Smt. Ram Piari And Others v. Narendra Kumar

M.P. Saxena, J.-

This is a defendant's revision application under Section 115 of the Civil Procedure Code against the judgment and order dated August 2, 1974 passed by the learned First Additional District Judge, Bulandshahr.

Briefly stated the facts giving rise to this revision application are that one Ganga Prasad, since decreed, was a tenant of the shop in suit on a monthly rent of Rs. 351- and Rs. 2|80 as Bhumi Bhaven Kar. On August 11, 1970 the plaintiff opposite party, who is the landlord, terminated his tenancy by means of a notice which was served on him on August 14, 1970. Ganga Prasad died on October 12, 1971. On November IV, 1971 the plaintiff opposite party filed a suit for possession over the shop, for recovery of Rs. 155|- as arrears of rent from May 1, 1970 to September 13, 1970 Rs. 4921- as damages for use and occupation from Sept. 1970 to the date of the suit and Rs. 51,80 as Bhumi Bhavan Kar from May 1, 1970. Smt. Ram Piari defendant No. 1 was arrayed as widow of Ganga Prasad, Krishna Murari defendant No. 2 was arrayed as adopted son of Ganga Prasad and Brij Kishore, defendant No. 3 was impleaded because he is the brother of defendant No. 1 and occupies the shop with other defen­dants. It was alleged that they were not the tenants of the shop in suit.

The defendants contested the suit, inter alia, on the ground that the tenancy of Ganga Prasad was never validly terminated and after his death the tenancy rights devolved on defendants Nos. 1 and 2, that even if any notice was given it was waived as rent upto. November 1971 was only paid and, lastly, that the suit was barred by Section 3 of Act III of 1947 or Section 20 of Act XIII of 1972,

The learned Trial Court held that after the death of Ganga Pra­sad, the tenancy rights devolved on the defendants as his heirs and they became tenants of the shop; that the provisions of Act III of 1974 applies to it and as no ground for ejectment was made out, the suit for eviction could not be decreed. Accordingly suit for posses­sion and recovery of Bhumi Bhavan Kar and damages for use and occupation was dismissed but it was decreed for the recovery of Rs. 1551- a-s arrears of rent from May 1, 1970 to September 13, 1970.

The plaintiff filed a revision under Section 25 of the Small Cause Court Act. The learned revisional court held that after the determination of his tenancy, Ganga Prasad became a statutory ten­ant and as statutory tenancy rights are not heritable the defendants did not become tenants and were not entitled to the benefits of Act III of 1947 or U.P. Act XIII of 1972. It was further held that rent upto November 1, 1971 was paid and the learned trial court was wrong in decreeing the suit for recovery of Rs. 1551-. It accordingly decreed the suit for possession over the shop but dismissed it in res­pect of rent. The parties were made to hear their own costs of the revision. The defendants have now come up in revision.

There is no controversy that Ganga Prasad was the original contractual tenant of the disputed shop, on Aug. 11, 1970 a notice de­manding arrears of rent and terminating his tenancy on the expiry 30 days from the date of service of that notice was given to him by the plaintiff. It was served on Ganga Prasad on August 14, 1970 and his tenancy obviously came to an end on September 13, 1970. The service of notice on Ganga Prasad is proved by the postal acknow­ledgment receipt. The notice does not suffer from any infirmity. After receiving this notice, Ganga Prasad remitted rent for the months of May, June, July and August, 1970 which was received by the plaintiff on September 3, 1970. Since the entire rent due upto the end of Aug. 11, 1970 was paid Ganga Prasad could not be evicted on the ground of default. However, his contractual tenancy came to an end on September 13, 1970 and thereafter he became statutory ten­ant. Admittedly he died on October 12, 1971 leaving behind the re­visionist No. 1 as his widow and revisionist No. 2 as his adopted son. It may be stated here that revisionist No. 3 is not the legal heir of Ganga Prasad and the question of his inheriting the tenancy rights cannot arise. The question for consideration is whether on the death of Ganga Prasad the tenancy rights devolved on the defen­dants-revisionist Nos. 1 and 2. As stated above, Ganga Prasad had become a statutory tenant after September 13, 1970. The position of such a tenant has been considered in a number of cases. In the case of Rai Khusroo v. Bai Jer Bai A.I.R. 1949 F.C. 124, it was observed:

"On the determination of lease it is the duty of the lessee to deli­ver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith, but if he does not, there is neither assent nor dissent on his part to the continuance of occu­pation of such person, the latter becomes, in the language of Eng­lish law, a tenant on sufference who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise ex­presses his assent to the continuance of his possession, new ten­ancy comes into existence as is contemplated dated by Section 116, T.P. Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 10S of the Act."

It was further observed:

"In cases of tenancies relating to dwelling houses to which the Rent Restriction Act, apply, the tenant may enjoy a statutory imunity from eviction even after the lease has expired. The land­lord cannot eject him except on specified grounds men­tioned in the Acts themselves. In such circumstances accept­ance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge by way of defence in a suit for ejectment brought against him under the provisions of Rent Restriction Act that by accept­ance of rent a fresh tenancy was created which had to be deter­mined by a fresh notice to quit."

In Ganga Dalta v. Kartuk Chandra Das A.I.R. 1961 S.C. 1067. it was observed: -

"Where a contractual tenancy to which the Rent Control legis­lation applies, has expired by afflux of time or by determination by notice to quit and the tenant continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration. or determi­nation of the contractual tenancy will not afford ground for hold­ing that the landlord has assented to a new contractual tenancy"

It was further observed:

"Occupation of premises by a tenant whose 'tenancy is deter­mined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as con­ditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exer­cise of jurisdiction by the court is removed, the right to obtarn possession by the lessor under the ordinary law springs into action and the exercise of lessor's right to evict the tenant will not, unless the statute prohibits otherwise, be conditioned."

