1. Petitioners Mohammad Azim and Hasan Miyan, both sons of Late Puttan Khan are tenants of the shop owned by Sri Gopal Singh, son of Sri Gulab Singh (hereinafter referred to as "respondent-landlord") situate at Mohalla Kesari Singh, Pilibhit.
2. The petitioners are aggrieved by the judgment dated 07.08.2009, of Judge, Small Causes Court/ Civil Judge (J.D.), Pilibhit, whereby the trial court has decreed SCC Suit No.3 of 2007 filed by respondent landlord. The petitioners have been directed to vacate the shop in question and hand over vacant possession to the respondent landlord, besides paying rent/damages. The Revisional Court vide judgment and order dated 09.03.2011, passed by the Additional District Judge (Court No.2) Pilibhit, has dismissed petitioners' SCC Revision No. 15 of 2009 which order has also been assailed.
3. The facts giving rise to the present dispute in nutshell are, that, the shop in question as already said, was in the tenancy of petitioners along with their mother and sisters at the monthly rent of Rs.20/-. Initially, the shop in dispute was owned by Smt. Krishna Kumari, wife of Gulab Singh, mother of respondent landlord, who died on 09.10.2006. Thereafter the respondent landlord inherited ownership of the shop in question.
4. Similarly, it was initially in the tenancy of Puttan Khan (since deceased), father of two petitioners, and, after his death, tenancy rights were inherited by his legal heirs including the petitioners.
5. It is alleged that Sri Puttan Khan did not make payment of rent to erstwhile owner, (late) Smt. Krishna Kumari since 01.01.1979 whereafter several notices were given by Smt. Krishna Kumari, the earliest notice being dated 07.10.1982 sent by registered post. The rent yet was not paid. Another notice was issued by registered post on 28.02.1983 which was served on Puttan Khan on 02.03.1983. Subsequently, also notices were sent on 16.02.1998, 02.03.1998 and 21.03.1998 but returned by Postman with endorsement "no-service". Subsequently a notice dated 17.04.1998, sent to (late) Puttan Khan which he refused to accept. Thus (late) Puttan Khan did not make any payment of rent during his life time to Smt. Krishna Kumar, owner, during her lifetime. The tenants, it is alleged, were liable to pay a total rent of Rs. 6860/- for the period 01.01.1979 to 31.07.2007.
6. The respondent-landlord, after death of his mother, sent another notice on 4.8.2007, demanding entire rent of Rs. 6860/- for the period aforesaid from the petitioner tenants, within one month. The notice remained uncomplied though it was served upon the petitioner tenants on 07.08.2007. Their tenancy thus stood terminated after expiry of notice period. Thereafter the respondent landlord filed SCC Suit No. 3 of 2007, seeking eviction of petitioner tenants from the shop in question, recovery of rent of Rs. 720/- for the period 07.09.2004 to 06.09.2007, (the period within limitation from the date of filing suit), damages and costs.
7. The suit was contested by petitioner tenants stating that the then landlord herself was not accepting rent from (late) Puttan Khan, tenant of shop in dispute and, therefore, vide money order dated 19.12.1979, one year's rent i.e., from 01.01.1979 to 31.12.1979 was remitted but it was returned to the sender with the endorsement that the sendee had refused to accept. Thereafter again (late) Puttan Khan made an attempt for payment of rent to Smt. Krishna Kumari but having failed therein, resorted to deposit rent under Section 30(1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as the "Act, 1972"). He had filed application under Section 30(1), being R.C. Case No. 1 of 1980, Puttan Khan Vs. Smt. Krishna Kumari in the Court of Munsif, Pilibhit. The application was allowed and he was continuously depositing rent in Court.
8. After death of Smt. Krishna Kumari, again the petitioners-tenants attempted to pay rent to landlord but on refusal again, they made deposit in Court under Seciton 30(1) of Act 1972 vide RC Case No. 22 of 2007, Afsar Jahan Vs. Gopal Singh. It is also pleaded that after filing of suit for eviction by the landlord, further rent would be deposited in the trial court. The landlord had due notice of deposit of entire rent in the court under Section 30(1) and was at liberty to withdraw the same but he/she had chosen not to do so. There is no fault on the part of tenants and, therefore, the suit is liable to be dismissed.
