The writ petition and the civil revision are between the same parties arising out of same dispute, hence, have been heard together and are being decided by this common order.
SCC Suit No. 12 of 2009 was filed by the landlord-Subodh Kumar Agarwal seeking a decree of ejectment and arrears of rent from 01.02.2008 to 05.01.2009 amounting to Rs.1,24,318.50/- along with mesne profits and future mesne profits. Suit was filed on the allegation that premises no. 9/471, of which he is exclusive landlord, was let out to M/s. Tullu Motors Pvt. Ltd., a company constituted under the Companies Act on a monthly rent of Rs.11,133/-. It was further alleged that since the rent of the accommodation was more than Rs.2000/-, hence, provisions of U.P. Act 13 of 1972 (for short the Act) were not applicable and the tenancy was at will terminable at any time, after notice under Section 106 of the Transfer of Property Act. It was further pleaded that tenant was in arrears of rent from February 2008 and in spite of repeated demands and requests, the same was not paid. It was also pleaded that tenancy was terminated vide notice dated 26.08.2008, which was sent through registered post and was returned back with the endorsement of 'Refusal' and even after expiry of 30 days of the notice period, neither the outstanding arrears was paid nor the accommodation was vacated. The suit was decreed vide ex parte judgement and order dated 05.11.2009, inasmuch as the tenant did not put in appearance. Thereafter, an application under Order IX Rule 13 C.P.C. was moved by the tenant for recall of the ex parte decree. Judge, Small Causes Court vide order dated 25.10.2011 allowed the application filed by the tenant and set aside the ex parte decree. Aggrieved by the same, the landlord has filed Civil Revision No. 519 of 2011.
Writ Petition No. 64482 of 2012 has been filed by the tenant-M/s. Tullu Motors Pvt. Ltd. challenging the order dated 23.04.2011 passed by Civil Judge (Junior Division), Varansi in Misc. Case no. 129 of 2008 rejecting the application under Section 30 (1) of the Act and the order dated 16.08.2012 passed by Additional District Judge, court No. 5, Varansi rejecting the revision challenging the order of the Civil Judge (Junior Division).
After the landlord issued notice under Section 106 of the Transfer of Property Act, the tenant made an application before Civil Judge (Junior Division) under Section 30 (1) of the Act on 17.09.2008 for depositing the rent on the allegation that the rent was being wrongly and illegally refused by the landlord and the same may be deposited in the court at his own risk.
A notice was issued to the landlord, who instead of applying for withdrawal, filed objection alleging that since the rent of the disputed accommodation was more than Rs.2000/-, as such, the provisions of the Act were not applicable and the application under Section 30 (1) was not maintainable and liable to be rejected.
Civil Judge (Junior Division) vide order dated 23.04.2011 dismissed the application on the ground that court has no jurisdiction in the matter, inasmuch the rent being more than Rs.2000/-, the building was outside the purview of the Act. The tenant went up in revision before the District Judge, which was also dismissed vide order dated 16.08.2012.
The two orders have been challenged by the tenant by filing Writ Petition No. 64482 of 2012.
I have heard Shri Siddharth assisted by Mrs. Vatsala for the tenant-Tullu Motors Pvt. Ltd. and Shri Ravi Kiran Jain, learned Senior Advocate assisted by Ms. Swati Agarwal for landlord-Subodh Kumar Agarwal.
With the consent of the learned counsel for the parties, the writ petition and the civil revision, both are being disposed of finally at the admission stage.
Shri Siddharth submitted that the order passed by the Civil Judge rejecting the application under Section 30 (1) of the Act on an objection filed by the landlord is illegal, since there is no provision under said Section requiring to call for an objection from the landlord and adjudicate the question, whether the person making the deposit is tenant within the meaning of the Act or not, or even the question that rate of monthly rent payable excludes the application of the Act. It is further submitted that in view of provisions of Section 30 (4) of the Act, the landlord is only entitled to a notice to withdraw the amount deposited by the tenant and there is no provision for any objection and adjudication either about the eligibility of the tenant to deposit the rent or its quantum.
Shri Siddharth in support of his contention has relied upon the pronouncement of a learned Single Judge in the case of Girdhari Lal Mehta Vs. The District Judge, Varansi & Ors., 1984 (1) ARC 126.
The issue involved for adjudication in the abovementioned case was whether the jurisdiction under sub-section (1) could be exercised only after deciding the dispute raised by the petitioner therein that opposite party was not his tenant. The arguments therein were based on the provisions of U.P. Act no. II of 1947 which now stands repealed and substituted by U.P. Act No. XIII of 1972, and judicial interpretation of the provisions of the old Act. Refuting the contention, learned Single Judge while dismissing the writ petition held as under.
