Case: Mangal Sen Vs. Kanchhid Mal

to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge.6. After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had not put forwa rd any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972. The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly set aside by the District Judge.Before us, an additional point was sought to be raised by the appellant which had not been put forward by him either before the trial court or before the District Judge at the revisional stage. It was urged that on the date of first hearing of the suit the defendant had deposited into the trial court an amount of Rs. 1, 980/- and hence he is entitled to the benefit of sub-section (4) of Section 20 of the Act which empowers the Court to pass an order relieving the tenant against his liability for eviction on the ground mentioned in clause (a) of sub-section (2) of the said Section. It is necessary in this context to reproduce clause (a) of sub-section (2) and sub-section (4) of Section 20 of the Act. They are in the following terms:"20 (2)..........................................(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand.(4) 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 the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rat e as rent) together with interest thereon at the rate of nine per cent per annum and the landlords costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub- section (I) 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:Provided that nothing in this sub-sect ion 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."The provisions of sub-section (4) will get attracted only if the tenant has, at the first hearing of the suit, unconditionally paid or tendered to the landlord the entire amount of rent and damages for use an d occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlords costs of the suit in respect thereof, after deducting therefrom any amount already deposited by him under sub-section (I) of Section 30. There is absolutely no material available on the record to show that the alleged deposit of Rs. 1, 980/- was made by the tenant on the first date of hearing itself and, what is more important, that the said deposit was made by way of an unconditional tender for payment to the landlord. The deposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax, there was no default by him in the payment of rent. In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).7. In these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub-section (2) of the said Section.

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

Explanation:
0[ds]After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had not put forwa rd any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972. The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly setdeposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax, there was no default by him in the payment of rent. In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).n these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub-section (2) of the saidwould appear that, at the time of the preliminary hearing of the Special Leave Petition, the appellant realised that the Revision Petition filed by him before the High Court was not maintainable in law. Hence, this position was conceded by the appellant before a Bench which heard the Special Leave Petition and a request was made by the appellant for the grant of special leave to him to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge.