Citation Codes

Equivalent Citations

citation codes

Case Number

Second Appeal No. 2511 of 1966

Attorney(S)

B.R. Awasthi
L.P. Singh
J.N. Agarwala and Yogesh Agarwal
Gur Pratap Singh

Judges

R.B Misra, J.

Acts

Sec. 3(1)(a) of the U.P (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act).
Sec. 7-C of the U.P (Temporary) Control of Rent and Eviction Act
Rule 781(1) Note 3 of the Railway Establishment Code
Clause (b) of Order 21, Rule 1, C.P.C
Order 21, Rule 1, C.P.C provides:(1)
Order 21, Rule 1, C.P.C15.
Order 41, Rule 5(2), C.P.C
clause (a) of sub-rule (1),
Order 21, Rule 1, C.P.C
Order 11, Rule 1, C.P.C

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Smart Summary

Judicial Opinion Summary — R.B. Misra, J.

Factual and Procedural Background

The landlords (Bhikha Lal and others, plaintiff-appellants) owned premises No. 105/336, Chamanganj, Kanpur. Munna Lal (defendant-respondent) was a tenant of a portion of that premises at a monthly rent of Rs. 5/-. The tenant fell into arrears and the landlords filed Suit No. 570 of 1961 for ejectment and recovery of arrears and damages, amounting to Rs. 89.75 P. The Munsif decreed the suit. The tenant appealed to the District Judge and, on application, obtained an interim stay of delivery of possession on condition that he deposit the entire decretal amount with costs and pendente lite and mesne profits (Rs. 5/- per mensem from 9 March 1971) within a specified period and continue to deposit Rs. 5/- every month; default would vacate the stay.

Pursuant to that interim order the tenant deposited Rs. 240/-, but in the appellate court rather than the trial court. On final disposal the appeal was partly allowed—the decree for ejectment was set aside—but the decree for recovery of arrears of Rs. 89.75 P. remained.

Subsequently the tenant again fell into arrears. The landlords served a fresh notice dated 17 July 1963 demanding past arrears of Rs. 89.75 P. (decretal amount) and further arrears of Rs. 35/- for seven months (total Rs. 124.75 P.). The tenant replied (6 August 1963) stating that Rs. 89.75 P. had already been deposited in Court towards the decretal amount and that he had sent Rs. 35/- by Money Order; he also offered to give his consent to withdrawal if there were difficulties obtaining the money from the Court. The landlords did not respond and instituted a fresh ejectment suit alleging default under Sec. 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act (the Act).

At trial the 4th Additional Munsif held the tenant a defaulter under Sec. 3(1)(a) but found default only as to the Rs. 35/-. On appeal the 1st Additional Civil Judge held the tenant not a defaulter as to either item and decreed recovery of arrears. The landlords filed a second appeal to this Court.

A Single Judge of this Court queried whether a money order delayed in the postal system amounts to non-payment; he doubted the decision in Ratan Lal v. Jagannath Prasad (1967 A.L.J. 1029) and referred questions to a larger Bench. A Division Bench later had a difference of opinion between the two learned Judges on the first item (Rs. 89.75 P.); the present opinion, delivered by R.B. Misra, J., addresses whether the defendant-respondent committed default in payment of the decretal amount of Rs. 89.75 P. for the purposes of Sec. 3 of the Act.

Legal Issues Presented

Whether, on the facts and in the circumstances of the case, the defendant-respondent could be said to have committed a default in payment of arrears of the decretal amount amounting to Rs. 89.75 P. for purposes of Sec. 3 of the U.P. (Temporary) Control of Rent and Eviction Act?

Arguments of the Parties

Landlords' (Plaintiff-Appellants) Arguments

The tenant had not paid the arrears within one month of receipt of the notice and therefore was a defaulter under Sec. 3(1)(a) of the Act.
The deposit of Rs. 89.75 P. in Court could be treated as payment only if it satisfied the conditions of Order 21, Rule 1, C.P.C.; particularly, payment into Court is effective only if made in the manner envisaged by that provision (into the executing Court, or out of Court to the decree-holder, or otherwise as the decree-making Court directs), and where payment is made under clause (a) notice must be given to the decree-holder.
Implicitly: a deposit made as security (pursuant to an appellate stay) does not constitute payment to the decree-holder for the purposes of Sec. 3(1)(a).

