SHEO NARAIN v. SHER SINGH (2)

Citation: [1980] 1 S.C.R. 836

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, P.S. KAILASAM, A.P. SEN

Case summary

This case has rather a chequered career and travelled through various stages and finally when it came to the High Court the case was remanded and after remand another Nvision petition was filed before the High Court which was heard by a Single Judge who referred it to a...

Judgment text

SHJilO NARAIN ' v. SHER SINGH September 21, 1979 • [S. MURTAZA FAZAL ALI, P. S. KAILASAM AND A. P. SEN, JJ. ] East Pu111ab T. Jrban Re111 Restriction Act, 1949, Provisa ta Secaon 13(2) (i)' -Scope of-Whether tlie deposit by a tenant of the entire arrears of rent or the ... - ' Fair Rent fixed by the Rent Controller before the first date of hearing of the • ejectment application would amount to deposit on the . 'first date of hearing so as to attract the' benefit under Section 13(2)(i) of the Act.

The proviso to clause (1) of sub~section (2) of section 131 of the East Punjab Urban Rent Restriction Act, 1949, states that ''if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest @ 6% per annum or such arrears together with the co3t of application assessed by the Controller, the tenant shall beo deemed to have duly paid or tendered the rent within the timei showed in clause (i) of sub-section (2) 0 of section 13 of the Act, 1949". In such circumstances, an order for eviction against the tenant cannot be passed. The appellant v. •as a tenant under the respondent-landlord Sher Singh. On 21-3-67, Sher Singh filed an application under Section 13 of the East Punjab Urban Rent Restrictions Act, 1949 for ejectment of the appellant-tenant from the tenanted shop situate in Gurgaon Cantonment, on the ground of arrears of rent for the period from 9-11-65 to 8-3-67 at the agreed rate @ Rs. 15/- p,m.

The notice of the application for ejectment with the first date of hearing as 11-5-67 was served on the appellant-tenant on 22-4-67. On 29-4-1967 the appellanttenant made1 an application before the very same Rent Controller praying for payment of arrears of rent i. e. Rs. 178. 48 for the above period computed @ Rs. 10. 62 p. m. , being the fair rent fixed by that Court on 20-4-67 in an ear1ier application for :fixation of fair rent. The said amount was actually deposited in the court of the Rent Controller on 4-5-67. On 11-5-67 the appellant tenant tendered in the court to the Jandlord a further sum of Rs. 25/· being the costs and Rs. 2/- being the interest. This was not accepted on the ground that the tender was not a valid one within the meaning of section 13(2)(i) of the Act. This objection was accepted by the Rent Controller and ·an ejectment order was ·I passed. On first appeal the District Judge reversed the said order.

In the ' Revision before the High Court, the High Court remanded the matter to the first Appellate Court for fresh orders in view of this Court's 1uling in Vidya Prachar Trust v. Basant Ram [1970] I S. C. R. 66. The Firnt Appellate Court affirmed the ejectment order. In the further revision to the High Court, the learned single Judge referred it to the Division Bench which in turn referred rn to a third Judge. The third Judge agreed with the single Judge that the payment of fair • rent fixed on 4-5-67 was not a valid tender within the meaning of section 13(2) (i) t)f the Act. The single Judge, therefore, dismissed the revision petition and confirmed the orders . of ejectment of the courts below. Allowing the appeal by special leave, the Court. ·' SHEO NARAYAN V. SHER SINGH 837 HELD: J.

Proviso to section 13(2)(i) of the East Punjab Urban Rent Restrictions Act, 1949 requires three essential conditions: (1) that there must be an application for ejectment before the Court, (2) that even after due service the tenant e1 had been informed that the amount had been deposited. There is ncr magical formula or any prescribed manner in which rent can be deposited by the tenant with the landlord. The rent can oo deposited by placing the money in the hands of the landlord which would amount . B to actual tender. The second mode of payment is to deposit the amount in the court where a case is pending in such a maimer so as to make the amount available to the landlord without any hitch or ·hindrance whenever, he wants. it. Even the Act does uot prescribe any particular mode of deposit. In ~act, the use of the words "tender or. deposit" in the proviso clearly postulate that the rent can be given • to the landlord in either of the two modes.

(1) It may be tendered to the landlord personally or . to his authorised agent or it may be deposited in Court which is dealing with the case of the landlord to his knowledge so that the landlord may withdraw the deposit whenever he likes. In the instant c~se the appellant tenant chose the second course. How can it be said that a deposit before the Rent Controller where the case of the landlord was sub-judice would not be a valid deposit if it was in fact in existence on the date of the first hearing to the knowledge of the landlord. The reasoning of the High Court that the re'nt was deposited earlier than 11-5-1967 and is therefore; invalid does not appear to us at all. In fact, if the tenant deposits the rent even before th. e first date of hearing it is a solid proof of his bonafides in the matter and the legal position would be that· if the rent is deposited before the ,first date of hearing, it will be deemed to have been deposited on the.

date of the hearing also because the deposit continues to remain in the court on that date and the pPSition would be as if the tenant has deposited . the rent in court for paymept to the landlord. This is more particularly so when the Controller gave notice to counsel for the respondent on the first date of hearing that the amount had been deposited with the Controller. rn these circumstances, we are satisfied that all the conditions necessary for the application of the proviso have been completely fulfilled in this case and the High Court was not at' all justified in allowing the application of the landlord and directing ejectment of the appellant. .. Coming now to the case of Vidya Prachar Trust case (supra) which is the sheet anchor of the judgment of the High Court we think that it is clearly distinguishable from the facts of this case.

