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AMJAD HUSAIN ANSARI versus IST ADDITIONAL JUDGE, SMALL CAUSES COURT AND OTHERS

High Court of Judicature at Allahabad

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Amjad Husain Ansari v. Ist Additional Judge, Small Causes Court And Others - WRIT - A No. 19540 of 2004 [2005] RD-AH 5096 (28 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

RESERVED  ON 16.09.2005

DELIVERED ON 28.10.2005

Civil Misc. Writ Petition No. 19540  of 2004

Amjad Hussain Ansari.......................................................Petitioner

Versus

Ist, Additional Judge, Small Causes Court,

Kanpur Nagar & others...............................................Respondents

......................

Hon'ble Ashok Bhushan, J.

Heard Sri Yatindra, learned counsel for the petitioner and Sri Triloki Nath appearing for the landlord respondent no. 3.  Counter and rejoinder affidavits have been exchanged between the parties.  With the consent of the parties the writ petition is being finally disposed of.

By this writ petition the petitioner-tenant has prayed for quashing the judgement and order dated 25.10.2000 passed by Judge Small Causes Court, decreeing the suit of the landlord respondent directing eviction and the judgement and order dated 30.4.2004 passed by 1st Additional District Judge, Kanpur Nagar dismissing the appeal filed by the petitioner.

Brief facts  necessary for deciding the writ petition are;______

The petitioner is tenant of one room accommodation of House No. 122/706 Shahstri Nagar,  Kanpur Nagar at the rate of  Rs .100/- per month and was paying the rent to house owner Deep Chandra.  Deep Chandra  sold the house in question to respondent no. 3 on 30th June, 1988 informing  the petitioner that the house has been transferred to Harish Motwani resident of House No. 108/144 Shishamau, Kanpur Nagar.  In 1990 the respondent no. 3 refused to receive the rent.  On 7th October, 1991 a notice was issued by the respondent no. 1 ;asking the petitioner to vacate the premises and give possession to landlord failing which  proceedings under Section 21 (1) and (b)  of the U.P. Urban Building ( Regulation of Letting Rent and Eviction) Act, 1972  (hereinafter referred to as "the Act, 1972") shall be initiated.  After refusal of the landlord to receive the rent, petitioner filed an application under Section 30(1) of the Act 1972 in the court of Civil Judge (Junior Division ), Kanpur Nagar on which case No. 23/70 of 1994 was registered.  With the  permission of the court the petitioner deposited the rent  in the aforesaid case under Section30 (1)  of the Act, 1972.  The landlord appeared in case No. 23/70 of 1994.  Landlord  in  his affidavit stated that he is ready to receive the rent in cash from the tenant. The court was informed that  the rent upto January, 1997 is deposited in court.  The court disposed of the case vide its order dated 25.10.1996 directing the landlord to receive the rent deposited in court  upto January, 1997 and subsequent to  January, 1997 the landlord may  directly receive  the rent from the tenant. The landlord feeling aggrieved  by the order dated 25.10.1996 filed a revision before the District Judge being revision No. 5 of 1997.  Before the revisional court landlord contended that court cannot compel the landlord to receive the rent from the tenant.  He further contended  that he is not ready  to receive the rent from the tenant.  The revision was, however, dismissed by the revisional court vide its judgement dated 29.11.1997.  Immediately after dismissal of the revision a notice dated 20.12.1997 was issued by the landlord stating  that the petitioner has not paid rent from 1st January, 1990 onwards despite repeated demands.  The notice further stated that the tenant has dishonestly deposited part of rent in Miscellaneous Case No. 23/70 of 1994.  Water tax and sewer tax with effect from 1.6.1988 was also demanded.  Notice specifically stated  that the deposit made by the tenant under Section 30(1) of the Act, 1972 is illegal and no benefit is available to the petitioner in respect of the said deposit.  The tenancy of the petitioner was sought to be terminated after expiry of  of thirty days.  The said notice dated 20.12.1997 was served on the tenant on 26.12.1997.  Notice was replied  by the tenant vide his reply dated 12.1.1998.  Reply stated that the rent upto January, 1997 is deposited under Section 30 (1) in case No. 23/70 of 1994.  It was also stated that against the order passed under Section 30 (1) of the Act, 1972 revision filed by the landlord, has also been dismissed on 29.11.1997.  It was denied that the landlord was not residing at the House No. 108/144 Shishamau, Kanpur Nagar .  It was also denied that the landlord remains from 9.00 A.M.   To 7.00 P.M. at  the House No. 122/706 Sindhi Colony, Shahstri Nagar,  Kanpur Nagar.  The notice further stated  that the entire taxes from 30.6.1988 to January, 1998 and rent from February, 1997 to January, 1998 is being sent by  money order.  The amount of rent and taxes  mentioned in the notice reply was Rs. 3252/-.  The aforesaid amount sent by the tenant by money order is alleged to be refused by the landlord on 19.1.1998 and returned to tenant on 21.1.1998.

