  the  rent  lawfully tendered. The  tenant must  establish before the trial Court the factum  of refusal  by the landlord when the payment was sought to be made to him. [469 C-D]      3. Section  7C permits  a tenant to deposit the arrears of rent  in Court  only under  two conditions : (i) when the landlord refuses  to accept any rent lawfully paid to him by the tenant  in respect  of any accommodation, and (ii) where any bona  fide doubt or dispute has arisen as to the persons who were  entitled to receive any rent referred to in sub-s. (1) in  respect of  any accommodation.  If  the  deposit  of arrears of  rent was  a valid deposit in accordance with the requirements of s. 7C certainly it will amount to payment to the landlord  and the  tenant  will  be  absolved  from  the liability of being 463 evicted. But  the Court  itself cannot  go into the question whether the  landlord had  refused to  accept the  rent paid lawfully or  otherwise. If the Munsif had only to accept the application and  accord permission  to the tenant to deposit the arrears  in Court  merely on  the basis  that  necessary allegations in the application as required by s. 7C had been made,  he   was  not   obligated  to   enquire  whether  the allegations were  correct or  not. However, the Court trying the suit  for eviction  cannot be  precluded from  enquiring about the validity of the permission under s. 7C. [467 C-F]      4. In the instant case, the finding of fact recorded by the First  Appellate Court  believing the  statement of  the tenant that the landlord had refused to accept the rent when tendered to  him and  also refused to accept the amount sent by money-order, is based on surmises and conjectures than on the basis  of the  material on  record. Therefore,  the High Court was  fully justified  in  reversing  this  finding  in second appeal  as it  was vitiated in law. The only evidence is the  deposition of  the tenant  which the trial Court did not rely  upon, and  even the  First Appellate Court did not categorically say  that it  believed the  deposition of  the defendant. Since  the compliance of the ingredients of s. 7C had not been established, the tenant-appellant was liable to be evicted. [467 G; 469 A-B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 413 of 1986 From the Judgment and Order dated 10th February, 1976 of the Allahabad High Court in Second Appeal No. 2337 of 1966.      R.K. Jain and Shakeel Ahmed for the Appellant.      N.A.  Khan,  Manoj  Swarup  and  U.S.  Prasad  for  the Respondents.      The Judgment of the Court was delivered by      R.B. MISRA,  J. The  only question for consideration in this appeal  by special  leave is  whether  the  deposit  of arrears  of  rent  under  s.  7C  of  the  United  Provinces (Temporary) Control of Rent and Eviction Act, 1947 will save the tenant from the penalty of being evicted for non-payment of rent. 464      The appellant  is a  tenant  of  the  respondent  on  a monthly rent of Rs. 6.25 per mensem. He fell into arrears of rent amounting  to  Rs.  318.75  for  the  period  from  1st October, 1959 to 31st December, 1963. The tenant did not pay the  aforesaid   amount  in  spite  of  the  verbal  demand. Consequently, the  landlord served  upon the tenant a notice of demand.  The tenant,  however, failed  to comply with the said notice,  hence he  became  a  defaulter.  The  landlord thereafter served  another notice on the tenant under s. 106 of the  Transfer  of  Property  Act.  The  tenant,  however, neither vacated  the premises  nor cleared  the  arrears  of rent. The  landlord was,  therefore, obliged to file a suit. He, however,  claimed a  sum of Rs.176.68 as arrears of rent for the  period from Ist October, 1961 to 8th February, 1964 the claim  for rent  for the  remaining period having become barred by  time. He  also claimed  a sum  of  Rs.  58.23  as damages for  the period  from 9th  February,  1964  to  22nd October, 1964  as also  pendente lite  and future damages at the rate of Rs. 6.25 per mensem.      The claim was resisted by the tenant on the ground that he was  not  a  defaulter  inasmuch  as  whatever  rent  was tendered to  the landlord he refused to accept the same and, therefore, he  was constrained  to deposit  the amount, that is, a  sum of  Rs. 231.25 for the period from Ist September, 1961 to 30th September, 1964 in the Court under s. 7C of the Act. He  also disputed the date of tenancy as alleged by the respondent-landlord.      The  trial  Court  came  to  the  conclusion  that  the defendant became  a tenant  from 17th  January, 1962 and not from 1959,  as alleged  in the  plaint. As  the  deposit  of arrears of  rent by  the tenant  under s. 7C was not a valid deposit, therefore,  it could  not absolve  the liability of the tenant  from eviction  inasmuch  as  the  defendant  had failed to  establish that the landlord had refused to accept the tender  made by  the tenant.  Accordingly, the  suit for recovery of arrears of rent amounting to Rs. 154 and damages amounting to  Rs. 58.23  was decreed  with pendente lite and future mesne profits at the rate of Rs. 6.25 per mensem.      On appeal  the learned  Addl. Civil  Judge reversed the finding of  the trial court and held that the tenant was not a defaulter  on account  of the deposit made by him under s. 7C of 465 the said  Act and  set aside  the judgment and decree of the trial Court  for eviction.  In second  appeal the High Court set aside  the judgment  and decree  of the  lower appellate court as  regards eviction  and restored  the decree  of the trial Court. The tenant has now come in appeal to this Court as stated earlier, by special leave.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

