IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3339 (M/S) of 2001 Jamshed Ali S/o Sri Khair Ullah ..……… Petitioner Versus The District Judge and others ……… Respondents Mr. K.N. Joshi, Advocate for the petitioner. Mr. V.N. Agarwal, Advocate for the respondents. Hon’ble Tarun Agarwala, J. The issue in question which arises for consideration in this petition is, whether the petitioner has made a valid deposit u/S 30 of the U.P. Act No. 13 of 1972 or not ? If the deposit has been made in the prescribed manner as envisaged under Section 30 (1) of the Act, it would be a valid deposit, which in turn gives the petitioner the benefit u/S 20 (4) of the Act. If the deposit has not been made in the circumstances provided u/S 30 (1) of the Act, it would not be valid deposit and such deposit would not avail the benefit of sub-section (4) of Section 20 of the Act. The facts leading to the filing of the writ petition is, that the landlord opposite party filed a suit No. 9 of 1998 for the eviction of the petitioner for arrears of rent and damages alleging that the rent was @ Rs. 50/- p.m. The said suit was eventually dismissed on 23.01.1989. On 22.07.1989, the landlord issued a notice to the petitioner to pay rent. The petitioner submitted a reply indicating that he was willing to pay the rent to the landlord provided he furnished a receipt. Since no reply was received, the petitioner deposited the rent in Misc. Case No. 42 of 1987 u/S 30 of the Act. It transpires that the landlord again issued a notice dated 03/12/1990 alleging that the petitioner was in arrears of rent w.e.f. 01/01/1989 and that a sum of Rs. 1870/- was due and payable. 2 Pursuant to the said notice dated 03/12/1990, the landlord filed a Suit No. 12 of 1991 on 22/09/1991 for arrears of rent w.e.f. 01/01/1989. The landlord contended that rent @ Rs. 50/- p.m. and water tax @ Rs. 6.25 p.m. was payable. The petitioner resisted the suit and contended that there was no arrears of rent and that rent @ Rs.50/- p.m. was being deposited u/S 30 of the Act since the landlord had refused to accept the rent. The petitioner further contended that no water tax was payable and that the rent fixed was inclusive of the water tax. The Judge Small Cause Courts after considering the material evidence on record came to a conclusion that water tax was payable by the petitioner and was not inclusive of the agreed rent. The JSCC also held that the deposit made by the petitioner u/S 30 of the Act was an invalid deposit and therefore the said deposit could not be taken into consideration u/S 20 (4) of the Act. The Court held that since the entire amount was not deposited before the 1st date of hearing, the petitioner was in arrears of rent and accordingly decreed the suit for arrears of rent and for eviction of the petitioner. The petitioner, being aggrieved by the decree, filed a revision u/S 30 of the Provincial Small Cause Courts Act which also met the same fate. The petitioner, being aggrieved by the aforesaid orders, has filed the present writ petition. Heard Shri K.N. Joshi, the learned counsel for the petitioner and Shri V.N. Agarwal, the learned counsel for the respondents. According to the landlord, a sum of Rs. 2,879/- towards rent, damages, etc. was required to be deposited on or before the 1st date of hearing. According to the petitioner, he had deposited a sum of Rs.3,091.50 on or before the first date of hearing. Since, he had deposited more than what the plaintiff had asked for, the benefit u/S 20 (4) of the Act ought to have been awarded to him. 3 For facility, the details of deposit made by the petitioner is as under: 08.07.1989 Deposited in Misc. Case No. 42 of 1987 Rs. 150.00 24.11.1990 ---- do ---- Rs. 200.00 30.11.1990 -----do ---- Rs. 600.00 28.12.1991 1st date of hearing deposited Rs. 2141.50 Total Rs. 3091.50 According to the plaintiff, the deposit of Rs. 950/- made by the petitioner was not in accordance with the provision of Section 30 and, consequently, the benefit of Section 20 (4) could not be given on such invalid deposit. This plea of the plaintiff was accepted by the courts below. Before proceeding further, it would be appropriate to consider a few provision of the Act. U/s 20 (2) of the Act, a suit for the eviction of the tenant could be instituted on certain grounds after the determination of his tenancy. U/s 20 (a) of the Act, a suit for eviction could be instituted if the tenant is in arrears of rent for not less than 4 months, and has failed to pay the same to the landlord from the date of service upon him on a notice of demand. Sub section (4) of Section 20 provides as under:- “ In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or [tenders to the landlord or deposits in Court] the entire amount of rent and damages for use and occupations of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord’s costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree 4 for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground: Provided that nothing in this sub-section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. [Explanation. – For the purposes of this sub-section – (a) the expression ‘first hearing’ means that the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression ‘cost of the suit’ includes one-half of the amount of counsel’s fee taxable for a contested suit].” The aforesaid provision indicates that in a suit for eviction on the ground of arrears of rent, if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use & occupation being calculated at the same rate as rent) together with interest thereon @ 9% p.a. and landlord’s cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground pass an order relieving the tenant against his liability for eviction on that ground. Section 30 (1) and 30 (6) of the Act is extracted hereunder:- “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 5 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. (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).” The aforesaid provision provides that if any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to the alleged landlord and, the alleged landlord refuses to accept the same, in that event, the tenant may deposit such amount in the prescribed manner and continue to deposit the rent which he alleges to be due for any subsequent period in respect of such building until the landlord signifies by notice in writing to the tenant his willingness to accept it. A legal fiction is created u/S 30 (6) of the Act whereunder the amount so deposited would be deemed to have been paid to the person in whose favour it had been deposited. The rationale in allowing the tenant to deduct the amount deposited by him under Section 30 (1) has been explained explicitly by a Full Bench of the Allahabad High Court in Smt. Mridula Dayal Vs. VIth Addl. District Judge, Allahabad and others, ARC 1986 (2) wherein it was held as :- “The rationale behind the provision contained in Section 20 (4) of the Act permitting the tenant to deduct the amount deposited by him under sub-section (1) of Section 30, from out of the rent, interest and costs payable by him is to be found in sub-section (6) of Section 30, which creates a fiction to be payments made to the concerned person. The fiction under sun-section (6) of Section 30, arises where the deposits have been made been made by the tenant in the 6 circumstances enumerated in sub-section (1) or sub-section (2) of Section 30 and not otherwise. Sub-section (1) of Section 30, countenances deposits being made by a person in the prescribed manner- (i) if such person claims to be a tenant of the building (ii) he tenders any amount as rent in respect of the building to the alleged landlord, and (iii) the alleged landlord refused to accept the same. The Section envisages that there may be a controversy between the person claiming to be a tenant and the person whom he alleged to be his landlord with regards either to their relationship of being landlord and tenant or about the rate of rent payable by the person claiming to be the tenant or even about the actual amount of rent may due from such person. The person alleging himself to be the tenant can deposit the amount which was tendered by him as rent to the person whom he claims to be his landlord, and such person had refused to accept the same irrespective of whether the refusal of the landlord in accepting the said amount was justified or not. Any deposit so made by the person claiming to be a tenant is, as laid down in sub- section (6) of Section 30, deemed to be the amount of rent paid to be the person in whose favour it had been made. Accordingly whenever a question regarding extent of the amount of rent paid to the landlord arises, the amount deposited in accordance with the provisions of sub-section (1) of Section 30 of the Act has to be taken into consideration and accounted for. The fiction does not come into play where the deposit has been made by a person in circumstances not covered by sub-section (1) of Section 30 (we are omitting from consideration the provisions of sub- section (2) of Section 30, as they are not relevant for out purposes).” As per Section 30 (1) of the Act, the three essential ingredients for a valid deposit is that the person depositing the amount must claim to be the tenant, that he tenders the amount as rent to the landlord, and that the landlord has refused to accept the rent. If all the three ingredients exists, the tenant could deposit the rent u/S 30 (1) of the Act and the benefit of such deposit could be available to him u/S 20 (4) of the Act. 7 In the present case, the contention of the landlord/plaintiff is, that the tenant did not tender any rent to him nor had he refused to accept the same when he had issued a notice dated 22.07.1989. Consequently, the deposit of Rs. 950/- made in Misc. Case No. 42 of 1987, was not in accordance with the provision of