The suit No. 47 of 1998 was filed by the plaintiff landlord on 11.2.1998 praying for decree of ejectment and arrears of rent.  Written statement  was filed by the petitioner. The Judge small causes Court registered the suit on 11.2.1998 and issued summons for 18.3.1998. On 18.3.1998 the tenant appeared and made an application for giving copy of the plaint.  Copy of plaint was given to the tenant in the court itself.  Petitioner-  tenant also moved an application for depositing  the entire amount due in court and tender for depositing entire amount was submitted  by the tenant.   The counsel for the landlord objected to passing of the tender for depositing the amount and stated that the landlord is ready to take the amount in cash, on which counsel  for tenant stated that the tenant was not aware that the landlord will immediately ask the money.  The court passed an order directing the tenant to pay the amount in cash to the landlord on 20th March, 1998 at 2.10 P.M. in presence of the court.  20th March, 1998 was fixed since 19th March, 1998 was local holiday.  On 20th March, 1998 the amount in cash was received by the landlord under protest.  On subsequent  date the amount of the rent were deposited by the tenant through tender in court. Landlord's statement was recorded on behalf of the plaintiff whereas the tenant appeared in the witness box on behalf of the defendant.  The Judge Small Causes Court vide its judgment dated 25th October, 2000 directed ejectment of the petitioner.  A revision was filed by the tenant under section 25 of the Small Causes Court Act which has been dismissed by the revisional court vide its judgement dated 30th April, 2004.  This writ petition has been filed by the tenant challenging the  aforesaid two judgements.

The case of the landlord before the trial court was that the tenant is in arrears of rent and tenancy has been terminated by valid notice dated 20th December, 1997.  18th March, 1998 was the first date of hearing in the suit on which date the tenant did not deposit  the amount so as to entitle him the benefit of Section 20(4) of the Act, 1972.  The amount sent by money order  to the landlord were not on his address "122/706 Sindhi Colony, Shastri Nagar, Kanpur Nagar hence  it cannot be accepted  that the tenant has paid the amount after notice.  The deposit under Section 30(1) by the tenant in case No. 23/70 of 1994 cannot be accepted as valid deposit nor the same can be adjusted  under Section 20(4) of the Act, 1972.  The case of the tenant before the court below was that on landlord's refusal to accept the rent the rent was deposited under Section 30(1) of the Act in case No. 23/70 of 1994 and in the said proceedings the rent upto January, 1997 is deposited.  The proceedings under Section 30 of the Act, 1972 were disposed of  by the Civil Judge (Junior Division ) vide its order dated 25.10.1996 directing the landlord to receive the rent upto January, 1997 and thereafter directly from the tenant.  Landlord  filed revision on 25.10.1996 which has been dismissed on 29.11.1997. After receiving the notice  dated 20.12.1997 the petitioner sent  entire rent upto January, 1998 including  taxes by money order which was refused on 19th January, 1998 by the landlord and returned back to the tenant  on 21.1.1998.  The petitioner having tendered the entire amount due he was not in arrears and no decree for ejectment can be passed.  18th March, 1998 cannot be accepted as the first date of hearing since it was on that date  that the copy of plaint  was received by the petitioner.  The petitioner being  ready  to deposit the entire rent, he made an application  for deposit of the entire amount on 18th March, 1998 by tender, which was opposed by the landlord.  The petitioner was informed by his counsel that the case will be taken after lunch and after  passing of the tender  by the court for depositing the amount there will be no time left for depositing the amount in the Bank and under the practice prevalent  in the court the said amount could be deposited on the next  day or two thereafter.   The tenant claims to have requested the court  that some time be allowed to the tenant to go home to bring the money on which prayer the court directed the tenant  to be present in court with money on 20th March, 1998 at 2.10 P.M.  (19th March, 1998 being local holiday ).  The tenant is entitled  for the benefit under section 20(4) of the Act, 1972 and is not liable  for ejectment.  The suit of the plaintiff is liable to be dismissed.