Tenant's (Defendant-Respondent) Arguments

The amounted decretal sum of Rs. 89.75 P. had already been deposited pursuant to the interim order of the District Judge (security in appeal) and therefore the tenant was not a defaulter as to that item.
He had also sent the subsequent arrears of Rs. 35/- by Money Order within the prescribed time and had offered to assist the landlords in withdrawing the deposited sum; thus he had complied within thirty days of the demand.
If the landlords had any difficulty obtaining the deposited amount from Court, the tenant offered to give his consent for withdrawal — a willingness communicated well within the statutory period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ratan Lal v. Jagannath Prasad, 1967 A.L.J. 1029	Held by a Division Bench that the Post Office is the agent of the remitter; negligence by the agent causing delay could make the remitter a defaulter under Sec. 3(1)(a).	The Single Judge doubted the correctness of that decision and referred questions to a larger Bench; the present Court noted the difference of opinion and did not adopt that principle conclusively for the Rs. 89.75 item.
Behari Lal v. Babu Ram, 1964 A.L.J. 458	Authority for the proposition that a decretal amount in an earlier suit can be treated as arrears of rent within Sec. 3(1)(a).	Cited to affirm that the decretal amount of Rs. 89.75 P. is, as a matter of law, an arrear of rent for the purposes of Sec. 3(1)(a).
Chhedi Lal v. L. Chhakki Lal, 1952 A.L.J. 701	Similarly cited on the legal characterisation of decretal amounts as arrears of rent.	Used with Behari Lal to show settled law that the decretal amount constitutes arrears for Sec. 3(1)(a).
P.S.L. Ramanathan Chettiar v. O.R.M.P.R.M. Ramanathan Chettiar, A.I.R. 1968 S.C. 1047	Held that a judgment-debtor's deposit in court as security for stay does not pass title to the decree-holder; the decree-holder can draw it out in terms of the order, but until drawn out it does not become his property; the judgment-debtor may withdraw by furnishing other security if permitted.	Relied upon to support the proposition that a deposit made by a judgment-debtor as security for stay does not ipso facto satisfy the decree-holder's title; therefore such deposit is not payment under Order 21, Rule 1, C.P.C. without further order.
Tika Rajpal Singh v. Basdeo (citation in text incomplete)	Discussed the effect of deposits in a prior suit: deposits made in a prior suit (not under specific order) do not, in general, satisfy a subsequent notice demand for rent.	The Court distinguished its facts from Tika Rajpal Singh because in the present case the deposit was made pursuant to an appellate stay and was security for the decretal amount; thus Tika Rajpal Singh was held not to aid the landlords on these facts.
Ram Rao v. Kundanmul (citation in text incomplete)	Support for the view that furnishing security under Order 41, Rule 5(2), C.P.C. does not amount to payment into Court under Order 21, Rule 1, C.P.C.	Cited to support the principle that a security deposit in appeal does not ipso facto satisfy the decree and cannot be treated as payment without court action.
Laxmi Narain v. Sita Ram, 1966 A.L.J. 321	Held that after a decree for ejectment and pending appeal the tenant cannot render rent directly to the landlord but must deposit under court authority; if tenant points out deposit and offers help to withdraw and landlord rejects and sues for ejectment, court will not hold tenant failed to pay.	Applied to show that a tenant who has placed funds under court authority and offers assistance to withdraw should not be treated as a defaulter when the landlord refuses and files suit.
Abdul Baqi v. Akhlaq Ahmad, 1962 A.L.J. 1146	Established that tender of full payment within the time prescribed (tender at creditor's house) constitutes compliance with a notice requiring payment within a time period.	Used to support the proposition that a timely tender or demonstrable effort to make payment within the statutory period satisfies Sec. 3(1)(a) requirements.
Balwant Raj v. Union of India (citation in text incomplete)	Interpreted the phrase "fails to resume duty" strictly so as to exclude failure due to causes beyond the person's control; principle of interpreting penal/terminating rules narrowly and equitably.	Referred to analogically to justify construing Sec. 3(1)(a) in a manner advancing legislative intent and avoiding an oppressive construction that would penalise a tenant despite demonstrable steps taken to effect payment.