"3. None of the submissions appear to have any substance. There is no provision in Section 30 which permits the landlord to file objection requiring Munsif to decide and adjudicate the dispute about the claim whether person who was seeking to make deposit was a tenant or not. The only notice contemplated is under Sub-section (4) of Section 30 permitting landlord to withdraw amount deposited. This notice is subsequent to deposit being made under Sub-section (1). In other words it does not contemplate any adjudication or decision before any deposit is accepted from person claiming to be tenant. Moreover Sub-section (1) of Section 30 is positive departure from Rule 6 of Act III of 1947. It now permits a person claiming to be tenant to deposit the rent.
4. From widening of the section it is apparent that the Legislature being conscious of the difficulty that arose under earlier Act deliberately extended the benefit even to those persons who claimed to be tenant so that the landlord by his own conduct of refusal to accept the rent may not create a situation by not permitting the claimant to deposit in court and subsequently even if the person is found to be tenant to turn to his advantage by claiming default in payment for this period. It is true that before accepting the deposit the Munsif who is conferred with the jurisdiction under Sub-section (3) of Section 30 to accept the claim has to be prima facie satisfied but the satisfaction is only of the fact that the person who made application was a person claiming to be a tenant of the building. The law does not require anything further. At least it does not contemplate adjudication. And how is the order prejudiced to the landlord. If the person claiming to be tenant deposits it but ultimately it is found that he is not the tenant then he does not become so by order under this section. Benefit of Sub-Secion (6) shall be available only to a person who is found to be tenant. An order which is passed without hearing or ever notice obviously cannot operate as res judicata. In Haji Abdul Karim's case this aspect has been brought elaborately. Distinction between nature of jurisdiction exercised under Secion 7E of old Act and in Rule 6 was also pointed out. It was held that no assistance could be derived from Raj Kumar's case to establish that order under Section 30 operated as res judicata. Nor can the order be said to suffer from infirmity of not being a reasoned order. By very nature of jurisdiction exercised the order is not required to be detailed like a judgment. It must exhibit application of mind. To that, there appears to be no doubt."
At this stage, it may be relevant to refer to the provisions of Section 30 of the Act, which reads as under.
"30. Deposit of rent in Court in certain circumstances.- (1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.
(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise 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 the rent that may subsequently become due in respect of such building.
(3) The deposit referred to in sub-section (1), or sub-section (2) shall be made in the Court of the Munsif having jurisdiction.
(4) On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the Court in that behalf.
(5) On a deposit being made under sub-section (2), the Court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent Court or by a settlement between the parties and the same shall be payable to such person.
(6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2)."
Procedure for making deposit of rent under the aforesaid provisions are prescribed in Rule 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972, which reads as under.
"21. Deposit of rent (Section 30).-(1) Any person desirous of depositing rent under Section 30 shall apply in Form E. The application shall be accompanied by as many copies thereof as there are opposite-parties, and also the process fee and notices in Form F.
(2) The deposit shall be made under the Head "P-Deposits and Advances-II-Deposits not bearing interest-C-Other Deposit Accounts-(b) Departmental and Judicial Deposits-Civil Deposits-Civil Court's Deposits".
(3) On such deposit being made, the Court shall cause notice of the deposit to be served on the opposite-party along with a copy of the application.
(4) Where a notice of the deposit is returned unserved, the Court shall fix a date on or before which the applicant shall deposit fresh process fee and notice in Form F. If within the time so allowed or within such extended time, as the Court may grant, the applicant fails to take steps as above, the application shall be rejected and the amount deposited shall be refunded to the applicant.
(5) In the case of continuance of deposit of rent for any subsequent period, fresh application shall not be necessary. But process fee and the notice in Form F shall accompany every deposit."
Form 'E' referred to prescribed under the Rule for making a deposit in the Court contains the following in the beginning.
"The applicant prays for permission to deposit the rent of the building as per particulars furnished below:"
This contemplates a permission of the Court for making the deposit. Sub-Section (4) & (5) of Section 30 read with Sub-Rule 3 and 4 of Rule 21 provide for notice to be issued to the landlord. In case of deposit under sub-section (1), on being noticed, the same can be withdrawn by the landlord on an application made in that behalf. This again contemplates a permission by the Court to permit withdrawal of the deposit.
Sub-Rule (4) of Rule 21 provides that if notice issued to the landlord is returned unserved, the tenant shall deposit fresh process fee and notice in Form 'F'. It further provides that on tenant's failure to take steps, the application shall be rejected. These statutory provisions, therefore, definitely provide for allowing of the application as also its rejection. Sub-Rule (3) prescribes that deposit under Section (1) & (2) can be made in the Court of Munsif having jurisdiction.
