@JUDGMENTTAG-ORDER
V.S. Aggarwal, J.@mdashThe present revision petition has been filed by Smt. Shila Devi (hereinafter described as "the Petitioner") directed against the judgment of the learned Appellate Authority, Bhiwani, dated 17.4.1995. By virtue of the impugned judgment, the learned Appellate Authority set aside the order passed by the learned Rent Controller and instead dismissed the petition for eviction filed by the petitioner.
2. The relevant facts are that the petitioner is the landlady of the suit premises. The respondent is a tenant at a monthly rent of Rs. 600/-. The petitioner filed eviction application against the respondent on the ground of non-payment of rent. It had been asserted that the respondent has not paid the arrears of rent from 1.6.1989 to 31.1.1989 despite several demands and requests.
3. The respondent contested the eviction petition and there was no denial regarding the relationship of landlord and tenant. However, it was denied that the respondent has not paid the arrears of rent for the period in question or that he is liable to be evicted. The respondent''s case was that he already deposited rent upto April, 1989. The petitioner has withdrawn the rent up to May, 1988 on 11.8.1988.
4. The learned Rent Controller framed the issues and held that the rent deposited was not a valid tender and accordingly on the first date of hearing or within the stipulated period the rent had not been tendered. An order of eviction was passed.
5. Aggrieved by the same, present revision petition has been filed.
6. As is apparent from the resume of the facts, given above, stress of the arguments on behalf of the petitioner has been that though the rent had been deposited in the Court of the Rent Controller by the respondent but it was not a valid deposit u/s 6-A of the Haryana Urban (Control of Rent Eviction) Act, 1973 (for short "short Act") and, therefore, the respondent was liable to be evicted. He even contended that there is no plea that the rent has been deposited in the Court or that the same had been refused by the petitioner.
7. As against this, respondent''s learned counsel argued that when the rent stood deposited, it was a payment to the petitioner. In the past, the petitioner had been withdrawing the said amount and consequently the ground of eviction could not be made available in this process.
8. To appreciate the relevant contention, reference can well be made to Section 6-A of the Act which reads as under :-
"6-A. Deposit of rent :- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, if a landlord refuses to receive, or grant a receipt for any rent payable in respect of the building on rented land when tendered to him by a tenant, the tenant may apply to the Controller for leave to deposit the rent in his office, and the Controller shall receive the deposit, if after examining the applicant he is satisfied that there is sufficient ground for the application and if the applicant pays the fee, if any, chargeable for the issue of the notice hereinafter provided.
(2) When a deposit has been received under sub-section (1), it shall be deemed to be a payment made by the tenant to his landlord in respect of the rent due.
(3) On receiving the deposit, the Controller shall give notice of the receipt thereof to the landlord and shall pay the amount thereof to him."
9. It is abundantly clear that the said provision has been inserted in the Act in the year 1978 to obviate the difficulty that a tenant may face when the landlord refuses to receive the rent or give a receipt. The tenant can apply to the Rent Controller for leave to deposit the rent and if it is satisfied the Controller may allow the deposit to be made under sub-section (2) to Section 6-A of the Act. When the deposit has been received, it shall be deemed to be a payment by the tenant and the Controller shall give notice of the receipt to the landlord. Sub-section (2)(i) to Section 13 of the Act with respect to the ground of eviction on non-payment of rent reads as under :-
"13(2)(i): that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable :
Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the Controller, at eight percentum per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid :
Provided further that landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately preceding the date of application under the provisions of this Act."
10. It is clear from the aforesaid that if the tenant had not paid or tendered the rent within 15 days after the expiry of the time fixed in the agreement, the ground of eviction becomes available but the proviso referred to above reveals that within 15 days of the first date of hearing the tenant can tender or pay the arrears of rent along with interest and costs. In that event, it shall be deemed that the rent had been paid. Of course limitation period of three years has been prescribed for which the arrears can be claimed.
11. Strong reliance on behalf of the petitioner was placed on certain decisions of the Supreme Court so as to contend that when the deposit is not valid, the ground of eviction will be available. All these decisions were under the U.P. (Temporary) Control of Rent and Eviction Act, 1947. In the case of
"As we have earlier pointed out, a liberal construction of the expression ''paid to him by a tenant'' in S. 7-C(1) is necessary. Physically offering payment when the relations between the parties are strained is to ask for trouble and be impractical. But harassing the landlord by straightaway depositing the rent in Court without fulfilment of the conditions required by Section 7-C(1) is also unwarranted. Section 7-C(6) by using the expression ''where the deposit has been made as aforesaid'' takes us back to Section 7-C(1). That is to say, the deposit is permissible only when the condition in Section 7-C(1) is complied with. If the landlord refused to accept rent paid to him a deposit is permissible. But payment need not be physical tender, person to person. It can be money-order, or through messenger or by sending a notice to the landlord asking him to nominate a bank into which the rents may be regularly paid to the credit of the landlord, if the landlord refuses under these circumstances, then a Court deposit will be the remedy."