9. The Trial Court decreed the suit vide judgment dated 07.08.2009 observing that (late) Puttan Khan had deposited rent in RC Case No. 1 of 1980 for the period from December 1979 onwards but nothing was placed on record before the Trial Court to show that any intimation of such deposit was ever given to landlord. Therefore, the aforesaid deposit is not a valid deposit for the purpose of giving benefit under Section 20(4) of Act 1972. He has also observed that though Puttan Khan died on 12.11.2003 but in RC Case No. 1 of 1980, rent from 01.01.2004 to 31.12.2005 had been deposited by Advocate on behalf of Puttan Khan. This deposit also cannot be treated a valid deposit. He has also declined to take into account deposit of rent made by petitioners in RC Case No. 22 of 2007 for the period 01.01.2006 to 30.09.2007 on the ground that in the application filed under Section 30(1) of Act 1972 before the Court, the tenant applicants had not stated anything about remission of rent by money order or otherwise to the landlord and his refusal and, therefore, the said deposit also would not qualify, being not a valid deposit under Section 30(1) and cannot be given due credit for the purpose of Section 20(4) of Act 1972. The petitioner tenants have also been discredited on the ground that here also information to landlord regarding deposit is not shown to have been given at any point of time. The Trial Court, therefore, held petitioner tenants guilty of committing default in payment of rent for more than 4 months and, therefore, decreed the suit by directing for eviction and payment of rent and damages as claimed in the suit.
10. The Revisional Court has confirmed the aforesaid findings of Trial Court by dismissing petitioners' revision.
11. Sri Salil Kumar Rai, learned counsel for the petitioners vehemently contended that the landlord at every point of time was well informed about the deposits made under Section 30(1). The courts below in refusing to give due credit to the petitioners about such deposits have clearly erred in law. He also raised certain questions on the findings regarding deposits made by petitioners and their ancestors from time to time and the observations of courts below. In these circumstances, this court also called for record of court below in R.C. No. 1 of 1980 and 22 of 2007, i.e., in respect of deposit made by petitioners-tenants under Section 30(1) of Act 1972.
12. One thing is not disputed is that rent directly was not paid to or received by landlord from January 1979 and onwards. At that time, Late Puttan Khan was alive. He had made deposits under Section 30(1) and for subsequent period, i.e., upto 31.12.2005.
13. Let us first examine, whether in making such deposits, there is compliance of requirement of Section 30(1).
14. The record of RCC No. 1of 1980 received from the court of Munsif, Pilibhit shows that application of landlord was registered on 05.01.1980 through the applicant Puttan Khan's, Advocate Rajesh Chandra. The court issued notice to respondent-landlord, Smt. Krishna Kumari on 22.01.1980. The service of notice was found sufficient upon respondent landlord by court's order dated 07.03.1980. Thereafter, the order dated 22.03.1980 passed on the aforesaid application reads as under:
"Application B 4 has been taken for hearing. O.P. is not present after sufficient service. Heard. Application B 4 is allowed and the applicant is permitted to deposit the rent at his own risk." (emphasis added)
15. Copy of summon sent to landlord, Smt. Krishna Kumari is also on record. It contains endorsement of receipt of notice, signed by Gulab Singh, dated 28.01.1980. There is an endorsement of Process Server that at the residence of Smt. Krishna Kumari when she was called for service of summon, her husband Gulab Singh came out and received summon stating that Smt. Krishna Kumari is a "Pardanaseen Lady" and is present in the house. Sri Puttan Khan admittedly died on 12.11.2003. An application was filed in RCC No. 1 of 1980 by petitioners and others requesting for substitution. The said application is dated 24.09.2004 and registered as Misc. Case No. 175 of 2004. However, before that there is a copy of tender for payment of rent dated 17.08.2004 signed by one Ishrat Jahan though she is neither the applicant seeking substitution in the application dated 24.09.2004, i.e., 175 of 2004, in RCC No. 1/1980, nor there is anything else to show that she was validly authorised to make such payment by Sri Puttan Khan. Further, a Vakalatnama signed by Rajesh Sharma, Advocate was appended to the substitution application dated 24.09.2004.
16. There is an order sheet commenced from 25.09.2004, appears to have been prepared after receipt of substitution application, aforesaid, which shows that the said application was ultimately rejected for want of prosecution on 22.02.2008 with the following order:
"okn izLrqr gqvkA iqdkj djk;h x;hA ckj&ckj fofHkUu varjkyks ij iqdkj djk;s tkus ij i{kdkj vuqifLFkr gSA bl le; 3-00 ih-,e- gks pqdk gS vc vkSj bUrstkj dh vko';drk ugha gSA vr% izLrqr okn i{kdkjksa dh vuqifLFkfr esa [kkfjt fd;k tkrk gSA i=koyh ckn vko';d dk;Zokgh nkf[ky nQ~rj gksA** "The case was put up. Parties called. Despite several calls at different intervals, none present. It is already 3.00 PM, no need for further wait.