The Judge Small Causes Court decreed the suit of the landlord after recording following findings :-

(i)  The tenant is in default for more than four months rent. It is not clear as to on which address the money order has been sent whereas the plaintiff has shown his address as House No.  122/706 Sindhi Colony, Shastri Nagar, Kanpur  and the rent sent by the tenant at the address 108/144 Shishamau Bazar, Kanpur.  The payment of rent  cannot be accepted.

(ii) The tenant is not entitled to the benefit of Section 20 (4) of the Act , 1972 since he could make the payment only after two days i.e. On 20.3.1998 whereas the first date of hearing was 18th March, 1998.

(iii) The rent deposited under Section 30(1) of the Act cannot be adjusted under Section 20(4) since the tenant has not proved that he has sent the rent to the landlord at his address 122/706 Sindhi Colony, Shashtri Nagar, Kanpur Nagar whereas the rent was sent at the house No. 108/144 Shishamu Bazar, Kanpur.  It is further stated that till the landlord refused to take the rent there is no justification for depositing the rent under Section 30.  

The revisional court also affirmed the views taken by the trial court on the aforesaid issues.

Sri Yatindra, learned counsel for the petitioner in support of the writ petition raised following submissions :-

(1) The amount deposited under Section 30 was entitled to be adjusted under section 20(4) and the view taken by the courts below is contrary to law.  Further, the revision filed by the landlord against the order passed under Section 30 was already dismissed by the revisional court  vide its judgment dated 29.11.1997 hence the deposit under Section 30 cannot be ignored.

(2) 18th March, 1998 cannot be held the first date of hearing since on that date the court did not apply its mind to the case and only on that date a copy of the plaint was served to the petitioner and the petitioner has made an application for depositing the entire rent on 18th March, 1998 itself.  The first date of hearing thus is to be  treated subsequent  to 18th March, 1998 and the deposit made by the petitioner  thus has to be accepted before the first date of hearing.

(3) Even if the 18th March, 1998 is to be treated as first date of hearing the petitioner having already made an application for depositing the entire amount by passing the tender and on objection made by the landlord 's counsel  in passing the tender the court having permitted the petitioner  to pay the amount on the next working day i.e. 20th March, 1998, thus the deposit has to be treated on the first date of hearing and the tenant cannot be made to suffer.   The court  having permitted the tenant to pay the amount on the next working day, the petitioner claim cannot be  defeated since the court's action cannot be treated to be prejudicial  to any person.

(4) The petitioner was not in default of rent since the rent upto January, 1997 was already deposited under Section 30 in Case No. 23/70 of 1994 and after receiving the notice dated 26.12.1997 within one month the petitioner sent the entire rent and taxes by money order which was refused by the landlord on 19.1.1998. Thus the petitioner cannot be held defaulter.

The learned counsel for the petitioner placed reliance on the following judgements :-

(i) A.I.R. 1992 Supreme Court 639

   Smt. Priya Bala Ghosh and others  versus      Bajranglal Singhania and another  

(ii)A.I.R. 1993 Supreme Court 2525

  Siraj Ahmad Siddiqui versus Shri Prem Nath   Kapoor

(iii)2000 (1) Allahabad Rent Cases 547

  Nanhey Khan  Versus   1st  Additional District    Judge, Farrukhabad

(iv)  2000 (1) Allahabad Rent Cases 345

    Radha Kishan  Versus   VIIth Additional District       Judge, Kanpur Nagar and others.