Section 30 (1) of the Act, the benefit of such deposit was not available u/S 20 (4) of the Act. In my opinion, the stand taken by the plaintiff is patently misconceived and the approach adopted by the courts below was wholly erroneous. In the first instance the notice dated 22/07/1989 has no relevance to the present controversy involved. The suit for eviction was instituted when the tenancy was determined pursuant to the notice dated 03/12/1990. The tenancy was not determined pursuant to the notice dated 22/07/1989. Further, the notice dated 22/07/1989 gets wiped out when a fresh notice dated 03/12/1990 was issued. Consequently, it becomes irrelevant whether the deposit made pursuant to the notice dated 22/07/1989 was in consonance to the provision of sub-section (1) of Section 30 of the Act. In the light of the aforesaid, all deposit made u/S 30 of the Act prior to the issuance of the notice dated 03/12/1990 and institution of the suit can be taken into consideration u/S 20 (4) of the Act. Such deposit made is valid and benefit has to be given u/S 20 (4) of the Act. Even otherwise, the court finds that pursuant to the notice dated 22/07/1989, the petitioner gave a reply indicating therein that he was willing to pay the rent to the landlord provided the landlord issued a receipt for the rent received. Since no reply was given by the landlord, the petitioner, accordingly made the deposit u/S 30. In my opinion, the willingness of the petitioner to pay the rent was a valid tender u/S 30 (4) and non reply of the landlord to 8 the said tender of the petitioner tantamounts to a refusal on his behalf. Consequently, the court is of the opinion that the ingredients stipulated u/S 30 of the Act was existing and the petitioner was justified in depositing the rent u/S 30 of the Act. In Kamleshwar Singh Srivastava Vs. IVth Addl. District Judge, Lucknow and others, 1987 SC & FB Rent Cases 34, the Supreme Court held :- “It is true that on service of the landlord's notice of demand on 8.9.82 the appellant did not tender the amount to the respondents, instead he gave a reply on 6.9.82 stating therein that he was willing to pay the rent to the landlord, Prabhat Kumar, respondent no. 3 if he expressed his willingness in writing to accept the same. The appellant's insistence in requesting Prabhat Kumar to signify his willingness in writing appears to be founded on the provision of sec. 30(1) of the Act. It is noteworthy that in his notice dt. 6.9.82 the appellant had clearly stated that he was ready and willing to pay the rent to Prabhat Kumar if he signified his willingness in writing to accept the rent within a reasonable time otherwise he would deposit the same in the Munsif's court in Misc. Case no. 57 of 1978. Admittedly the appellant's notice dt. 6.9.82 was served on the respondent-landlords but no reply was sent to the appellant, instead they filed suit for his eviction. Since no reply was received by the appellant from the land-lords he, deposited the arrears of rent in the Munsif's court in Misc. Case No. 57/78. In the face of these facts and circumstances it would be unjust to hold the appellant in arrears of rent, rendering him liable to eviction. It is true that on landlord's serving notice of demand on a tenant who may be in arrears of rent for a period of more than four months and on the tenant's failure to tender the rent to the landlord within one month from the service of the notice the tenant is liable to eviction, but in the instant case having regard to the special facts and circumstances available on the record we do not find that the appellant failed to tender the rent to the landlords or that he was in arrear for a period of more than four months. He was all along ready to pay and since the landlords did not give any reply to his notice dt. 6.9.82 he was justified in depositing the arrear in the Munsif's court. Since the deposit was made it must be deemed that the appellant had tendered rent to the landlords as contemplated by sec. 13(6) of the Act. In this view the High Court as well as the courts below committed error in 9 holding that the appellant had failed to pay arrears of rent for a period of more than four months and on that ground he was liable to ejectment from the premises in dispute.” The aforesaid decision is squarely applicable on all fronts in the facts and circumstances of the present case. In view of the aforesaid, this court is of the opinion that a valid deposit had been made u/S 30 by the petitioner which benefit was liable to be given u/S 20 (4) of the Act. The court finds that the amount deposited u/S 30 if adjusted u/S 20 (4), the petitioner gets relieved against his liability for eviction on the ground of arrears of rent. Accordingly, the impugned orders cannot be sustained and are quashed. The writ petition is allowed. In the circumstances of the case, parties shall bear their own cost. (Tarun Agarwala, J.) Dated 9th September, 2010 Shiv