12. Same view prevailed with the Supreme Court in the case of Maiku v. Vilayat Hussain through Legal Representatives 1986(2) RCR 394. Herein, the tenant fell in arrears of rent from October, 1959 to December, 1963. He did not pay the same despite verbal demands. The landlord served a notice. The tenant neither vacated the premises nor paid the arrears of rent. In the eviction petition, he had taken the defence that he was not a defaulter and he had deposited the rent in the Court u/s 7-C of the Act. The Supreme Court accepted the plea of the tenant and had held as under :-
"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 person who was entitled to receive any rent referred to in sub-section (1) in respect of any accommodation. If the deposit of arrears of rent was a valid deposit in accordance with the requirements of Section 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 Section 7C had been made, the Court trying the suit for eviction cannot be precluded from enquiring about the validity of the permission u/s 7C.
13. Similar was the view in the case of
"......This is not so. Section 7C as we have pointed out earlier, is only intended as a protection to the tenant to tide over a particular genuine difficulty. It enables the tenant to deposit the rent from time to time in the Court so that the arrears of rent do not accumulate and he is not constrained to pay large sums of money owning to the landlord on a future date. Secondly, it safeguards the landlord inasmuch as the rent from month to month is being deposited in the Court and the landlord is not prejudiced by a huge accumulation of rent which he may find it later on, difficult to recover. Thirdly, it also protect the tenant, in this that, if ultimately he is able to show in the eviction proceedings that the deposit was made because of the refusal of the landlord to accept the rent, it provides a complete answer to the plea of eviction u/s 3(1)(a). It cannot, therefore, be said that Section 7-C loses all its meaning and becomes otiose if it is interpreted in the restrictive manner above discussed."
14. Allahabad High Court in the case of Ram Prasad v. VIIth Additional District Judge, Meerut and others 1992(2) RCR 477, came to the same conclusion which requires no further elucidation.
15. On behalf of the respondent, however, reliance was placed on two decisions of the Supreme Court under the East Punjab Urban Rent Restriction Act, 1949. In the case of
".........In the instant case the appellant tenant chose the second course. How can it be said that a deposit before the Rent Controller where the case of the landlord was sub-judice would not be a valid deposit if it was in fact in existence on the date of the first hearing to the knowledge of the landlord ? The reasoning of the High Court that the rent was deposited earlier than 11.5.1967 and is, therefore, invalid does not appeal to us at all. In fact, if the tenant deposits the rent even before the first date of hearing it is a solid proof of his bona fides in the matter and the legal position would be that if the rent is deposited before the first date of hearing it will be deemed to have been deposited on the date of hearing also because the deposit continues to remain in the Court on that date and the position would be as if the tenant has deposited the rent in Court for payment to the landlord. This is more particularly so because the Controller gave notice to counsel for the respondent on the first date of hearing that the amount had been deposited with the Controller. In these circumstances, we are satisfied that all the conditions necessary for the application of the proviso have been completely fulfilled in this case and the High Court was not at all justified in allowing the application of the landlord and directing ejectment of the appellant."
16. The subsequent decision by the Supreme Court was rendered in the case of Mangat Rai and another v. Kidar Nath and others 1980 (2) PLR 1 The findings on similar facts were identical and in paragraph 19 of the judgment, the Supreme Court went into the background in this regard which reads :-
"Like all other Rent Control Acts in the other States in the country, the Rent Act is a piece of social legislation which seeks to strike a just balance between the rights of the landlords and the requirements of the tenant. The Act prevents the landlord from taking the extreme step of evicting the tenant merely on the ground of default in payment of rent if the landlord is guaranteed entire payment of the entire arrears of rent, cost and interest. Thus, the proviso affords a real and sanctified protection to the tenant which should not be nullified by giving a hyper-technical or literal construction to the language of the proviso which instead of advancing the objects of the Act may result in its frustration.
17. In paragraph 22 of the judgment, the findings returned thereafter are as under :-
"It was, however, urged by the respondent that in the case cited above, the rent was deposited after the suit for ejectment was filed and not before the suit, hence the deposit was held to be valid. In our opinion, this argument is not tenable because once it is held that a deposit u/s 31 of the Indebtedness Act is a valid tender having been deposited on or before the first date of hearing, the exact point of time when the deposit is made is wholly irrelevant and will not amount to non-compliance of the conditions of the proviso to Section 13(2) of the Rent Act. In the instant case, we have also found that the deposit of the arrears of rent had been made prior of the filing of the ejectment petition and the interest and cost were paid on the first date of hearing as admitted by the respondent."