(v)  2000 (1) Allahabad Rent Cases 159

    Bhagwati Devi alias Bhaggo Devi  Versus

   IIIrd Additional District Judge, Agra and others.

(vi)  2000 (1) Allahabad Rent Cases 415

     Mahesh Chadra Sharma    Versus

   IInd Additional District Judge, Meerut & others.

(vii) 2002 (1) Allahabad Rent Cases 342

      Kailash Chandra & another   Versus

       Mukundi Lal and others.

(viii) A.I.R. 2000 Supreme Court 3032

       A. Venkatasubbiah Naidu   Versus

        S. Chellappan and others.

Sri Triloki Nath, learned counsel appearing  for the landlord refuting the submissions of counsel for the petitioner submitted that the courts below have rightly decreed the suit of the landlord.   18th March, 1998 was the first date of hearing since  that was the date on which the court was to apply its mind to the case, the petitioner has not deposited the amount on the first date of hearing and the payment of the amount on next working day i.e. 20th March, 1998 can not be held to be entitled for the benefit  under Section 20(4).  The court had no power or jurisdiction to  extend the time for payment and the order of the court permitting the tenant to pay the rent on the next working day was without jurisdiction and no benefit can be taken by the petitioner of the said order.  The money order sent by the tenant after notice dated 26.12.1997 does not show any address of the landlord nor there is any proof that the money order was refused by the landlord.  The landlord having never refused to accept the rent from the tenant, the deposit under section 30 is of no consequence.    Sri Triloki Nath, counsel appearing for the respondent has placed reliance on the following judgements :-

(i)  1981 Allahabad Rent Cases 143

    Abdul  Baqi  Versus   IIIrd Additional District &     Sessions Judge, Saharanpur and others.

(ii) 1984 (1) Allahabad Rent Cases 410

  Sia Ram Versus  District Judge, Khiri and others.

(iii) 1997(2) Allahabad Rent Cases 607

    Shyam Lal   Versus  Janki Das and another.

(iv) 1993 (2) Allahabad Rent Cases 485

    Radhey shyam Patwa  Versus   Xth Additional        District Judge, Varanasi and others.

I have considered the submissions of counsel for the parties and  have perused the record.

The first submission to be considered is as to whether the amount deposited under Section 30(1) is entitled to be adjusted under Section 20 (4) of the Act, 1972.  It is clear that the said amount upto January, 1997 was permitted to be deposited under the orders of the court and by order dated  25.10.1997 the  Civil Judge (Junior Division ) directed the landlord to receive the amount of rent deposited in court upto January, 1997.  The said order was challenged  by the landlord unsuccessfully .  Both the courts below have held that the deposit under Section 30(1) cannot be adjusted under Section 20 (4).  The courts below have held that  till the landlord refuses to accept the rent there is no justification for depositing the rent under Section 30 of the Act, 1972.  The courts below  have further held that the petitioner has failed to prove that the rent was sent by the petitioner to landlord  at House No. 122/706 Sindhi Colony, Shahstri Nagar,  Kanpur Nagar  whereas in the notice dated 20.12.1997 it is mentioned that the rent has been sent to House No. 108/144 Shishamau, Kanpur Nagar.  On the aforesaid basis both the courts below  have held that the tenant is not entitled for the benefit of deposit under Section 30.

The deposit under Section 30 was made by the tenant with the permission of the court and ultimately the case under Section 30 was decided by order of the Civil Judge (Junior Division )  directing the landlord to receive the rent deposited upto January, 1997.  The said order was challenged by the landlord  by filing revision which revision, too, was dismissed on 29.11.1997.  The proceedings under Section 30 were final and in view of the order of the Civil Judge (Junior Division )  dated 25.10.1996 having been affirmed by the revisional court, the deposit under Section 30 cannot be held to be invalid deposit.  While deciding the question as to whether the benefit of deposit under Section 30 can be given under Section 20(4) of the Act, 1972, Judge Small Causes Court could not have sit in appeal against the earlier order passed under Section 30 and  affirmed by the revisional court on 29.11.1997.  The deposit under Section 30 cannot be ignored  for the benefit under Section 20(4) of the Act, 1972.

The apex Court considered Section 20(4) and Section 30 of the Act, 1972 in 2002 (1) Allahabad Rent Cases 342 Kailash Chandra & another   Versus  Mukundi Lal and others (supra) , made following observations in paragraphs 9 and 14 :-

"9. A tenant is required to make deposit, under sub-section (1) of Section 30 on refusal of the landlord to accept the rent.  The deposit under sub-section (2) of Section 30 is required to be made where any doubt or dispute arises as to the person who may be entitled to receive rent in which event, the tenant may deposit the amount in the Court till such doubt has been removed or dispute has been settled.  The effect of the deposits made under sub-section (1) and (2) is to be found under sub-section  (6) of Section 30 according to which  it shall be deemed that the person depositing the amount  ;has paid it on the date of deposit, to the person in whose favour deposit is made under sub-section (1) and to the landlord in case deposit is made under sub-section (2).  It is thus clear that the effect of deposit under two different  circumstances as provided under sub-sections (1) and (2) of Section 30, is the same.  The deposit is deemed to be payment made  by the person depositing to the landlord.  That being the position, it is not open to say that a deposit  made under sub-section (2) of Section 30 would not be deemed  to be payment of rent to the landlord and the same is not liable to be accounted  for while considering  the amount due. Omission of sub-section (2) of Section 30 in sub-section (4) of Section 20 of the Act, cannot lead to an inference, which would negate or nullify the express and statutory effect provided under sub-section (6) of Section 30 regarding deposits made under Section 30(2) of the Act."

"14. Double payment or deposit for the same period is not envisaged, nor  it can be therefore, for construing the meaning of entire amount due as occurring in sub-section (4) of Section 20 of the Act, sub-section (6) of Section 30 will have to be read  along with it and not in isolation.   It would also save sub-section (6) of Section 30 from becoming OTIOSE. The anomalies and differentiation in the deposits made under sub-sections (1) and (2) of Section 30, though the effect is the same, would also be saved.  It would only harmonize the construction of the two provisions; namely sub-section (4) of Section 20 and sub-sections (2) and (6) of Section 30 of the Act.  Provisions of one Section of a statute cannot be  used to defeat those of another unless it is impossible to effect re-conciliation between them. (See Raj Krushna  v.  Vinod Kanungo, AIR 1954 State Election Commission  202  and Sultana Begum (supra)  as also Mohd. Sher Khan v. Raja Seth AIR 1922 PC page 17."

Both the courts below thus committed error in holding that the deposit under Section 30 cannot be looked into for the benefit under sub-section (4) of Section 20.  The deposit made by the tenant under sub-section (1) of Section 30, which was rent upto  January, 1997, was fully entitled to be adjusted in the deposit made by the tenant under sub-section (4) of Section 20.  Both the courts below have not even adverted to the effect  of the order passed under Section 30 dated 25th October, 1996 and 29th November, 1997 and without referring to those orders have ignored the deposit under sub-section (1) of Section 30.  The order passed by the courts below without considering the effect of the order dated 25th October, 1996 passed in proceedings under Section 30 of the Act and the order dated  25th November, 1997 passed by the revisional court affirming the order dated 25th October, 1996 is erroneous and the view of the courts below on the above issue is unsustainable.

Now comes to second submission raised by the counsel for the petitioner as to which shall be the first date of hearing in the present case.  There is no dispute between the parties that the summons were issued  for 18th March, 1998 in the case. The copy of summons have been brought on record by means of the supplementary affidavit. The suit was instituted on 11th of February, 1998, copy of order dated 11th February, 1998 is on the record as Annexure IX.  The order sheet show that 18th March, 1998 was fixed for final disposal.