Thus, before issuing notice to the landlord, the Munsif is required to satisfy himself prima facie of the ground on which the rent was sought to be deposited in the Court, i.e., about the existence of jurisdictional facts. If after issue of the notice to the landlord, he files an objection, then the Munsif is under an obligation to decide the questions relating to jurisdictional facts, although the order passed will not operate as res judicata and it will always be open to the Court, trying a regular suit for eviction, to examine the circumstances in which the deposits were made under Section 30 and whether such deposits were at all validly made and shall enure to any benefit of the tenant extending him the protection, prescribed under the provisions of the Act. But, in any case, once the building is exempted from the operation of the Act, none of the provisions of the Act including Section 30 would stand attracted.
In the present case, objection was filed by the landlord, in respect of the jurisdiction of the said court to permit deposit of the rent by the tenant under Section 30 (1) of the Act, on the ground that the building in question was outside the purview of the Act.
The issue was definitely one relating to the jurisdiction of the court to permit deposit of rent by the tenant and he was under an obligation to consider and decide the same. The case of Girdhari Lal Mehta (supra) relied upon by the learned counsel for the tenant, does not lay down the proposition that permission is to be granted mechanically merely on making an application and no objection can be raised in respect of the power and jurisdiction of the court to permit deposit of the rent.
The case law relied upon is clearly distinguishable on facts and has no application.
In view of the aforesaid analysis of the relevant provisions, the argument advanced by Shri Siddharth in support of the writ petition that the order passed by Civil Judge (Junior Division) and the revisional order are illegal, is without any force.
Civil Judge (Junior Division) was well within his rights to have decided the objection filed by the landlord and appears to have committed no illegality. Even on merits, the order passed by him cannot be faulted with. Admittedly, the rate of rent was above Rs.2000/- and, thus, in view of Section 2 (g) of the Act, the building in question was outside the purview of the Act, and the application under Section 30 (1) of the Act moved by the tenant was not maintainable, and has rightly been dismissed.
The next issue which arises for consideration is whether deposit made under Section 30 (1) of the Act, in a case where the building is outside the purview of the Act and is exempted from the provisions of the Act, can enure to the benefit of the tenant and was liable to be adjusted towards compliance of Section 17 (1) of the Provincial Small Cause Court Act (hereinafter referred to as PSCC Act).
The dispute in the connected Civil Revision revolves around this issue.
Admitted facts as they cull out from the pleadings of the parties are that a total sum of Rs.3,38,148/- was deposited by the tenant under Section 30 (1) of the Act before 23.04.2011 when the application was dismissed by the Civil Judge (Junior Division). The said amount was deposited in the Bank during the pendency of the application after the vouchers presented by him on various dates, were passed by the court and the amount was lying in deposit with the Bank. SCC Suit was filed on 24.03.2009 claiming arrears of rent from 01.02.2008 to 05.01.2009, total amounting to Rs.1,24,318/-, calculated @ Rs.11,133/- per month. Suit was decreed ex parte on 05.11.2009 for ejectment and Rs.1,24,318/- for arrears of rent for the period 04.02.2008 to 05.01.2009, Rs.33,000/- from 06.01.2009 to date of filing of the suit and damages @Rs.12000/- per month from the date of judgment till the delivery of possession. Application under Order IX Rule 13 was moved on 07.05.2010. The application, admittedly, was not accompanied with the amount due under the decree nor any prior permission for furnishing security of the decreetal amount was made.
Section 17 of PSCC Act reads as under.
"17. Application of the Code of Civil Procedure.- (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by section 145 of the Code of Civil Procedure, 1908 (5 of 1908)."
The aforesaid provision has been subject matter of interpretation by the Hon'ble Apex Court in the case of Kedarnath Vs. Mohan Lal Kesarwani & Ors., 2002 (1) ARC 186. In paragraph 9 and 10 of the report, it has been observed as under.
"9. A bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court.
10. In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the Court of the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the Court for furnishing such security for the performance of the decree as the Court may have directed. The application for setting aside the decree was therefore, in competent. It could not have been entertained and allowed."
In the present case also, admittedly, the application under Order IX Rule 13 C.P.C. was neither accompanied by deposit of decreetal amount nor there was any application much less any prior application seeking leave of the court for furnishing security for performance of decree.
The amount lying in deposit made under Section 30 (1) of the Act, no doubt, was more than the decreetal amount. However, the question is whether the amount lying in deposit shall enure to the benefit of the tenant and was liable to be adjusted towards the deposit to be made under proviso to Section 17 of the PSCC Act.