Court's Reasoning and Analysis

The Court proceeded through layered legal and factual analysis, applying statutory provisions, procedural rules of the C.P.C. and precedents as follows:

Characterisation of the decretal amount: The Court accepted (with citation to Behari Lal and Chhedi Lal) that the decretal sum of Rs. 89.75 P. is an arrear of rent for the purposes of Sec. 3(1)(a) of the Act.
Examination of timing and form of payment: The Court noted the tenant had deposited Rs. 240 (later leaving in deposit an amount sufficient to cover Rs. 89.75 P.) pursuant to an appellate stay order before the landlords' fresh notice was served; therefore the deposit predated the demand.
Legal significance of deposit-in-court made as security in appeal: The Court analysed Order 21, Rule 1, C.P.C. (modes of payment of a decretal sum) and contrasted it with the nature of the deposit made under the appellate stay (Order 41, Rule 5(2), C.P.C.). It observed that Order 21, Rule 1 contemplates modes by which a decree-holder may be paid and that a deposit made merely as security for stay does not transfer title of the sum to the decree-holder automatically. The Supreme Court's observation in P.S.L. Ramanathan Chettiar was invoked to show that such deposits do not pass title to the decree-holder absent steps to execute the decree against the deposit.
Distinguishing precedent on deposits in prior suits: The Court considered Tika Rajpal Singh, where deposits in a prior, unrelated suit were held not to satisfy a notice demand, but found it distinguishable because in the present case the deposit was made pursuant to an order in the same litigation as security for the decretal amount.
Tender/assistance to withdraw as equivalent to compliance: The Court relied upon authorities (Laxmi Narain; Abdul Baqi) that treat timely tender or demonstrable compliance acts (including depositing under court authority and offering assistance to effect withdrawal) as compliance with a statutory demand. The tenant had informed the landlords within thirty days that the amount was deposited and offered consent/assistance to withdraw if necessary.
Equitable construction of Sec. 3(1)(a): The Court emphasised the protective intent of Sec. 3(1)(a) (to give relief to tenants) and applied a construction favouring the tenant. It reasoned that Sec. 3(1)(a) should not be interpreted oppressively to penalise a tenant who, though technically the money remained in court as security, had taken timely steps to place the amount at the landlords' disposal and had offered cooperation to withdraw it.
Effect of landlords' conduct: The Court considered the landlords' failure to respond to the tenant's reply and their choice to institute ejectment proceedings instead of insisting on the formal withdrawal process. The court stressed that landlords should not be permitted to take advantage of their own conduct to brand the tenant a defaulter.
Conclusion on default: Balancing the procedural rules, precedents and equitable considerations, the Court concluded that the deposit made by the tenant as security and his prompt communication and offer to assist withdrawal amounted to compliance for the purposes of Sec. 3(1)(a) and therefore he could not be held a defaulter as to the decretal amount of Rs. 89.75 P.

Holding and Implications

Holding: On the facts and in the circumstances of the case, the defendant-respondent could not be said to have committed a default in payment of arrears of the decretal amount amounting to Rs. 89.75 P. for purposes of Sec. 3 of the Act.