Learned counsel for the petitioner has placed reliance on the judgment of the apex Court reported in A.I.R. 1993 Supreme Court 2525 Siraj Ahmad Siddiqui versus Shri Prem Nath Kapoor (supra).  The apex Court in the aforesaid judgment had considered Section 20(4) of the Act, 1972.  The apex Court in the case aforesaid case of Siraj Ahmad Siddiqui (supra)  has laid down following in paragraph 13 :-

" We are of the view, therefore, that the date of first hearing as defined in the said Act  is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary."

Further the judgements relied by the counsel for the petitioner are 2000 (1) Allahabad Rent Cases 547 Nanhey Khan  Versus   1st  Additional District  Judge, Farrukhabad;  2000 (1) Allahabad Rent Cases 345 Radha Kishan  Versus   VIIth Additional District Judge, Kanpur Nagar and others; 2000 (1) Allahabad Rent Cases 159 Bhagwati Devi alias Bhaggo Devi  Versus   IIIrd Additional District Judge, Agra and others and the judgment reported in 2000 (1) Allahabad Rent Cases 415 Mahesh Chadra Sharma   Versus IInd Additional District Judge, Meerut & others.  They also lays down the same proposition that the first date of hearing  is the date on which the court proposes  to apply its mind.

Learned counsel for the respondents has referred to Full Bench judgement of this Court reported in1984 (1) Allahabad Rent Cases 410 Sia Ram  Versus  District Judge, Khiri and others.  The Full Bench also approved the view that the first date of hearing for purposes under Section 20(4) is the date mentioned in the summons and not any adjourned date. The case of Shyam Lal   Versus  Janki Das and another's (supra) relying on the judgment of the apex Court reported in 1995 (1) Allahabad Rent Cases, 563 (SC) Advaita Nand   Versus   Judge, Small Causes Court, Meerut  also laid down  in paragraph 7 :-

"7. .................................... Naturally, the Court proposes to apply its mind to the matter on the date fixed in the summons.  It is another thing that because of an adjournment  sought by the defendant petitioner , it could not do so.  According to the decision of the Hon'ble Supreme Court, the date on which the proposes  to apply its mind to determine the points in controversy is the date of first hearing of the suit.  The Hon'ble Supreme Court's judgement cannot be interpreted  to mean that the date on which the Court actually proceeds to apply its mind to determine the points in controversy will be the date of first hearing."

In the summons sent to the tenant  18.3.1998 was the date fixed. From reading of the order sheet  dated 11..2.1998 it is clear that the said date was fixed for disposal of the case ;and the court proposed to apply its mind on that date. i.e.18th March, 1998.  Thus for the purpose of this case 18th March, 1998 is to be held as the first date of hearing.  

Now the third submission is required to be considered.  The contention of the counsel for the petitioner is that even if the 18th of March, 1998 is treated to be first date of hearing, the deposit made by the petitioner in pursuance of the order of the court passed on 18.3.1998 is fully eligible  for extending the benefit under Section 20(4).  As noted above, on 18.3.1998 petitioner moved an application before the court for permitting him to deposit the entire amount for which tender was also submitted.  The passing of tender by the court was objected by the counsel for the landlord who came with the prayer that the landlord is ready to accept the amount in cash.  It is also relevant to note the specific case taken by the tenant at this stage .  The case of the petitioner was that on 18.3.1998 when the case was taken at 2.30 P.M. petitioner's counsel had informed that it is not necessary to bring money since even if tender is passed by the court, the amount is to be deposited on the next day in the Bank; hence  there is no need to bring the money to deposit the same on 18.3.1998.  The petitioner in paragraph 12 of the revision has also categorically stated that on objection of the landlord that he is ready to accept the money, the petitioner requested the court that he be given some time to go home and bring the money on which the court directed that the petitioner  should appear  along with money on next working day i.e. On 20th March, 1998 (19th March, 1998 being local holiday ) at 2.10 P.M. to which effect the court also passed the order.  The petitioner complied the order and on 20th March, 1998 at 2.10 P.M. paid the money to the landlord.  The counsel for the petitioner has contended that the court having permitted the petitioner to deposit the amount, the petitioner cannot be made to suffer or loose the benefit of Section 20(4).  Reliance has also been made on the judgement of the apex Court in   A. Venkatasubbiah Naidu   Versus S. Chellappan and others A.I.R. 2000 Supreme Court 3032  in which case in paragraph 19 following observation was made by the apex Court :-

"19.............................It is acknowledged position of law that no party can be forced either for the inaction of the Court or its omission to act according to procedure established by law."

