T.P. Garg, J.@mdashThe Petitioner has challenged the judgment and decree dated 17.3.1979 passed by the Judge, Small Causes Court, Meerut, decreeing the suit for recovery of arrears of rent, ejectment and damages against the Petitioner and the judgment dated 14.9.1983, dismissing the revision against the said judgment by Respondent No. 1.
2. The Petitioner is a tenant. The landlord Respondents filed suit No. 377 of 1975 for recovery of arrears of rent, ejectment and damages against the Petitioner on the allegation that he failed to pay arrears of rent since 1.9.1973. A notice of demand and terminating his tenancy was sent on 25.2.1975 but it was refused by the Petitioner. He did not comply with the notice and thereby committed default. The Petitioner filed written statement and denied that he refused to accept the notice dated 25.2.1975. His main defence was that he had sent money order to the landlord in January 1974 but he refused the same on 10.1.1974. He again sent money order for Rs. 300 for rent for the month of September 1973 to August 1974 which was again refused by the landlord-Respondents on 20.9.1974. He, thereafter deposited the rent for the months of September 1973 to January 1975 in the Court of City Munsif, Meerut in Misc. case No. 359 of 1974 u/s 30(1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Court directed to deposit the amount. He again deposited the rent for the months of February 1975 to May 1975 in the same proceedings. The Petitioner has not committed any default in payment of arrears of rent.
3. The trial court took the view that as the notice sent to the landlord of the said application was not served, the application filed by the Petitioner u/s 30(1) of the Act was dismissed and the Petitioner was not entitled to the benefit of such deposit. He was served with a composite notice of demand and termination of tenancy by refusal on 28.2.1975 and as he did not pay the rent within one month from the date of service of the notice, he committed default in payment of arrears of rent. The suit was accordingly decreed. The view taken by the Judge, Small Causes Court has been upheld in revision.
4. The sole question arises as to whether the deposit made by the Petitioner u/s 30(1) of the Act is valid. The landlord-Respondents had filed suit for recovery of arrears of rent for the period due since September 1973. The notice is alleged to have been sent by the landlord on 25.2.1975 which is alleged to have been refused on 28.2.1975. The Petitioner had admittedly deposited the rent u/s 30(1) of the Act for the period September 1973 to January 1975 on 21st December, 1974. The amount was deposited prior to the date of service of the notice for the period claimed by the lanllord in his notice. The validity of the deposit has not been accepted for the reason that the Petitioner had taken steps but the landlords were not served with the notice and ultimately the application was rejected by the Court u/s 30 of the Act. It was urged that the Court had to see whether the deposit u/s 30 of the Act is valid. A tenant is entitled to deposit the rent u/s 30(1) of the Act provided he satisfies the condition mentioned therein In case the deposit has been made on the ground mentioned under Sub-section (1) or (2) of Section 30 of the Act, the deposit is treated as valid and on such deposit being made, such deposit shall be deemed as payment to the landlord under Sub-section (6) of Section 30 of the Act. The Court, where the amount is deposited u/s 30 of the Act, is not entitled to decide the question conclusively as to whether the tenant is entitled to deposit the amount as alleged by him. In case there is dispute as to the existence of the ground of deposit u/s 30 of the Act, it will be open to the parties to establish the existence of those facts in a regular suit or before a competent court where the question arises regarding validity of the deposit.
5. In Janki Prasad Misra v. Ranbir Singh Rathore 1965 ALJ 942, it was held that u/s 7C of U.P. (Temporary Control of Rent and Eviction) Act, 1947, the Munsif is not required to determine the rights and obligations of the landlord and tenant. All that he has to do on deposit of rent u/s 7C, is to issue a notice to the landlord Informing him that such deposit has been made. It was observed as follows:
A tenant may allege that the landlord has refused to accept any rent lawfully paid to him and may deposit it but the section itself does not require the Munsif to go into the question whether the landlord refuses to accept the rent lawfully or otherwise. This question is a question of fact to be determined in appropriate proceedings and if and when the question of refusal by the landlord of rent lawfully paid to him arises and it has been held that the deposit was made of any rent which the landlord had unlawfully refused to accept, the provisions of Sub-section (6) will apply.
6. In Shanti Devi v. Chandra Mukhi 1967 ALJ 788, wherein the Munsif had rejected the application and directed the applicant u/s 7C (2) to withdraw the amount deposited by her on a controversy arising whether the rent had been deposited in terms of Section 7C (2) and the benefit of Section 7C (2) was available, it was held that the order of Munsif can be examined in a regular suit and it was found that the Munsif s order was wrong and the deposit made could not be regarded by reason of the Munsif s order, as not made u/s 7C (2) of the Act. The provisions of Section 30 of the Act are similar to the provisions of Section 7C of the Act, referred to above. It is thus clear that the order of Munsif either accepting the deposit or rejecting the application for deposit is not final or conclusive and it can be examined as to whether the deposit made u/s 30 of the Act is valid.
7. The validity of the deposit u/s 30(1) of the Act depends upon the fact as to whether the landlord has refused to accept the rent offered to him by the tenant and in case it is found that he has refused to accept the rent, the tenant is entitled to deposit the rent u/s 30(1) of the Act.
8. The Respondent No. 2 has recorded categorical finding that the Petitioner had sent the money order but it was refused by the landlord on 1.1.1974. He again sent by money order rent for the period from September 1973 to August 1974, but the Plaintiff refused to accept the money order on 20.9.1974. On this finding, the deposit made by the Petitioner u/s 30(1) of the Act was valid.