Implications:

Direct effect: The tenant (defendant-respondent) is not a defaulter under Sec. 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act with respect to the decretal amount of Rs. 89.75 P.; the landlords could not rely on that ground alone to obtain ejectment on this item.
Reasoning scope: The decision rests on the particular factual matrix—the deposit made as security pursuant to an appellate stay, the tenant's timely communication and offer to assist withdrawal, and the landlords' failure to act on that offer. The Court explicitly distinguished earlier authorities where deposits in unrelated proceedings or voluntary deposits without court direction were held not to satisfy a notice.
Precedential note: The opinion does not claim to lay down a broad new rule beyond its application to these facts; it applies existing principles (including those in P.S.L. Ramanathan Chettiar, Laxmi Narain, Abdul Baqi) and interprets Sec. 3(1)(a) in an equitable manner to effect legislative intent. No sweeping change of law is announced in the text of this opinion.

Question answered.

Show full summary ...

Bhikha Lal And Others v. Munna Lal .

R.B Misra, J.:— On a difference of opinion between R.L Gulati and H.N Seth, JJ., the following question has been referred to me for opinion by, the Acting Chief Justice:—

“Whether on the facts and in the circumstances of the case the defendant-respondent could be said to have committed a default in payment of arrears of the decretal amount amounting to Rs. 89.75 for purposes of Sec. 3 of the Rent Control and Eviction Act?”

2. The material facts to bring about the question referred to me are as follows:

3. Munna Lal, defendant-respondent, was a tenant of a portion of premises No. 105/336, Chamanganj, Kanpur, at a monthly rent of Rs. 5/-. This house is owned by Bhikha Lal and others, plaintiff-appellants. It appears that the tenant fell in arrears. The landlords, therefore, filed a suit, which was, later on, numbered as Suit No. 570 of 1961, for ejectment and for recovery of the arrears of rent and damages for use and occupation, amounting to Rs. 89.75 P. The suit was decreed by the Munsif. The tenant went up in appeal before the District Judge. He also applied for the stay of the execution of the decree pending the disposal of the appeal. The District Judge granted an interim order staying the delivery of possession provided the tenant deposited in the trial court the entire decretal amount with costs and pendente lite and mesne profits at the rate of Rs. 5/- per mensem from 9th March, 1971, within a specified period and continued to deposit the same at the rate of Rs. 5/- every month. In case of default, the stay order was to stand vacated. Pursuant to the interim order, the tenant deposited a sum of Rs. 240/- not in the trial court, but in the appellate court. At long last, the appeal was partly allowed and the decree for ejectment was set aside. The suit for recovery of arrears of rent amounting to As. 89.75 P., however, stood decreed.

4. It appears that the tenant again fell in arrears. The landlords, therefore sent a fresh notice dated 17th July, 1963, through a Vakil demanding the past arrears of Rs. 89.75 (representing the decretal amount) and subsequent arrears for seven months from 25th November, 1962, to June, 1963, to the tune of Rs. 35/- (total arrears of rent amounting to Rs. 124.75 P.). The notice was duly served on the tenant. The tenant sent a reply dated 6th August, 1963, through a Vakil, informing the landlords that the amount of Rs. 89.75 P., had already been deposited towards the decretal amount in Court and he had sent the other amount of Rs. 35/- by Money Order. It was definitely stated in the reply that if there was any difficulty in getting the amount from the Court, he was prepared to give his consent for withdrawal. The landlords did not respond to this letter and filed a suit for the eviction of the tenant treating him to be a defaulter within the meaning of Sec. 3(1)(a) of the U.P (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act). The suit was contested by the tenant on the ground, inter alia, that he had already deposited the sum of Rs. 89.75 P., and sent the other amount of Rs. 35/- by Money Order well within thirty days of the receipt of the notice, but the landlords refused to accept the same and, therefore, he was not a defaulter within the meaning of Sec. 3(1)(a) of the Act.

5. The 4th Additional Munsif, who tried the suit, decreed the same holding the tenant to be a defaulter within the meaning of Sec. 3(1)(a) of the Act. He, however, found him to be a defaulter in respect if the second item of Rs. 35/- and not in respect of the first item of Rs. 89.75 P. On appeal by the tenant, the 1st Additional Civil Judge modified the decree of the trial court. He set aside the decree for ejectment holding that the tenant was not a defaulter in respect of any of the two items. The suit, however stood decreed for arrears of rent. The landlords came up in Second Appeal to this Court against the judgment and decree of the 1st Additional Civil Judge.