    Sri Triloki Nath learned counsel for the landlord refuting the submissions of the petitioner has submitted that the petitioner  is not entitled for the benefit of payment which was actually made on 20th March, 1998 under Section 20 (4).  He contended that the Court has no power to condone the delay in making the deposit under Section 5 of the Limitation Act as well as Section 151 of the Civil Procedure Code  is not applicable.  Reliance has been placed on the judgement of this Court in Radhey Shyam Patwa's case  (supra)  and the judgement of this Court in Abdul Baqi's case ((supra)).  In   Radhey Shyam Patwa's case (supra) on the first date of hearing the amount deposited was short which was deposited belatedly  by the tenant.  The Court held that Section 5 of the Limitation Act cannot be pressed into service to get the delay in making the reasonable deposit, condoned.  There is no dispute to the said proposition that the delay in deposit cannot be condoned by the Court in exercise of its jurisdiction with the aid of Section 5 of the Limitation Act.

However, in the present case the order dated 18th March, 1998 permitting the tenant to pay the amount in cash on the next working day was not an order condoning any delay in depositing the amount.  The tenant made an application on 18th March, 1998 itself for permitting the tenant to deposit  the entire rent in court.  Tenant's case before the court below was that the case was to be taken after 2.00 P.M. and on the counsel's instruction that after passing of the tender, money is to be deposited on the next date in the Bank, there was no necessity to bring the money  on 18th Marcy, 1998, he did not bring the money in cash.  The tenant, however,  on the same day claimed to have made a request to the court to give some time to go home and bring the money on which the court  passed an order for bringing the money on next working day at 2.10 P.M.  The court on 18th March, 1998 could have passed an order directing that the tenant to pay  or tender the amount to the landlord on same date  i.e. On 18th March, 1998 i.e. Upto 12.00 P.M.  but the court did not pass any such order and permitted the tenant to make payment on the next working day.  As prayed by tenant  had the court passed the tender for depositing the amount in Bank  the tenant could have deposited the amount in Bank on the next date  because the case was taken at 2.30 P.M.  In that event the deposit made even on next day of banking hour could have related back to 18th March, 1998.

One more fact is relevant to be noticed. In proceedings under Section 30 when the tenant deposited the rent upto January, 1997, the landlord appeared and stated that he is ready to accept the rent from the tenant in cash and the said proceedings were finalised by the order dated 25th October, 1996 directing the landlord  to receive the rent upto January, 1997 and thereafter every month directly.   The case of the tenant is that after the order dated 25th October, 1996 the landlord challenged the said order before the revisional court  in which court the landlord strenuously contended  that he cannot be forced  to accept the rent from the tenant by court.   He further stated before the revisional court that he is not agreeable to accept the rent from the tenant.  The said revision,too, was  dismissed on 29th November, 1997. The said conduct of the landlord is also to be taken into consideration while considering  the events which took place on 18th March, 1998.

At this juncture it is necessary to consider the judgment of Abdul Baqi (supra)  relied by the counsel for the landlord.  In the said judgment 20.5.1977 was the first date of hearing fixed in the summons.  The defendant appeared and moved two applications;  first was about the grant of time for filing written statement  and the second application was for passing the tender for depositing the amount in court.  On the second application an order was made that as the plaintiff was prepared to accept the money, therefore, there was no necessity to deposit the money in court.  Thereafter the case was adjourned and an ex parte decree was passed. The case was restored and the written statement was field in which it was alleged by the tenant that the defendant offered money to the plaintiff  soon in the court which was not accepted and he had told that the money should be paid at the shop.  The tenant further pleaded that he went to shop  and offered the money but the same was not accepted.  This Court observed in the said judgment that besides the above plea there was nothing on record to support the said submission.  This Court further noted that it is not mentioned in the writ petition that the evidence to the above affect was adduced  but was not considered by the court and/or that any argument made before the court, was not considered.  This Court observed  that the above argument cannot be entertained in the writ petition and following was observed in the said judgment:--