Hence, in absence of parties, case is dismissed. File be consigned to office after necessary action."
(English translation by the Court)
17. It is thus clear from the aforesaid record that there could not have been any valid deposit in RCC No. 1 of 1980 after the death of Puttan Khan on 12.11.2003.
18. Thereafter, another application was filed by petitioners and others, registered as RCC No. 22 of 2007, in the court of Civil Judge (Junior Division), Pilibhit. It mentions that rent upto December 2005 has already been paid by applicants to landlord. For subsequent rent a money order was sent on 21.08.2007 but it was not accepted by Sri Gopal Singh. Hence, the rent is to be deposited under Section 30(1).
19. This application is dated 14.09.2007. This application was contested by Sri Gopal Singh by filing his objection dated 02.07.2008, stating that he has never refused any rent and on account of default the tenancy of applicants has been terminated by notice dated 04.08.2007. On the aforesaid application, the court passed, ultimately, an order on 10.12.2008 permitting applicants' tenants to deposit rent at their own in risk in the court till the landlord conveys consent for accepting rent. A photocopy of money order is also on record of RCC No. 22 of 2007, showing that rent was tendered to landlord for the period 01.01.2006 to 31.08.2007. After the court permitted tenants to deposit, it was actually deposited in the court.
20. In the above facts and circumstances, even if what is argued by Sri Salil Kumar Rai, learned counsel for the petitioners regarding deposit made under Section 30(1) of Act, 1972 is taken to be correct, I have no hesitation in observing that there is no valid deposit at all after the death of Sri Puttan Khan on 12.11.2003 till December, 2005. For the purpose of giving benefit of Section 20(4), unless a valid payment has been made, no advantage can be claimed by tenants. It is well established principle and I may refer only a few of the authorities to fortify what I have said hereat.
21. A Division Bench of this Court in Smt. Mridula Dayal Vs. VIth Additional District Judge, Allahabad and others, 1986(2) ARC 132 has held that fiction under sub-section (6) of Section 30 with respect to valid deposit would not come into picture where deposit has been made by a person in circumstances not covered by sub-section 1 of Section 30. Having said so in para 10 of the judgment the Court said:
"If, on the other hand, the deposit has either not been made in the circumstances contemplated by sub-section (1) of Section 30 or not in the premised manner, it is not a deposit under sub-section (1) of Section 30 at all and no question of taking such deposits into consideration while considering the question whether or not the person claiming to be a tenant is entitled to be relieved of his liability as laid down in Section 20(4) of the Act, would arise."
22. Again it has reiterated in para 11 of the judgement:
". . . . . we have no hesitation in saying that a deposit made by a tenant in circumstances not contemplated under sub-section (1) of Section 30, cannot be deemed to be payment made to the landlord as provided by sub-section (6) of Section 30, consequently it cannot be taken advantage of for claiming benefit of sub-section (4) of Section 20 of the Act."
23. Then this issue was considered lately by Apex Court, in Jagat Prasad Vs. District Judge, Kanpur and others, 1995(2) ARC 360. It is a very short judgment and the Court said:
"Law prescribed the procedure as to the deposit under U.P. Urban Buildings (Regulation of Letting, Rent Eviction) Act, 1972. Such a procedure if complied with alone will be a valid defence to a petition for eviction on the ground of arrears of rent." (emphasis added)
24. There is however a discordant note in a subsequent judgment of this Court in Ch. Badri Dass Vs. The Additional District Judge, Dehradun and others, 2000(4) ALR 128 wherein the Court relied on the decision in Mahendra Nath Tandon Vs. VIth Additional District Judge, Kanpur Nagar and others, 1997(30) ALR 22 held that the tenant is entitled to benefit of deposit made by him under Section 30(1) of the Act even though such deposit may not valid in terms of Section 30(1) of the Act as Section 20(4) of the Act provides that the tenant can deposit the amount after deducting the amount already deposited by him under sub-section (1) of Section 30 of the Act.
25. However, subsequent decisions of this Court, as also of Apex Court, show that binding authority on this Court in respect to this aspect is that "a deposit not made in accordance with procedure prescribed in Section 30 will not attract benefit under Section 20(4) of Act, 1972".