6. The appeal came up for hearin before a learned Single Judge of this Court. The point raised on behalf of the landlords was that the tenant failed to pay both the amounts of arrears of rent within one month of the receipt of the notice of demand and he was thus a defaulter within the meaning of Sec. 3(1)(a) of the Act. The learned Single Judge was of the view that if the tenant sent the arrears of rent by Money Order well within time, it cannot be said that he had failed to pay the said amount within the period prescribed, merely because the money order reached the addressee a bit late on account of the delay on the part of the postal department.

7. In Ratan Lal v. Jagannath Prasad . 1967 A.L.J 1029. a Division Bench took the view that the Post Office is the agent of the remitter and thus if on account of the negligence of the agent of the tenant, the money could not reach the landlord within the time, he would be a defaulter within the meaning of Sec. 3(1)(a) of the Act. The learned Single Judge doubted the correctness of that decision. He, therefore, framed certain questions and referred the same to a larger Bench. The case was laid before a Division Bench. There was, however, a difference of opinion between the two learned Judges on the first item of Rs. 49.75 P. I am, therefore, concerned only with the first item of Rs. 89.75 P., and not with the arrears of the other amount of Rs. 35/-.

8. It will be convenient, at this stage, oread Sec. 3 of the Act. In so far as it material for the purposes of this case it reads:

“3(1)(a), that the tenant is in arrears if rent for more than three months and has failed to pay the same to the landlord ??? one month of the service upon him of a notice of demand;”

9. The amount of Rs. 89.75 P., representing the decretal amount in the earlier lit is arrears of rent within the meaning of Sec. 3(1)(a) of the Act is now well setred by the authorities of this Court. A reference may be made, in this connection, to Behari Lal v. Babu Ram . 1964 A.L.J 458. and Chhedi Lal v. L. Chhakki Lal . 1952 A.L.J 701..

10. Now, the next question is whether this amount had been paid within one month of the receipt of the notice of demand. As stated earlier, the tenant had deposited this amount pursuant to the interim order granted by the District Judge in appeal. This amount had, therefore, been already deposited much before the receipt of the notice of demand. The tenant informed the landlords well within thirty days that the said amount was lying in deposit and the same could be withdrawn by the landlords and in case of any difficulty he was prepared to give his consent. It is true that in the notice of demand sent by the landlords, it was stated that they tried to recover the amount, but it was not possible on account of the technical objections raised by the clerk concerned. But when the tenant showed his readiness to render all possible help to the landlords, for the withdrawal of the said amount by the landlords, the landlords did not respond to the reply and instead filed the suit.

11. If the deposit of this amount in Court would satisfy the requirements of Sec. 3(1)(a) of the Act is the real question to be considered.

12. For the landlords, it has been contended that the deposit of the amount of Rs. 89.75 P. can be payment within the meaning of Sec. 3(1)(a) of the Act only if it satisfies the conditions of Order 21, Rule 1, C.P.C provides:

“(1) All money payable under a decree shall be paid as follows, namely:—

(a) into the Court whose duty it is to execute the decree; or

(b) out of Court to the decree-holder; or

(2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder.”

13. The Allahabad High Court made the following amendment in Clause (b) of Order 21, Rule 1, C.P.C inasmuch as after the words ‘decree-holder’, the following was added:—

“through a bank or by postal money order or evidenced by a document.”

14. These are the three modes contemplated by Order 21, Rule 1, C.P.C for the payment of the decree. The deposit of the amount by way of security for the payment of the decretal amount would not be a payment within the meaning of Order 21, Rule 1, C.P.C

15. In support of his contention, reliance was placed on para 12 of the judgment of the Supreme Court in P.S.L Ramanathan Chettiar v. O.R.M.P.R.M Ramanathan Chettiar . A.I.R 1968 S.C 1047.. In that case, the Supreme Court observed:

“On principle, it appears to us that the facts of a judgment-debtor's depositing a sum in court to purchase peace by way of stay of execution of the decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the money to the decree-holder. He can if he likes take the money out in terms of the order; but so long as he does not do it, there is nothing to prevent the judgment-debtor from taking it out by furnishing other security, say, of immovable property, if the court allows him to do so and on his losing the appeal putting the decretal amount in court in terms of Order 21, Rule 1, C.P.C in satisfaction of the decree.”

16. Next reliance was placed on Tika Rajpal Singh v. Basdeo . ???. In that case, the landlord had filed an earlier suit for recovery of damages against the tenant on the ground that the defendant had damaged the property and as the landlord refused to accept the rent. The defendant had been depositing the rent as and when it became due in the court of Munsif under Sec. 7-C of the U.P (Temporary) Control of Rent and Eviction Act and he had already deposited a sum of Rs. 257/14/- to the credit of the plaintiff. When the landlord filed a suit for the ejectment of the tenant on the ground that he had failed to pay the arrears of rent within one month of the service of the notice of demand upon him, the tenant replied that he was not in arrears as he had already deposited. In these circumstances, the learned Single Judge observed:

“The tenant is, therefore, under an obligation to pay the arrears of rent to the landlord within one month of the receipt of the notice. Generally, it is the debtor who seeks out the creditor to pay the debt. That principle has been recognised by clause (a). Payment has to be made to the landlord. In the present case, the tenant did not make any payment to the landlord directly. He did not make any payment to the credit of the landlord under any directions of the landlord. The previous suit was for recovery of damages. It was not for ejectment or for recovery of rent of the premises in dispute. There was no claim by the plaintiff for any relief on the ground of non-payment of rent in satisfaction of which the tenant could legitimately make deposits of rent as and when it became due. The Court had passed no orders in the previous suit directing the tenant to deposit in Court the rent as and when it fell due. The tenant seems to have made the payment voluntarily without any affirmative indication from the landlord that he may satisfy the demand made by him by the notice, by depositing the money in court in the previous suit. Simply because the plaintiff made no objection to the tenant's action of depositing some money in that suit or because the court permitted the money to be deposited in court to the credit of the plaintiff in that case, could not mean that the tenant had satisfied the demand under the notice dated 3-9-1956. The deposits made in the previous suit could, in the absence of any specific order, at the best, charge of any decree for damages or that may be passed in that suit.”

17. The facts of that case are materially different from the facts of the present case. In the present case, the landlord had filed the suit for the ejectment and for recovery of arrears of rent from the tenant and against the decree of the trial court, when he filed an appeal, he applied for stay and in pursuance of the order of the Court, he deposited the said amount by way of security. Therefore, the deposit of the amount was, at any rate, a security for the payment of the arrears of rent due in that case. That case, therefore, is not of much help in the present case.

18. It is true that the furnishing of security for the decretal amount under Order 41, Rule 5(2), C.P.C does not amount to payment into Court within the meaning of Order 21, Rule 1, C.P.C It could not be said that immediately the security was furnished, the decree was satisfied. The security serves only as an indemnity against non-payment of the decretal amount. The decree holder could not proceed against the security until the appeal was disposed of. This view is supported by Ram Rao v. Kundanmul . ???.

19. The legal position therefore is that the amount deposited as security under this Rules does not, ipso facto, without an order of Court, become the property of the decree-holder. The decree-holder can withdraw the amount only by an application to the Court for executing his decree by payment out of the amount in deposit in Court as security. In the present case, I am not concerned whether the deposit of the amount was payment within the meaning of Order 11, Rule 1, C.P.C I am concerned with the question whether the deposit of the said amount in Court even by way of security amounts to payment of the said amount to the landlords within the meaning of Sec. 3(1)(a) of the Act.

