MAN SINGH versus SHAMIM AHMED (DEAD) THR. LRS on 5 April 2023

1. This is a tenant’s appeal, arising out of rent and evictionDproceedings from a Small Causes Court. The landlord’s suit for evictionwas allowed and the tenant’s J.S.C.C. Revision and Writ Petitionrespectively have been dismissed. Leave was granted by this Court on11.2.2015 and the impugned order was stayed, subject to certainconditions.

E2. The premises in question is a shop situated in Kotla, Gangoh-Town, Nukur-Tehsil, District-Saharanpur, Uttar Pradesh (hereinafterreferred to ‘premises’) which was given on rent to the present appellanton 06.01.1982 on a monthly rent of Rs. 165/- per month. Later, the rentwas increased to Rs. 195/- p.m. and then from 01.01.1990 onwards toRs. 250/- p.m. This is the admitted position. We must, however, recordFhere that the landlord’s claim of the rent being further increased up toRs.300/- per month was denied by the tenant though the Trial Court andthe Revisional Court have given their findings on the enhanced rent, infavour of the landlord.

3. The appellant’s case is that he was a tenant in the shop, on aGmonthly rent of Rs.250/- per month. In June, 1993, the landlord refusedto accept the rent which was then paid by the tenant through moneyorder which was returned with an endorsement of refusal. Under thesecircumstances when the rent was being refused by the landlord, thetenant started depositing the rent in the Court of Civil Judge (JuniorHDivision) (hereafter referred to as ‘Court’). An amount of Rs.750/- which

at the rate of Rs.250/- per month was the rent for May, June and Julywhich was thus deposited, and continued to be deposited in the Court, bythe tenant.

4. A notice was given by the landlord on 05.04.1995, admittedlyreceived by the tenant/appellant on 10.04.1995, where the landlorddemanded rent from May, 1993 onwards. The notice did not result in thedeposit of the rent before the landlord and consequently the landlordfiled a J.S.C.C. Suit No.179 of 1995, in the Court of Judge, Small Causes,Saharanpur for arrears of rent and eviction, on the grounds of arrears ofrent from 01.05.1993 onwards. In the plaint it was alleged by the landlordthat though earlier the monthly rent of the shop was Rs.250/- per monthbut later through an oral settlement in the year 1993, it was agreed betweenthe parties that there shall be an increase of Rs.25/- per month everyyear and therefore it became Rs.275/- per month from 01.05.1993onwards and Rs.300/- per month from 01.05.1994 onwards etc., andthus, the tenant-appellant was in default of rent. Since this rent has notbeen paid the tenancy stands terminated on notice already served andhence the landlord sought an order of eviction.

5. In his reply the appellant denied that there was any oralagreement between the parties for yearly enhancement of rent by Rs.25/- per month. The actual and admittedrent is Rs.250/- per month, whichis being duly paid in court since May, 1993,and continuously beingdeposited thereafter and the tenant has never been at any point of timea defaulter for the payment of rent. At this juncture, it is necessary torefer to the provision of law which is applicable in the present case. Thestatute which governs the field is ‘The Uttar Pradesh Urban Buildings(Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referredto as “the Act No. 13 of 1972”).

6. Under Section 20 Sub-section (2) a suit for eviction of a tenantfrom a building can be instituted, inter alia, on the grounds given in sub-section 2 (a) of Section 20 reads as follows:

“(2) A suit for the eviction of a tenant from a building afterthe determination of his tenancy may be instituted on one ormore of the following grounds, namely:

(a) that the tenant is in arrears of rent for not less than fourmonths, and has failed to pay the same to the landlord withinone month from the date of service upon him of a notice ofdemand:”

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AThe ground of non-payment of rent by the tenant therefore has tobe for not less than ‘four months’ and which has not been paid withinone month of service of demand of the notice. Moreover, even whenthis rent is not paid and the landlord files his suit for eviction, the lawprovides yet another opportunity to the tenant to unburden this liability,which is by payments of the entire rent and arrears, before the firstBhearing of the suit. This is in sub-section (4) of Section 20 which readsas under:

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“20(4). In any suit for eviction on the ground mentioned inclause (a) of sub-section (2), if at the first hearing of the suitthe tenant unconditionally pays or [tenders to the landlordCor deposits in court] the entire amount of rent and damagesfor use and occupation of the building due from him (suchdamages for use and occupation being calculated at the samerate as rent) together with interest thereon at the rate of nineper cent per annum and the landlord’s cost of the suit inDrespect thereof, after deducting therefrom any amount alreadydeposited by the tenant under sub-section (1) of Section 30,the Court may, in lieu of passing a decree for eviction on theground, pass an order relieving the tenant against his liabilityfor eviction on the ground:

Provided that nothing in this sub-section, shall apply inrelation to a tenant or any member of the whose family hasbuilt or has otherwise acquired in a vacant state, or hasgot vacated after acquisition, any residential building inthe same city, municipality, notified area or town area.

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[Explanation.- For the purposes of this sub-section- F

(a) the expression “first hearing” means the first fatefor any step or proceeding mentioned in the summonsserved on the defendant; (b)the expression “cost of the suit” includes one-halfof the amount of counsel’s fee taxable for a contestedsuit.]”

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As we have already referred above the case of the appellant/tenant has been that on refusal of the landlord to receive the rent, hewas constrained to deposit the same in the “Court”. The Act No. 13 ofH1972 provides under Section 30, an avenue for the tenant to deposit rent MAN SINGH v. SHAMIM AHMED (DEAD) THR. LRS[SUDHANSHU DHULIA, J.]

in court, inter alia, in the event such rent is being refused by landlordthe.

“30. Deposit of rent in Court in certain circumstances.-

(1) If any person claiming to be a tenant of a building tendersany amount as rent in respect of the building to its allegedlandlord and the alleged landlord refuses to accept the samethen the former may deposit such amount in the prescribedmanner and continue to deposit any rent which he alleges tobe due for the any subsequent period in respect of suchbuilding until the landlord in the meantime signifies by noticein writing to the tenant his willingness to accept it.

(2) Where any bona fide doubt or dispute has arisen as to theperson who is entitled to receive any rent in respect of anybuilding, the tenant may likewise deposit the rent stating thecircumstances under which such deposit is made and may,until such doubt has been removed or such dispute has beensettled by the decision of any competent Court or by settlementbetween the parties, continue to deposit the rent that maysubsequently become due in respect of such building.

(3) The deposit referred to in sub-section(1), or sub-section(2) shall be made in Court of the Munsif having jurisdiction.

(4) On any deposit being made under sub-section(1), the Courtshall cause a notice of the deposit to be served on the allegedlandlord, and the amount of deposit may be withdrawn by thatperson on application made by him to the Court in that behalf.

(5) On a deposit being made under sub-section (2), the Courtshall cause notice of the deposit to be served on the personor persons concerned and hold the amount of the deposit forthe benefit of the person who may be found entitled to it byany competent Court or by a settlement between the partiesand the same shall be payable to such person.

(6) In respect of a deposit made as aforesaid, it shall bedeemed that the person depositing it has paid it on the dateof such deposit to the person in whose favour it is depositedin the case referred to in sub-section (1) or to the landlord inthe case referred to in sub-section (2).”

(emphasis provided)

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A7. The case of the landlord is that after the notice dated 05.04.1995was served on the tenant (on 10.05.1995), and he refused to pay therent within the stipulated period of one month, his tenancy stood terminatedand he had therefore filed a suit for eviction before the Judge, SmallCauses Court, Saharanpur for his the eviction. The position of the tenantthroughout has been that there was no occasion for him to deposit theBrent on receiving the notice dated 10.05.1995, or on the first hearingunder Section 20(4) of the Act, for the simple reason that he had neverdefaulted in payment of rent as the entire rent at the rate of Rs. 250/-per month was being deposited by him in the Court under Section 30 ofthe Act. The Judge, Small Cause Court gave a finding that the tenantCwas in arrears of rent, holding that the rent was Rs.300/- per month andnot Rs.250/- per month which admittedly has never been depositedanywhere, and consequently a decree of eviction and recovery of rentwas passed against the tenant. The tenant then filed JSCC Revisionbefore the District Judge, Saharanpur which was dismissed on 31.07.2003and so was his writ petition, later by the Allahabad High Court onD17.02.2012.

8. The Allahabad High Court though, has set aside the findings ofthe Trial Court and the Sessions Court, on the enhanced rent. The HighCourt held that there was no evidence before the trial Court of any ‘oralagreement’ set up by the landlord, which provided for a periodical increaseEof rent from Rs. 250/- per month to Rs. 275/- per month, and then toRs.300/- per month, and so on. Since the so-called oral agreementbetween the parties was not proved, it would be deemed that the correctrent between the parties was Rs. 250/- per month, which was being paidby the tenant in the Court under Section 30 of the Act.F

9. The High Court then proceeded to decide the legal positionpost notice dated 05.04.1995. Section 30 of the Act provides that thedeposit may be made in the Court on refusal of the rent by the landlord,but this position only lasts till the landlord expresses his willingness toreceive the rent. This willingness to receive the rent has to be seen in hisGnotice dated 05.04.1995 received on 10.05.1995, by the tenant. The HighCourt dealt with this aspect and held that once the notice of demandwas sent to the tenant by the landlord on 05.04.1995 (received by theappellant on 10.04.1995), demanding a rent at the enhanced rate, thenthe tenant had no option but to deposit the rent before the landlord, asagainst depositing it in the Court. He could though deposit the admittedH

rent (i.e. Rs.250/-) and not the enhanced rent (Rs.300/-), but the deposithad to be made to the landlord.

