Case: Kaloo Etc Vs. Gauri Shankar

and the quantum or fact of rent being in arrears is not disputed, the only way the tenant can be saved from the threat of eviction is to pay up the rent demanded in the notice and to repair the default within the period of 30 days which constitutes locus poenitentiae for him.21. The question still survives whether on facts not in dispute the tenant could be said to have failed to pay the rent within the time stipulated by Section 3 (1) (a) after receipt of the notice of demand. Avoiding repetition, Bhola the tenant had sent a money order Ext. A-10 on September 28, 1965, in the amount of Rs. 20/- even prior to the receipt of the notice dated December 22, 1965. This tender was for rent for two months of July and August, 1965 at the admitted rate of Rs. 10/- p. m. Soon after the notice, a second money order Ext. A-11 in the amount of Rs. 60.69 p. was sent for the rent up to and inclusive of December 31, 1965. A third money order was sent for Rs. 80/- covering rent up to February, 1966. The first money order was prior to the notice and the second and third money orders were subsequent to the notice and they were all prior to the suit. All the three money orders were refused. But even before the suit was filed, Bhola approached the Court of Munsif under Sec. 7-C which enables a tenant who is attempting to pay rent but whose attempt is thwarted by the landlord by refusing to accept the rent tendered, to deposit the rent in the Court. S. 7-C (1) comprehends a situation where a landlord refuses to accept any rent lawfully paid to him by tenant and Section 7-C (2) comprehends a situation where any bona fide doubt or dispute has arisen as to the identity of the person who is entitled to receive any rent payable by the tenant. In both the situations the tenant can approach the Court of the Munsif having jurisdiction in the area where the accommodation is situated, under Section 7-C (3) and deposit the rent. On receipt of this deposit the Court has to serve a notice on the landlord and the deposit is for the benefit of the landlord who can withdraw the same at any time. Sub-sec. (6) provides that where deposit has been made either under S. 7-C (1) or S. 7-C (2) it shall be deemed that the rent has duly been paid to the landlord which would imply that the tenant is not in default so as to be denied the protection of the Rent Act.22. In this case the tenant Bhola tendered rent by three money orders. All the three were refused by the landlord and when called upon to explain why the rent tendered by money order was not accepted, a specious plea was taken that the money order was addressed to Gauri Shankar wali Sheo Narain, and Sheo Narain having nothing to do with the property, it was not a valid tender to the landlord. Is it a fair conduct of the landlord? If one recalls the observations of the trial Court extracted hereinbefore, the recitals in the sale deed under which the landlord purchased the suit property are misleading and likely to confuse any one reading the same. Yet the tenant even before the first demand by notice sent the money order addressed undoubtedly to the respondent with description of the respondent not very happy but one induced by his own sale deed. Was he justified in refusing the same? After refusing the money order when the notice was served, no. attempt was made to clarify the situation, a fact which has appealed to the trial Court in non-suiting the plaintiff. But if the sale deed is confusing and likely to mislead and if the landlord acquired property under such a sale deed where property purchased by Sheo Narain and the present respondent formed overlapping description, could it not be said that a bona fide doubt or dispute would arise as to the person who has purchased the property and would therefore be entitled to recover rent and would not Section 7-C (2) come into play to enable the tenant to deposit the rent in the court of the Munsif to save himself from the threat of eviction and which he unhesitatingly did undertake and deposited the rent? By what logic such a tenant could be said to be one who has failed to pay the rent either prior or subsequent to the notice? He took every possible step within his means and power to pay the rent. It would be a travesty of justice if on some hyper-technical consideration such an over-zealous tenant can be denied the protection of the rent Act. Any other interpretation of the conduct of the tenant may lead in given case to perversion of the Act, namely, adequate protection of the tenant. (See Shyamcharan Sharma V. Dharamdas), (1980) 2 SCR 334 at p. 338 : (AIR 1980 SC 587 ).23. The trial Court approached the matter in the correct perspective and dismissed the suit. The first appellate court merely noted the fact that the money orders sent in the name of Gauri Shankar wali Sheo Narain would not constitute legal tender of rent. The learned appellate Judge did not examine the effect of deposit made under S. 7-C and on the aforementioned short ground allowed the appeal and decreed eviction. Unfortunately, in the High Court the whole emphasis was placed on some almirah which, in our opinion, is a misplaced emphasis and hardly relevant for the decision of the appeal. Neither the effect of previous money orders nor the deposit under S. 7-C were examined by the High Court. The High Court affirmed the decree of the first appellate Court with this observation that the defendant tenant shall not be ejected from the almirah shown in map, Ext. C-24.