20. The condition for ejectment of a tenant within the meaning of Sec. 3(1)(a) of the Act is that the tenant has failed to pay the arrears within one month of the receipt of notice. Can it be said the tenant has failed to pay the arrears within the meaning of Sec. 3(1)(a) of the Act? In Laxmi Narain v. Sita Ram . 1966 A.L.J 321., a learned Single Judge of this Court observed as follows:—

“After a decree for ejectment has been passed against him and he has appealed from it, a tenant is not entitled to lender any rent direct to the landlord who will refuse to treat him as a tenant in view of the decree; and he can pay rent only under the authority of the court and the only way in which he can pay it is by depositing the amount each month in Court. If subsequently the tenant, on a demand of rent from the landlord points out that he has already deposited the rent in court and offers his help in withdrawing it, but the landlord rejects this offer and files a suit for ejectment, the court will not hold that the tenant failed to pay the arrears of rent in spite of a notice of demand.”

21. In Abdul Baqi v. Akhlaq Ahmad . 1962 A.L.J 1146., a Division Bench of this Court, while dealing with Sec. 3(1)(a) of the Act, laid down the following principle.—

“In a case where a person is required to make a payment to another the duty of the former is to go to the house of the latter and tender payment, and if there be clear evidence that he did so it must be held that there was full compliance with the requirement of making the payment provided this was done within the time prescribed.

When the law contemplates payment within the time laid down in the notice it must be held that tendering of full payment within that time is complete compliance with the requirements of the notice.”

22. In Balwant Raj v. Union of India, the expression “fails to resume duty” within the meaning of Rule 781(1) Note 3 of the Railway Establishment Code came up for consideration by this Court and a learned Single Judge of this Court interpreted the expression as follows.—

“The words “fails to resume duty” apply only to a railway servant who by a voluntary and deliberate act or omission stays away from duty and fails to report and not to one who was prevented by a cause beyond his control to resume duty. It cannot apply to a servant who fell ill and was treated by the Railway in its own hospital under its own supervision and was discharged as fit for duty by its own officers after the expiry of the maximum period of leave due to him.

The words “fails to resume duty” cannot be given their literal meaning, which will include failure for any cause whatsoever irrespective of whether lie servant was to blame or not for several reasons. First, where two interpretations of a rule are possible the court should accept the one which is consistent with equity, justice and good conscience and reject the one which will make rule oppressive. Secondly, as the enforcement of this rule may deprive a railway employee of his means of livelihood by the automatic termination of his services under certain circumstances, the words “fails to resume duty” should be strictly interpreted and limited to a voluntary and deliberate act or omission resulting in failure to resume duty. Thirdly, and this is the most important reason of all, the rule must be interpreted in accordance with letter and spirit of the Directive Principles of State Policy proclaimed by the Constitution.”

23. In the instant case, the tenant had deposited a sum of Rs. 240/-. Later on, he withdrew a part of the amount so deposited and left money sufficient to cover the decretal amount. That money was never withdrawn by the tenant and in reply to the notice, as stated earlier, he definitely said that if there was any ??? pared to give his consent. No technical objection could have stood in the way if the landlords had asked the tenant to give his consent, but the landlords did not chose that and instead filed the suit for his ejectment straight away. Sec. 3(1)(a) of the Act was made to give relief to the tenant. Even if he had fallen in arrears for more than three months, he could save his tenancy by paying the amount within one month of the receipt of the notice of demand. This section should, therefore, in my opinion, be construed in a manner to advance the intention of the Legislature and should not be used to penalise him. If the landlords had responded to the reply of the tenant and insisted on payment, just possible the tenant would have paid the amount despite the fact that he had already deposited the amount by way of security. The landlords cannot take advantage of their own conduct and brand the tenant as a defaulter.

24. For the foregoing discussions, the answer to the question referred is as follows.—

25. On the facts and in the circumstances of the case, the defendant-respondent could not be said to have committed a default in payment of arrears of the decretal amount amounting to Rs, 89.75 P. for purposes of Sec. 3 of the Act.

Question answered.

Bhikha Lal And Others v. Munna Lal .

Judicial Opinion Summary — R.B. Misra, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Landlords' (Plaintiff-Appellants) Arguments

Tenant's (Defendant-Respondent) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bhikha Lal And Others v. Munna Lal .

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