    Shri  R.K.   Jain  appearing   for  the  appellant  has contended that  if the  arrears of  rent had  been deposited with permission  of the court under s. 7C of the Act it will be presumed that the landlord had refused to accept the rent tendered by the tenant. As a second limb to this argument it was contended  that it  was not  open to the Court in a suit for eviction  to go  into the  question of  validity of  the deposit made  under s.  7C. He  produced a certified copy of the order  of the  Munsif City, Kanpur dated 30th July, 1962 allowing the  application made  by the tenant for permission to deposit the arrears of rent. The Order reads :           "This is an application under s. 7C(1) of the U.P.           Act III  of 1947.  The opp.  party was served with           the notice.  No objection  filed. The  case  falls           under s.  7C(1) the  ingredients of which are made           out. Hence  the applicant  tenant  is  allowed  to           deposit rent  in this  Court  regularly  under  s.           7C(1) and  the opp.  party landlord is entitled to           withdraw the money." On the  strength of  this order it was strenuously contended by Shri  Jain that  no objection  was  ever  raised  by  the landlord  in  proceedings  under  s.  7C  of  the  Act  and, therefore, it  is not  open to  him to raise the question of validity of the order passed under s. 7C.      The question  that squarely  falls for consideration is whether the  order granting  permission  to  the  tenant  to deposit the  arrears of  rent in  court  is  sacrosanct  and cannot be challenged in a regular suit for eviction. Indeed, the Munsif  before whom  the application  for permission was filed  was   not  required   to  determine  the  rights  and obligations of  the tenant. All that he had to do on deposit of rent  under s.  7C was  to issue a notice to the landlord informing him that such deposit had been made. Section 7C so far as material, provides : 466           "7C Deposit of Rent in Court:- (1) When a landlord           refuses to accept any rent lawfully paid to him by           a tenant  in  respect  of  any  accommodation  the           tenant may  in the  prescribed manner deposit such           rent and  continue to  deposit any subsequent rent           which becomes due in respect of such accommodation           unless the  landlord in  the meantime signifies by           notice in writing to the tenant his willingness to           accept.           (2) Where  any  bona-fide  doubt  or  dispute  has           arisen as to the person who is entitled to receive           any rent  referred to  in sub-s.(1)  in respect of           any  accommodation,   the  tenant   may  similarly           deposit the  rent stating  the circumstances under           which such  deposit is  made and  may  until  such           doubt has  been removed  or such  dispute has been           settled by the decision of any competent Court, or           by settlement  between the  parties,  continue  to           deposit,  in   like  manner,  the  rent  that  may           subsequently  become   due  in   respect  of  such           building.           (3) The  deposit referred  to in sub-s. (1) or (2)           shall be  made in  the Court  of the Munsif having           jurisdiction in  the area  where the accommodation           is situate.           (4) On  any deposit  being made  under sub-s. (1),           the court  shall cause  a notice of the deposit to           be served  on the  landlord,  and  the  amount  of           deposit  may  be  withdrawn  by  the  landlord  on           application made  by him  to  the  Court  in  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

         behalf.      Section 7C  gives a right to the tenant to deposit rent when a  landlord refuses to accept any rent lawfully paid to him by the tenant. A tenant may allege that the landlord had refused to accept any rent lawfully paid to him. The section itself does  not require  the Munsif to go into the question whether the  landlord had  refused to  accept the  rent paid lawfully or  otherwise. We  fail to  understand how,  as the learned Munsif  observed, the opposite party was served with a notice.  Sub-s. (4)  of s.  7C contemplates  of  only  one notice after  the deposit,  in pursuance  of the  permission granted to  deposit the  arrears of rent under this section. In the absence 467 of any  provision for  sending notice to the landlord before granting permission to the tenant, we fail to understand how a notice  was sent to the landlord before the passing of the order. The  sub-s. clearly  contemplates that on any deposit being made  under sub-s.  (1) the court shall cause a notice of the  deposit to  be served on the landlord and the amount of deposit  may be  withdrawn by the landlord on application made by  him to  the court in this behalf. If the Munsif was to accord  the permission  to deposit  the arrears  of  rent merely on  being satisfied  that the necessary allegation as required by  s. 7C  of the  Act  has  been  made,  viz.  the landlord had refused to accept the rent lawfully tendered to him, he  was not obligated to enquire whether the allegation made in the application was correct or not.      Section 7C  permits a  tenant to deposit the arrears of rent in  court only  under two  conditions :  (1)  when  the landlord refuses  to accept any rent lawfully paid to him by the tenant  in respect  of any accommodation, and (ii) where any bonafide  doubt or  dispute has  arisen as to the person who was  entitled to  receive any rent referred to in sub-s. (1) in  respect of  any accommodation.  