26. This issue was considered by a Full Bench in G. Singh Vs. A.D.J, 2000(1) ARC 653 and it held that a deposit continued to be made under Section 30 after receipt of notice of demand upon the landlord, is not a legal deposit and shall not be treated to be an amount paid to landlord. Thereafter this Court in Writ Petition No. 19656 of 2003 (Shiv Raj Singh Vs. Sri Jitendra Babu and others), decided on 21.05.2003 following the above Full Bench judgment, as also the Apex Court judgment in E. Palanisamy Vs. Palanisamy (D) by Lrs. and Ors. AIR 2003 SC 153, held that unless the deposit under Section 30 is strictly in compliance of terms of Section 30, it would not confer any benefit upon tenants.
27. This view was reiterated by Hon'ble S.U. Khan, J. in Chameli Devi Vs. VIth Addl. District Judge, Pilibhit and another, 2004(54) ALR 57.
28. A similar issue came up before Apex Court in a matter arising out of Delhi Rent Control Act, 1951 in Atma Ram Vs. Shakuntala Rani, 2005(61) ALR 450. The Court therein referred to an earlier decision of itself in Jagat Prasad Vs. District Judge, Kanpur and others (supra) which was a matter arising out of Rent Act of State of U.P.; and, held, that if the rent is not deposited strictly in accordance with procedure prescribed in statute, no benefit can be allowed to tenant. The Court said:
"17. . . . . There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default." (emphasis added)
29. In Noor Mohammad and another Vs. XIVth Additional District and Sessions Judge, Kanpur Nagar and others, 2006(63) ALR 244 this Court took the view that after notice of demand from landlord, as also after filing the suit for eviction, and service of summons upon tenant, he (tenant) is not entitled to deposit rent else where except in the Court in which the suit was filed. The Court followed Division Bench decision in Haider Abbas Vs. Additional District Judge, 2006(62) ALR 552.
30. In Dharam Prakash Gupta Vs. Addl. District Judge, Moradabad and others, 2007(1) ARC 435 this Court held that once the tenant who moved application for deposit of rent in court has died, his Advocate ceased to have any authority to continue to deposit rent in the court though his heirs would automatically become tenant by operation of law and could have submitted tender for deposit.
31. In the present case it is not shown that any tender was submitted for making payment of rent, after the death of Sri Puttan Khan on 12.11.2003, by the legal heirs to whom the tenancy rights were created. The substitution application filed by legal heirs was not pressed and ultimately stood rejected by concerned court. Unless valid deposit is made under Section 30(1), no benefit under Section 20(4) can be claimed is the view reiterated in Mahendra Kaur Vs. VIth Additional District Judge, Pilibhit and another, 2007(2) ARC 783.
32. In the present case, the suit for eviction of petitioners-tenants was filed on 07/11.09.2007 and after service of summons upon petitioners-tenants they filed written statement wherein it was stated in para 16 that subsequent rent shall be paid in the Trial Court, having got information thereof. With respect to subsequent period, therefore, i.e., from 01.01.2006 and onwards petitioners' deposit under Section 30(1) may not be said to be erroneous but for earlier period, after the death of Puttan Khan, I am satisfied that there is no valid deposit which may entitle petitioners to claim any benefit under Section 20(4) of Act, 1972.
33. Besides above, with respect to payment made in RCC No. 1 of 1980 regarding initial deposit, for the period of 01.01.1979 to 31.12.1979, information to landlord was given and this is evident from original record. But, so far as subsequent period is concerned, for which payments were deposited from time to time, it is evident from record that despite notice issued by erstwhile landlord demanding rent, and the service also accepted, yet payment continuously made in the court instead of tendering rent to landlord.
34. Once the landlord has specifically given notice demanding rent, any deposit of rent under Section 30 thereafter, without first offering the same to landlord, cannot be held to be a valid deposit for the purpose of attracting Section 20(4) so as to be given benefit to petitioners-tenants.
35. In the totality of circumstances and discussion made above, I am of the view that courts below have not erred in law in holding petitioners guilty of non-compliance of Section 20(4) so as to disentitle for its benefit. The judgements impugned in the writ petition, therefore, in so far as the decree of eviction in favour of landlord against petitioners-tenants have been granted, cannot be faulted legally or otherwise.
36. The writ petition lacks merit. Dismissed. No costs.
Order Date :-06.11.2012 AK