In the first place, although in that case also an application under section 13 of the Act had, been made by the applicant for the eviction of the respo'ndent on the ground that rent was not paid, the tenant on the first date ·of hearing did not tender the rent, cost and interest as required by the proviso but only a part of the rent. It is, therefore, ma"nifest that in the case which was being dealt with by the Supreme Court the first condition enjoined by the proviso was not fulfilled', at all and on that ground alone it could be held that the deposit was not valid. Secondly, the deposit in that case was made not before the Ren: Controller li"nder the proviso to section 13 of the Act but was made before the Judge under section 31 of the Punjab Relief of Indebtedness Act which had absolutely no application to proceedings for eviction taken under the Act.

ThUIS, a deposit made before some other court had no nexus with the arrears df p~nt for which an application for ejectment was filed before the Rent Controller. Thirdly, it was pointed out by this Court that the tenant had deposited even one month's rent in advance which under the provisions of section 19 read with section 6 · of the Act was an offence if the landlord had withdrawn the rent. Thus, the tenant in that case had deposited the rent in a manner and Jlllder circumstances under which it could not be made available to the landlord even if he wanted to withdraw it because the landlord may have entailed a criminal penalty. Those are the fact> on the basis of which this Court held that the deposit was not valid. In this connection this Court observed as follows :- "There is only one savi·ng for the tenant and that is when he tenders the full rent in Court before the Rent Controller together with interest and costs.

In the present case, the tenant did tender rent but only for a portion of the P'eriod and he relied on his deposit under the Relief of Indebtedness Act as due discharge of his liability for the earlier period. It. may be state. ct that the deposit before the Senior Sub Judge was made not only of arrears of rent but prospectively for some future period for which the rent was then not dne. " It appears from the ohservations of this Court extracted above that ·the deposit was prima facie invalid. This Court further observed as follows:- "It is impossible to think that the' landlords would be •• r~quired to . go to the Court of the Seuior Sub Judge with a view to findmg out whether their tenants have deposited P~"nt due to them or not ...... On the whole therefore we are of opinion that the deposit und•"r section 31 of the Relief of Indebte. dness Act did not save the tenant from the consequences of ~h: default as contemplated by s. 13 of the Urban Rent Restnctlon Act.

" The effect of this observation is that the deposit was made in a wrong court and under such circumstances that the deposit could not be available to the landlord whenever he wanted. It was against the background of these special facts and circnrnstances that this Court in the Vidya Prachar Trust case (supra) held that the deposit was not valig. In the instant case we find that the deposit made by the appellant does not suffer from any such infirmities as were present in Vidya Prachar Trust case (supra). Finally, we would like to observe that the Rent Control Act is a piece of social legislation designed to protect the tenant from eviction by landlords on frivolous, insufficient or purely technical gronnds. Even as the Act allows eviction of the tenant on the ground of non-payment of arrears of rent the proviso affords sufficient protection to the tenant against eviction if the tenant deposits the rent in accordance with the . proviso.

Vidya Prachar Trust case (supra) was reconsidered by this Court in a recent decision in the case of Du/i Chand . v. Maman ' Chand(') by a Bench of three Hon'ble Judges of which one of us (Kailasam, J. ) was a party and while distinguishing the case this Court made the fo:Jowing observations :- "We need not deal with all the contents that have been canvassed on both sicJ. ~s. Nor do we feel the necessity of reconsidering the decision in Vidya Prachar Trust v. Basant Ram because on facts, the instant case is clearly distinguishable from that case. Here, before us, the rent for the mo"nths of February, March and April 1964 was deposited by the tenant to the credit of the landlord in the very court of the Rent Controller in which the landlord subsequently filed the eviction petition.

The deposit lying in the Treasury was in the legal custody and control of the court of the Rent Controller, and at the first hearing, if not earlier, the landlord was informed that he was entitl·~d to withdraw that deposit. Thus, even if the tenant had obtained the order of the Rent Controller for making the dep06it, by referring to section 31 of the Relief Act, the fact remained that the money was in custodia legis and could be ordeted to be paid to the landlord there and then by the Court at the first hearing. " It was further held by this Court that where the tenant makes the deposit of the arrears of rent and interest informing the landlord at the (I) C. A. 1744 of 1969 decided on 27·3·1979. ·sHEO NARAYAN l'. SHER SINGH (Fazal Ali, J. ) 845 1first hearing then the requirem~nt of the law has been sufficiently complied with.

1n this connection, the Court observed thus :- "The tenant by making deposit of the arrears of rent and jnterest and costs and informing the landlord at the first ·hearing that he could receive the same from the Court, had substantially cQlllplied with the requirement of the said ·proviso. " ln the instant case we have already pointed out that the appellant had fulfilled all the conditions of the proviso and had deposited the rent arrears, costs and interest on the first date of hearing and he, therefore, complied with all the requirements of the proviso and was, therefore, entitled to the protection given by the statute. In view of the legiil . opinion we have formed regarding the interpretation of provisq to sec- . tion 13 of the Act it is manifest that the judgment of the High Court is legally erroneous and the case of Mehnga Singh (supra) is hereby. overruled, as it had wrongly applied and misconstrued the decision of ihis Court in Vidya Prachar Trust case (supra).

·o For these reasons, therefore, we allow this appeal, set aside the judgment of the High Court and dismiss the application of the respondent for ejectment of the appellant. In the peculiar facts and circumstances of this case the parties will pay and bear their own costS throughout. I 1 S. R. Appeal allowed. -· .