9. The next question is as to what is the effect of non-service of the notice sent to the Respondents on the first deposit being made by the Petitioner u/s 30(1) of the Act. The courts below have recorded a finding that on deposit being made by the Petitioner u/s 30(1) of the Act on 21.12.1974, the notices were sent to the Respondents but the landlord was not served and as he was not served, the Munsif rejected the application u/s 30 of the Act. It is urged that the deposit cannot be treated as to have been made in accordance with Rule 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the Rules).
10. Learned counsel for the Respondents has placed reliance upon the decision in Pasupati Singh v. Ist Additional District Judge, Ballia and Ors. 1981 ALJ 318, wherein it was held that where an application u/s 30 of the Act is dismissed in default, the deposit being made u/s 30 of the Act cannot be treated as a valid deposit as after dismissal of the application, the amount is liable to be refunded to the Defendant-tenant.
11. In Mohd. Ilias v. Sri Ram 1972 ALJ 348, the tenant had made a deposit u/s 7C of Act No. 3 of 1947. The application was, however, dismissed in default. It was held that merely because the application was dismissed in default will not make the deposit as invalid. This case has been distinguished in Pasupati Singh''s case (supra) on the ground that there was no provision as provided under Sub-rule (4) of Rule 21 of the Rules which provides that in case the applicant falls to take steps as mentioned in the Rule, the application shall be rejected and the amount deposited shall be refunded to the applicant. Sub-section (4) of Section 7C provides that on any deposit being made under Sub-section (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 court in this behalf. There is a similar provision under Sub-section (4) of Section 30 of the Act. It is not necessary to refer the matter to a larger Bench, as in the present case there are certain facts which have not been controverted by the Respondents. The Petitioner has alleged that the notices to all the Respondents were sent by the Munsif in the proceedings u/s 30(1) of the Act fixing 3.5.1975 but on the back of the notice, the Respondents got a report collusively written by Mohd. Husain, son of Maksood that Mohd. Arils and Matin are in service and they have gone on service and Jalaluddin is minor and is student in the school and is not present. The Petitioner again filed process fee and notices on 12.5.1975 and again notices were issued to the Respondents fixing 18.10.1975 and again a report was submitted by the process server that Mohd. Matin, Mohd. Anis and Jalaluddin have gone somewhere in their relationship. The house is closed and it is not known when they would come back. The Petitioner again tiled process fee and notices on 22.10.1975 but the notices were not received back. He again filed process fee and notices on 1.11.1975 and notices were issued for 30.2.1976. Again it is alleged that a collusive report dated 20.11.1975 was submitted that Jalaluddin is minor and all others have gone in relationship. The Petitioner was taking steps to serve the Respondents but they were collusively avoiding to accept the notices. On the other hand, the landlord-Respondent filed suit No. 377 of 1975 for arrears of rent and ejectment on 1.4.1975 on the ground that the Petitioner failed to pay the arrears of rent for the period from September 1973 to January 1975. The Petitioner was not served with the notices. An ex parte decree was passed on 4.8.1975 and on 23rd October, 1975, the Respondents obtained possession under the ex parte decree. The Petitioner filed an application to set aside the ex parte decree on the ground that he was not served with the summons of the suit. The Court found the version of the Petitioner as correct and set aside the ex parte decree on 28.10.1976. The Petitioner filed an application for restitution of possession which was allowed and the Petitioner after protected litigation obtained possession of the tenanted accommodation on 16.7.1978. The Trial Court has not considered as to whether the Respondents were avoiding the service as alleged by the Petitioner in the proceedings u/s 30(1) of the Act. The Petitioner had filed a written statement and stated that he had deposited the amount u/s 30(1) of the Act prior to the filing of the suit for a period claimed by the Respondents in the suit. He was all the time ready to help the Respondents to withdraw the amount deposited under Election 30 of the Act. There is nothing to show that the Respondents expressed any willingness to withdraw the amount deposited u/s 30(1) of the Act.
12. In Kamleshwar Singh Srivastava v. IVth A.D.J., Lucknow and Ors. 1987 (1) ARC 1, their Lordships of the Supreme Court held that the Court must interpret statute as to protect and advance the object and purpose of the enactment while considering the provisions of Section 30(1) of the Act and made the following observations:
5. The scheme and structure and the policy discernible from the provisions of the Act, as discussed, unmistakably am at regulating the conditions of tenancy, rent and preventing eviction of tenants. The legislature has taken care to make special provisions protecting the interest of tenants from eviction while placing obligation on him to pay rent. The right of a tenant not to be evicted and the prohibition against a landlord from seeking eviction except upon specified grounds are well protected by the provisions of the Act and the tenant is afforded opportunity to pay arrears of rent even after filing of the suit, and, in some cases even after a decree of eviction is passed. The special provisions contained in Sections 20(4), 30, 39 and 40 indicate the legislative policy to safeguard the interest of a tenant, who he deposits rent in accordance with those provisions. The Court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretations of the provisions would defeat the legislative policy. The Courts must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of case.
13. In
It would be a travesty of justice if on some hyper-technical consideration, such an overzealous tenant can be denied the protection of the Rent Act.
14. Having regard to the facts of the present case, the Petitioner having tendered the rent to the Respondents by sending through money orders for the period claimed by them even before the service of the notice and the Petitioner having deposited the rent u/s 30(1) of the Act, he cannot be held to be the defaulter within the meaning of Clause (a) of Sub-section (2) of Section 20 of the Act.
In the result, the writ petition is allowed. The judgments dated 17.3.1979 and 14.9.1983, passed by Respondents 2 and 3 are hereby quashed. Parties to bear their own costs.