18. At the outset it may be mentioned that under the East Punjab Urban Rent Restriction Act, 1949, there is no corresponding provision to Section 6-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973. The provisions of Section 6-A of the Act have been enacted for the reason which has already been recorded above. The said provisions have not been complied with. But certain basic facts of the present case cannot be lost sight of and shall not take a hind seat. Admittedly, earlier there was a litigation between the parties. The matter was before the learned Additional District Judge and the same was compromised. The relevant portion of the compromise reads as under:-
"Today, when the case was fixed for arguments, a compromise was arrived at between the parties. Their statement to that effect has been recorded in the Court today. As per terms of compromise, respondent Ram Niwas had made a statement that he would pay rent of Rs. 25,000/- for the period 1.11.1981 to 31.7.1986 at the rate of Rs. 425/- per month to the appellant with expenses of this case. Out of this amount, Rs. 7,000/- was deposited in the Court of Sub-Judge, Ch. Dadri and the remaining Rs. 6,000/- was deposited by him in the State Bank of Patiala, Charkhi Dadri, for the purpose of standing guarantee/surety in the Court. He further stated that he has no objection to the payment of Rs. 13,000/- to the landlord/plaintiff-appellant. The remaining amount of Rs. 12,000/- which is outstanding as arrears of rent against him would be paid by him in six instalments of Rs. 2,000/- each. Each instalment of Rs. 2,000/- would be paid monthly from 1.8.1986 onwards and the first instalment would be paid on 10.8.1986. Besides this the respondent has also agreed to enhance the rent from Rs. 425/- to Rs. 600/- which would also commence from 1.8.1986 which the defendant/respondent will pay to the landlord along with Rs. 2,000/- each instalment. Total sum of Rs. 2,600/- would be paid to the landlady-appellant on every 10th each month commencing from 1.8.1986 onwards and defendant would obtain receipt from the landlady of Shri R.L. Bagla, learned counsel for the landlady and in case these parsons refuse to issue receipt, he would deposit the same in the Court on or before 10th of every month. In case of failure of the deposit of amount of any instalment, as stated above, he would be deemed to be ejected from the premises in question forthwith. However, the landlady will be entitled for the possession of the suit property and would also remain entitled along with rent further outstanding at Rs. 600/- the recovery of the agreed amount. She can file the execution for ejectment or for the recovery of the amount, to which the respondent will not raise any resistance in handing over the possession and in case of ejectment proceedings, he will not file any objection in the executing Court. It is further made clear that at the time of payment of amount of Rs. 6,000/- in case there is any interest thereon if recovered by the landlady, would be adjusted against the aforesaid balance amount of Rs. 12,000/-. He will have no objection to the withdrawal of the amount deposited in the Court and the State Bank of Patiala either by Jagan Nath, power of attorney of Smt. Shila Devi or by Smt. Shila Devi, statement of Shri Jagan Nath, general power of attorney of Smt. Shila Devi, landlady, has also been recorded, who stated that on receipt of the amount deposited in the bank and the Court, he will withdraw the other suits pending in the Court of the Sub Judge, 1st Class, Charkhi Dadr and they would be deemed to be treated as withdrawn. In case of non-payment of amount of Rs. 12,000/- which has been agreed to be paid in instalments besides the monthly rent of the Rs. 600/- the landlady will be entitled to get the aforesaid amount recovered by filing the execution petition for the recovery of the balance amount as well as for the arrears of rent. After the payment of the entire instalments amount, the tenant-respondent would keep on paying the monthly rent of Rs. 600/- (six hundred) as agreed today from 1.8.1986 onwards....."
19. In this process, the rent was to be deposited upto 1986. What has happened thereafter is that the rent continued to be deposited by the respondent and, admittedly, it was being withdrawn by the petitioner.
20. It is true that it is not a case where the deposit is u/s 6-A of the Act but deposit was being made and accepted. The petitioner was, thus, aware of the deposit of the earlier rent. Even in the written statement, there is a specific plea that the said rent had been deposited. The purpose of enacting such a provision is that if the tenant does not pay or tender the rent, he is liable to be evicted. When the rent has been deposited and the same was being accepted and the landlord is also being informed, in that event, commonsense cannot be left in cold storage. The landlord cannot be allowed to suddenly create a ground of eviction. The question of going into the validity of the facts of the present case, therefore, does not arise because, as mentioned above, it was not a deposit u/s 6-A. In that view of the matter, even the relevant precedents under the Rent Act applicable to Uttar Pradesh, therefore, also will not apply. The facts of the peculiar case clearly show that a petition for eviction was filed. The rent was deposited and the landlord was informed. The petitioner cannot take advantage of the fault of the Court in allowing the deposit to be made. The result is obvious that the ground of eviction in the special facts would not exist.
For these reasons, the revision petition being without merit must fail and is accordingly dismissed.