   

"The other argument of the learned counsel was that sub-Section  (4) of Section 20 of U.P. Urban Buildings ( Regulations of Letting, Rent and Eviction ) Act, 1972 (hereinafter referred to as the said Act) provided three  modes of saving ejectment. The first was  by payment of money to the landlord and second was by tender of money to the landlord and the third was by payment in the court  was not accepted and, therefore,  he could not be ejected.  The tender that was produced  before the court for deposit of money was not accompanied by money itself.  After  the court's order,the money has to be paid either in the bank or in the Nazarat depending on the amount and when the plaintiff had agreed  to accept the money, there was no reason why the money was not paid  then and there or at least the same day.  The defendant should have at least offered money in order to constitute the tender of money to the plaintiff on that very day.  Any  promise to any subsequently will not amount to tender. "

In the present case  on 18th March, 1998 an application was made by the tenant for  permitting him to deposit the amount in court  by passing tender which was opposed by landlord by saying that he is ready  to accept  the amount in cash.  The court did not pass any order on 18th March, 1998 that amount  as claimed by the landlord  be paid on that date, rather the court passed an order directing the tenant  to pay the amount in cash on the next working day i.e. On 20th March, 1998 ( 19th March, 1998 being local holiday).  When the court itself  has  permitted the  tenant  to pay the amount to the landlord on the next working day, there was no  occasion  to tender the money on that day to the landlord .  Further, the court did not pass  any order on the application  of the tenant  for passing the tender for depositing the amount nor the court has rejected the said application  insisting that the tender application should be accompanied by money.   The fact of the case  of   Abdul Baqi  (supra ) is  entirely different  and does not help  the petitioner in the present case.   In the facts of the present case  the amount though paid  on the next working day i.e. on 20th March, 1998 under  the order of the court passed on 18th March, 1998 , has to be held sufficient compliance of Section 20(4) and the tenant is clearly entitled for the benefit of Section 20(4).   The action of the court  should not prejudice any one.  The court itself has  permitted, on first date of hearing,  to the tenant to make the payment in cash  on next working day to the landlord which order was duly complied  with by the petitioner.  Petitioner cannot be denied the benefit under Section 20(4) .  The order passed by the  court on 18th March, 1998 permitting the petitioner  to pay in cash the landlord on the next working day entails  to the benefit of the petitioner of the protection under Section 20(4) of the Act.

Now remains the last submission of the counsel for the petitioner to be considered.  It has already been held above that the tenant is entitled for the benefit under Section 20(4) of the Act.  It has further been held that the rent deposited under Section 30 of the Act was entitled to be adjusted in the deposit to be made under Section 20 (4).  The petitioner having been held entitled to the benefit under sub-section (4) of Section 20 of the Act  decree of eviction cannot be passed.  The entire rent deposited under sub-section (4) of Section 20 may be withdrawn by the landlord.  In view of  above it is not necessary to consider the submission of the petitioner that the tenant was not in default of rent.

The petitioner being entitled for the benefit under Section 20(4) of the Act, 1972 the decree of ejectment passed against the tenant cannot be sustained.  It is open  to the landlord to withdraw the entire rent deposited before the Judge Small Causes Court including the rent  deposited  by the tenant in pursuance of the interim order dated 19.5.2004 passed in this writ petition.  Consequently the writ petition is allowed. The judgment and order dated 25.10.2000 passed by the Judge Small Causes Court and the order of the revisional court dated  30.4.2004 are set aside.  The suit for ejectment filed by the landlord  is dismissed.  Parties shall bear their own costs.

D/-21.10.2005

SCS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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