If  the  deposit  of arrears of  rent was  a valid deposit in accordance with the requirements of s. 7C certainly it will amount to payment to the landlord  and the  tenant  will  be  absolved  from  the liability of  being evicted.  But if  the Munsif had only to accept the  application and  accord permission to the tenant to deposit  the arrears  in court  merely on  the basis that necessary allegations  in the  application as required by s. 7C had  been made,  the court  trying the  suit for eviction cannot be precluded from enquiring about the validity of the permission under s. 7C.      It was  next contended for the appellant that the first appellate court had recorded a finding of fact believing the statement of  the tenant  that the  landlord had  refused to accept the  rent when  tendered to  him and  also refused to accept the amount sent by money order and this finding could not have  been set aside by the High Court in second appeal. We are  afraid this contention has no substance. The finding recorded by  the first  appellate court  is  based  more  on surmises and  conjectures than  on the basis of the material on record. We would do no better than quote the observations made by the first appellate court : 468           "The appellant  having admitted deposit of rent in           court under  s. 7C  and the  court having accepted           the deposit holding the ingredients of the section           to have been made out and permitting the appellant           to continue  depositing rent in future also, prima           facie the  deposit has  to be treated as valid and           the burden  lay on  the plaintiff to show that the           entire proceedings  under s.  7C were  invalid and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

         the  Munsif  had  absolutely  no  jurisdiction  to           entertain   the   application   and   accept   the           deposit... The  circumstances  of  the  case  also           indicate that  the rent must have been tendered by           the defendant  and might  have been refused by the           plaintiff. When  the  defendant  had  applied  for           allotment of  the shop  in his name, plaintiff had           filed  objections  before  the  Rent  Control  and           Eviction Officer  but his  objections  were  over-           ruled and  allotment was  made in  favour  of  the           defendant. This  was bound  to cause  annoyance to           the plaintiff  and he might have refused to accept           the rent on that account."      Obviously, the first appellate court was of the opinion that once  permission had  been granted by the Munsif to the tenant to  deposit arrears of rent it would be presumed that the permission  was a valid one under s. 7C and this view of that court had coloured its findings and it had entered into surmises and conjectures.      The trial  Court had  rejected  the  testimony  of  the defendant with  regard to  the tender  of rent on the ground that  he   was  an  interested  witness.  According  to  his deposition he  had gone  to pay the arrears of rent prior to bringing the  application under  s. 7C and that he had twice tendered the  amount of  arrears by hand to the plaintiff in the presence  of  plaintiff’s  son  and  the  plaintiff  had refused to  accept it.  He further deposed that the rent was tendered by  money order  also but the plaintiff had refused to accept  it. The defendant did not care to file the postal receipts  in  the  present  case  nor  did  he  produce  the plaintiff’s son before whom he made tender which was refused by the  plaintiff. Unless  the evidence  was  filed  in  the present case  that could  not be taken into consideration by the court  by summoning  the file  of some  other case.  The first appellate court had, however, relied upon the 469 postal money  order receipts  by looking into the records of the  proceedings   under  s.  7C.  The  High  Court  in  the circumstances was  fully justified  in reversing the finding recorded by  the first appellate court as it was vitiated in law.      It may  look hard that the tenant who had deposited the rent in  court under  s.  7C,  has  to  be  evicted  as  the ingredients of  s. 7C  had not been established but there is no help.  In the  instant case  the  only  evidence  is  the deposition of  the tenant which the trial court did not rely upon  and   even  the   first  appellate   court   did   not categorically say  that it  believes the  deposition of  the defendant. The  law in  our opinion is clear that the tenant must establish  before the  court  in  which  the  suit  for eviction has  been filed,  the  factum  of  refusal  by  the landlord when  the payment was sought to be made to him. The mere fact  that an application under s. 7C for permission to deposit the  arrears of  rent has been allowed by the Munsif will not  absolve the  tenant from  establishing before  the court, where  the suit  for eviction  was  filed,  that  the landlord had refused to accept the rent lawfully tendered.      For the  reasons given  above we do not find any error, much less  a  manifest  error,  for  interference  with  the judgment of  the  High  Court.  The  appeal  is  accordingly dismissed, but  there is, however, no order as to cost. With the dismissal  of the  appeal the  stay order stands vacated and no  separate order  is needed.  The civil  miscellaneous petition is disposed of accordingly. A.P.J.                                     Appeal dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

470