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In examining this question it would be necessary to take into account remedy adopted by the tenant in each appeal under Sectionand whether in the facts and circumstances of the case each of the tenant is entitled to the benefit ofTo be able to successfully evict the tenant under this section, the landlord has to establish affirmatively (i) that the tenant is in arrears of rent for more than three months; (ii) a notice of demand has been served upon him; (iii) and the tenant has failed to pay the rent as in (i) to the landlord within one month from the date of the service of the notice. The tenant can successfullythe landlord by establishing that he was not in arrears of rent on the date of the notice or he has complied with the notice and if while complying with the notice he tenders the rent in arrears by a money order and the landlord refuses to accept the rent, the tenant can proceed to protect himself by initiating a proceeding under Sec.of the 1947 Act. Benefit conferred by S.can also be availed of by the tenant where a bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent payable by the tenant.Landlord Gauri Shankar claims to have purchased the suit property on July 29, 1965, from Shital and Gauri Devi who in turn had purchased the same from one Brij Mohan who had inducted Bhola as the tenant. Except the notice claiming rent there is no. material on record to show whether the vendors of respondent landlord gave any intimation to Bhola as to whom the property was sold and to whom he must pay rent and getThis finding was not questioned by reading out the sale deed of the building in question to us. In the background of this finding of the trial Court the conduct of tenant Bhola may be examined. The respondent landlord complained that tenant Bhola was in arrears from September 1, 1964. Keeping aside for the time being the question of arrears when Brij Mohan was the landlord, the case may be examined from the stand point of the present landlord, from the time he became entitled to recover rent. That would be from the date of the purchase unless he is in a position to show that he has purchased the previous arrears of rent. The sale deed under which respondent claims to be the landlord is dated July 29, 1965. Bhola sent the money order for Rs. 20/0 on September 28, 1965, as rent for the months of July and August, 1965 at the rate of Rs. 10/p. m. which is the admitted monthly rent. Respondent refused to accept the rent so tendered. This was tendered prior to notice Ext. 9 dated December 12, 1965. Bhola again sent a second money order Ext.in the amount of Rs. 60.69 p. for the rent up to and inclusive of December 31, 1965. This was refused by the respondent. A third money order was sent for Rs. 80/covering rent up to February, 1966. This was also refused by the respondent. It was said on behalf of the respondent that the money order was addressed in the name of Gauri Shankar wali Sheo Narain and as the respondent Gauri Shankar was the sole and exclusive owner of the demised property the rent tendered to him in his capacity as the guardian of some minor who had no. interest in the property cannot be said to be legal tender to the landlord and the landlord was justified in refusing to accept the rent. If the matter were to rest here, one could have discovered microscopic justification for the conduct of the landlord but Bhola did not stop by merely sending the money orders. On refusal of three successive money orders, he took the only legal and logical subsequent, step of moving an application under Sectionof the 1947 Act. He had acontention to offer in the proceeding he initiated under Sec.According to him the landlord unjustifiably refused to accept the rent offered by money order, a situation covered by(1) of Sectionand in any event if the sale deed under which the landlord purchased the property gave a misleading account as to who was the purchaser, there would be a bona fide doubt as to the person to whom rent was payable on purchase of the demised property, a situation comprehended in subsection (2) of Sectionand according to him both Ss.(1) and (2) would come into play, and, therefore, he deposited rent in the Court of the Munsif having jurisdiction over the area where the accommodation was situated. That Bhola initiated such a proceeding and made a full deposit is not in dispute. The grievance is that as the refusal to accept the rent was justified and that there was not the slightest doubt as to the identity of the person who was entitled to recover the rent and therefore the proceeding initiated by Bhola under Sectionis misconceived and would not protect him. Said the learned counsel for the respondent, that in this background Bhola and the present appellant claiming through Bhola, is not entitled to the benefit of(6) of Sectionwhich provides that in any case where a deposit has been made as set out in Section(1) or (2), it shall be deemed that the rent has been fully paid by the tenant to the landlord, but Bhola cannot be relieved from the consequences of his ownsubmission, weighty by itself, would have necessitated a thorough analysis of the expression used in Section 3 (1) (a) but in view of the legislative exposition as far as the 1947 Act is concerned, the submission is not open to the learned counsel for the appellant. When the Act was enacted in 1947, Section 3 (1) (a) read as underThe glaring legislative exposition is the deletion of the word "wilfully" and the omission seems to be deliberate inasmuch as the legislative intention becomes manifestly clear that once a notice of demand is made obligatory before an action for ejectment is filed for default in payment of rent, the tenant is given one months time to repair the default and he cannot further be heard to say that the failure was unintentional. As thenow stands, once a notice of demand is served and the quantum or fact of rent being in arrears is not disputed, the only way the tenant can be saved from the threat of eviction is to pay up the rent demanded in the notice and to repair the default within the period of 30 days which constitutes locus poenitentiae forrepetition, Bhola the tenant had sent a money order Ext.on September 28, 1965, in the amount of Rs. 20/even prior to the receipt of the notice dated December 22, 1965. This tender was for rent for two months of July and August, 1965 at the admitted rate of Rs. 10/p. m. Soon after the notice, a second money order Ext.in the amount of Rs. 60.69 p. was sent for the rent up to and inclusive of December 31, 1965. A third money order was sent for Rs. 80/covering rent up to February, 1966. The first money order was prior to the notice and the second and third money orders were subsequent to the notice and they were all prior to the suit. All the three money orders were refused. But even before the suit was filed, Bhola approached the Court of Munsif under Sec.which enables a tenant who is attempting to pay rent but whose attempt is thwarted by the landlord by refusing to accept the rent tendered, to deposit the rent in the Court. S.(1) comprehends a situation where a landlord refuses to accept any rent lawfully paid to him by tenant and Section(2) comprehends a situation where any bona fide doubt or dispute has arisen as to the identity of the person who is entitled to receive any rent payable by the tenant. In both the situations the tenant can approach the Court of the Munsif having jurisdiction in the area where the accommodation is situated, under Section(3) and deposit the rent. On receipt of this deposit the Court has to serve a notice on the landlord and the deposit is for the benefit of the landlord who can withdraw the same at any time.(6) provides that where deposit has been made either under S.(1) or S.(2) it shall be deemed that the rent has duly been paid to the landlord which would imply that the tenant is not in default so as to be denied the protection of the Rent Act.22. In this case the tenant Bhola tendered rent by three money orders. All the three were refused by the landlord and when called upon to explain why the rent tendered by money order was not accepted, a specious plea was taken that the money order was addressed to Gauri Shankar wali Sheo Narain, and Sheo Narain having nothing to do with the property, it was not a valid tender to the landlord. Is it a fair conduct of the landlord? If one recalls the observations of the trial Court extracted hereinbefore, the recitals in the sale deed under which the landlord purchased the suit property are misleading and likely to confuse any one reading the same. Yet the tenant even before the first demand by notice sent the money order addressed undoubtedly to the respondent with description of the respondent not very happy but one induced by his own sale deed. Was he justified in refusing the same? After refusing the money order when the notice was served, no. attempt was made to clarify the situation, a fact which has appealed to the trial Court inthe plaintiff. But if the sale deed is confusing and likely to mislead and if the landlord acquired property under such a sale deed where property purchased by Sheo Narain and the present respondent formed overlapping description, could it not be said that a bona fide doubt or dispute would arise as to the person who has purchased the property and would therefore be entitled to recover rent and would not Section(2) come into play to enable the tenant to deposit the rent in the court of the Munsif to save himself from the threat of eviction and which he unhesitatingly did undertake and deposited the rent? By what logic such a tenant could be said to be one who has failed to pay the rent either prior or subsequent to the notice? He took every possible step within his means and power to pay the rent. It would be a travesty of justice if on someconsideration such antenant can be denied the protection of the rent Act. Any other interpretation of the conduct of the tenant may lead in given case to perversion of the Act, namely, adequate protection of the tenant. (See Shyamcharan Sharma V. Dharamdas), (1980) 2 SCR 334     at p. 338 : (AIR 1980 SC 587  ).23. The trial Court approached the matter in the correct perspective and dismissed the suit. The first appellate court merely noted the fact that the money orders sent in the name of  Gauri Shankar wali Sheo Narain would not constitute legal tender of rent. The learned appellate Judge did not examine the effect of deposit made under S.and on the aforementioned short ground allowed the appeal and decreed eviction. Unfortunately, in the High Court the whole emphasis was placed on some almirah which, in our opinion, is a misplaced emphasis and hardly relevant for the decision of the appeal. Neither the effect of previous money orders nor the deposit under S.In the facts set out above, could this tenant be said to be the one who has failed to pay the rent and was to be denied the protection of the Rent Act.27. Facts herein set out clearly show that the reasons which appealed to us in the case of the connected appeal would mutatis mutandis apply here. Therefore, for the same reasons, this appeal will have to be allowed and the decree of the High Court and the first appellate Court would have to be set aside and the one passed by the trial Court has to be restored.