10. This was not done and the defence of the tenant that hecontinued to deposit the “admitted rent” in the Court will not come to hisrescue as once the landlord had expressed his willingness to accept therent, which was expressed in his notice of demand dated 05.04.1951then such a rent was liable to be given to the landlord and not in theCourt. We are of the considered view that the reasoning given by thelearned Single Judge of Allahabad High Court, which follows a Full Courtjudgment of the High Court, correctly lays down the law. Section 30gives an opportunity to the defendant to deposit the admitted rent inCourt, but this arrangement lasts only till the landlord expresses hiswillingness to receive the rent directly.

11. Let us again examine sub-section (1) of Section 30 underwhich the tenant can deposit rent in the Court. The above provisionshave already been referred above, but we would like to emphasize thelast few lines of the provision which says:

‘…until the landlord in the meantime signifies by notice inwriting to the tenant his willingness to accept it’

In other words, the tenant can only deposit rent in the Court, aslong as the landlord has refused to accept the rent. Once the landlordexpresses his willingness to accept the rent, which in the present casehe does by serving the notice dated 05.04.1995 (received on 10.04.1995),the tenant has no option but to deposit the rent to the landlord. This hasnot been done by the appellant.

12. The Full Bench decision of which reference has been givenby the Allahabad High Court in its impugned judgement dated 17.02.2012is Gokaran Singh v. I[st] Additional District and Sessions Judge,Hardoi and Ors.[1] There were three questions before the Full Bench,all of them were relating to the Act No.13 of 1972. One of the questionswith which we are presently concerned was:

“In a case where the landlord had earlier been refusing toaccept rent at the correct rate and had been claiming rent athigher rate and the tenant had as a consequence of landlordsearlier refusal in the past, deposited the rent in Court under 1 2000 SCC OnLine All 174

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ASection 30 and thereafter, landlord serves a formal notice ofdemand again at a higher rate, whether the tenant withouttendering rent at the correct rate to the landlord has a rightstraight away to deposit the same under Section 30 (1).”

After discussing the entire law on the subject, the conclusionBderived by the Full Bench to this question is as follows:

37. (2) If the landlord has been refusing to accept the rent atthe correct rate and has been claiming rent at higher rate,the tenant as a consequence of landlord’s earlier refusal inthe past, deposited the rent in the Court under Section 30Cand if thereafter landlord serves formal notice to of demandagainst the higher rate and expresses his willingness to acceptthe rent, the tenant after receipt of notice is under an obligationto tender the rent at least at the rate admitted to him to thelandlord and has got no right to straight away deposit thesame under Section 30(1) of the Act.”D

13. The learned counsel for the appellant Sh.U.K.Uniyal, wouldrely on a later decision of this Court which is Ajai Agarwal and Ors. v.Har Govind Prasad Singhal and Ors.[2]. We are afraid that the factsof the said case were entirely different. In the case cited above, thetenant was given the benefit of sub-section (4) of Section 20 of the Act,Eas he had deposited the “admitted rent” before the first date of hearing.The question before the Court was whether in order to get the benefit ofsub-section (4) of Section 20 the tenant was liable to deposit the enhancedrate of rent as claimed by the landlord, or will he be relieved of theliability if he deposits the admitted rent. This court was of the opinion,Fwhich was in fact the settled position of law, that in case a tenant depositsthe admitted rent, under sub-section 4 of Section 20, he would get thebenefit. Paragraph 19 of the above cited judgement clears this position.

19. In the absence of any proper evidence regarding thepurported agreement for periodical enhancement of the rents,Git becomes difficult to accept the story of such agreedenhancement as made out on behalf of the landlord or itsapplication to the provisions of Section 20(4) of the Act. Sincethere is no such evidence on record, except for theuncorroborated statement of the landlord, we have no other H2 (2005) 13 SCC 145

MAN SINGH v. SHAMIM AHMED (DEAD) THR. LRS[SUDHANSHU DHULIA, J.]

option but to accept the story of the appellant tenants thatthe parties had agreed to the increase of the monthly rent upto a maximum of Rs 100 per month and that too after therenovation had been effected to the shop room and a shutterhad been fixed therein. If such be the case, the appellantswould also be entitled to the protection of Section 20(4), sincethe rents admitted to be in arrears at the rate of Rs 100 permonth had been duly deposited by the tenant within the timeprescribed under such provision of the Act.

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14. The learned counsel of the appellant Shri Uniyal, sought todraw a parallel with the said case and would argue that in the presentcase as well the tenant has been depositing the admitted rent. However,as we have already noticed the facts of the two cases are entirelydifferent. The above case therefore has no application to the presentcase.

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15. We therefore find no merit in the appeal which is herebyDdismissed. All interim Orders shall stand vacated.

Nidhi Jain

(Assisted by : Adiraj Bali and Tamana, LCRAs)

Appeal dismissed.

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