The object of Legislature in enacting the proviso of Section 17 (1) of the PSCC Act appears to discourage such unscrupulous tenant, against whom rent is due and who avoid appearance in the suit filed by the landlord for ejectment and taking advantage of their self-created situation, later on move an application for setting aside the ex parte decree resulting in further harassment to the landlord. The purpose of the proviso is to safeguard the interest of the landlord and to save him from further harassment and to secure payment of rent due to him.
No doubt, the tenant has been given liberty to move an application for recall of the ex parte decree, but the proviso enjoins upon him as a condition precedent to deposit the decreetal amount or make prior application seeking permission of the court to give security of the amount. A further purpose appears to be that in the event, the recall application is dismissed, the liability under the decree may be satisfied from either the deposit or from the security furnished by the tenant-judgment debtor.
In view of the aforesaid purpose of the Legislature in enacting the proviso, the litmus test for considering the question would be whether amount lying in deposit under Section 30 (1) of the Act will be available to the landlord for satisfaction of the decree or in other words, he shall be entitled to withdraw the deposit made.
In the facts of a given case, like the one in hand, where the provisions of the Act are not applicable and after the application under Section 30 (1) of the Act has been dismissed on the question of jurisdiction of the Court to permit such deposit, obviously the amount deposited cannot be withdrawn by the landlord, nor the court where it has been deposited can permit withdrawal or pay it to the landlord.
In the circumstances, the only course open is that the amount so deposited may be withdrawn by the tenant and/or refunded to him.
The court where the said amount has been deposited having no jurisdiction, the said deposit also cannot be said to be in custody of the court nor open to the landlord to withdraw the same and, thus, cannot be said to be available to landlord.
This position becomes further clear from the provisions of sub-sections (4) of Section 30 of the Act, which provides for a notice to the landlord and withdrawal of the deposit on an application made by him and sub-section (6), which provides that deposit made under Section 30 (1) shall be deemed that person depositing it has paid to the person in whose favour the deposit has been made. This deeming clause shall only come in operation if the amount deposited by the tenant is available to the landlord for withdrawal or can be paid to him.
Applying the above litmus test to the facts of the case in hand, the application under Section 30 (1) of the Act having been dismissed for want of jurisdiction, the landlord is not legally entitled to withdraw the same nor the court where the amount has been deposited can direct payment of the same to the landlord and, thus, the same is not available to the landlord. It is immaterial whether the landlord has made any application for withdrawing the amount or not, but the issue turns around the fact that whether the landlord is entitled to withdraw the same. Since the deposit made by the tenant cannot be paid to or withdrawn by the landlord, the same cannot enure to the benefit of the tenant and not liable to be adjusted towards compliance of Section 17 (1) of the PSCC Act.
Judge Small Causes Court relying upon the judgment of a learned Single Judge in the case of Shiv Shanker Singh Vs. IV Additional District Judge, Kanpur Nagar & Ors., 1997 (2) AWC 1201 held that the deposit under Section 30 (1) of the Act was liable to be adjusted towards compliance of Section 17 (1) of the PSCC Act.
Reliance placed by the Judge Small Causes on the aforesaid case law is totally misplaced, inasmuch as in the said case, the building was covered by the provisions of Rent Control Act and was not exempted from its operation and, therefore, learned Single Judge held that if the ex parte decree is not set aside, the landlord is entitled to withdraw the amount made under Section 30 (1) of the Act to the satisfaction of the decree and, as such, the said deposit was liable to be adjusted in compliance of Section 17 (1) of the PSCC Act.
The situation is entirely different in the case in hand. The landlord since cannot withdraw the amount deposited, the same is not liable to be adjusted towards the compliance of the proviso to Section 17 (1) of the PSCC Act. Since the proviso to Section 17 (1) of the PSCC Act is mandatory and the application under Order IX Rule 13 CPC for recall of the ex parte decree was made without complying the proviso to Section 17 (1) of the PSCC Act, the application was not maintainable and the Judge Small Causes Court has committed illegality in allowing the same and the judgment is not liable to be sustained.
Since the application under Order IX Rule 13 CPC is liable to be dismissed, for non-compliance of mandatory provisions, there is hardly any reason to enter into the issue of service of summons of the suit on the tenant, or his non-appearance for the said reason.
In view of the foregoing facts and discussions, the writ petition filed by the tenant is liable to be dismissed and is hereby dismissed.
Civil revision filed by the landlord stands allowed. Impugned judgment and order dated 25.10.2011 passed by Judge Small Causes Court/Additional District Judge, Varansi, Court No. 5 is hereby set aside. The application under Order IX Rule 13 CPC stands dismissed.
However, in the facts and circumstances of the case, there shall be no order as to costs.
10.03.2014 VKS