In Smt. Bharto v. Smt. Asa Devi 1966 A.W.R. 55, this Court held that after deter­mination of tenancy the tenant becomes at least a statutory tenant. His right to remain in possession is personal and it is not capable of being transferred or assigned and can devolve on his death only in the manner provided by the statute which gave him the protection from eviction. In the case of U.P. (Temporary) Control of Rent and Eviction Act there is no provision at all for devolution of such a right to remain in possession. In the absence of any specific provision making the right of such a tenant heritable, it has to be held that the heir of a tenant at least did not acquire the status of even a statutory tenant for the pur­poses of Section 3 of Act III of 1947 and was, therefore, in any case liable to be ejected in a suit.

In Jagannath Prasad and others v. Suit. Chaudrawati 1969 A.W.R. 1970, the Full Bench of the Court observed:

"The effect of determination of tenants' tenancy by a valid notice is that his status becomes that of a person against when no suit for ejectment could be filed till the conditions enumerated in Section 3 of the Act were fulfilled. His statutes technically, therefore, is that a statutory tenant and that right in the absence of any provision to the contrary in the statute, is personal only. The right to remain in occupation of the accommodation being personal and having been extinguished with the death of the tenant, his heirs cannot in law be termed as persons affected or claiming under him and cannot challenge the dead decree even though it was a wrong decree and could have been success­fully challenged by the tenant."

This question, again, cropped up for consideration in the case of Anand Niwas Pvt. Ltd. v. Anandji Kalyanji Pedhi A.I.R. 1965, S.C. 414, Their Lord­ships of the Supreme Court observed:-

"A person remaining in occupation of the premises let to him after the determination of expiry of the period of the tenancy is commonly thought in law not accurately, called, a statutory ten­ant. Such a person is not a tenant at all. HS has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to re­main in possession after.............. the determination of the contractual tenancy is personal it is not capable of being trans­ferred or assigned and devolves on his death only in the manner provided by the statute."

In J. C. Chatterji and others v. Shri Sri Kishan Tandon and an­other (6) again the same view was reiterated. It is, therefore, clear that aiier September 13, 1970 Ganga Prasad became a statutory ten­ant because the contractual tenancy was determined by means of a valid notice under Section 106, T.P. Act. As a statutory tenant, his right to remain in possession was entirely personal and was not cap­able of being transferred or assigned and could devolve on his death only in the manner provided by statute which gave him the protec­tion from eviction. As held in the case of Smt. Bhurto v. Smt. Asha Devi (supra), in the case of the U.P. (Temp.) Control of Rent and Eviction Act there was no provision at ail for devolution of such a right on heirs to remain in possession. Obviously Ganga Prasad died on October 12, 1971 i.e. before the U.P. Act X11I of 1972 came into force and the defendants revisionist IN'OS. 1 and 2 could not inherit tenancy rights of Ganga Prasad.

Another question of interest which has arisen in this case is whether the notice to quit dated August 11, 1970 was waived by the plaintiff and Ganga Prasad was treated as a tenant. In this connec­tion the learned counsel for the defendant-revisionist has vehement­ly contended that after the service of notice on August 14, 1970 Ganga Prasad remitted the entire rent which was accepted by the plaintiff on September 3, 1970. This fact is not at all disputed by the plaintiff opposite party but it was the rent upto the end of August, 1970 and the tenancy stood terminated on September 13, 1970. Therefore, by acceptance of this rent the notice could not be waived.

The learned counsel for the revisionist has further argued that even afterwards Ganga Prasad had sent rent by money order and when it was not accepted by the plaintiff oposite party, he had moved an application under Section 7-C of U.P. Act III of 1947 and deposited rent in those proceedings. Reliance is placed on sub-sec­tion A.I.R: 1973 S.C. 2526, of Section 7-C of the Act to show that where a deposit has been made as aforesaid it shall be deemed that the rent has been duly paid by the tenant to the landlord. It is, therefore, urged that by virtue of this deposit under Section 7-C the rent stood paid up and the notice to quit will be deemed to have bean waived. I have given my anxious consideration even to this contention and I do not find such force in it. It is true that before permitting deposit to be made under Section 7-C the Munsif had to determine two jurisdiction facts viz. he had to satisfy himself that relationship of landlord and tenant existed between the parties and that the landlord had refused to accept rent. It is also correct that a deposit under Section 7-C had the effect of the past rent having been duly paid by the tenant to the landlord (Khusrod 15. Gandhi v. F. J. Gandhi 1967 A.L.J. 1086, but as held in Shanti Devi v. Chandramukhi 1967 A.L.J. 788.

"When rent is deposited under Section 7-C the Court becomes a sort of custodian of the amount. It does not have to decide whether any dispute or doubt has arisen as to the person entitled to receive the rent. This is a matter which is left for the decision of the appropriate court if and when the tenant claims that he made no default in payment of rent because he depo­sited it under Section 7-C. It is for the court hearing the suit for ejectment to decide whether the tenant was entitled to make a deposit under Section 7-C and if he holds that he was so entitled it will dismiss the suit for ejectment.'

In Janki Prasad v. Ranvir Singh Rathore 1965 A.L.J. 942, also it was held that under Section 7C- the Munsif was not required to determine the rights and obligations of the landlord and the tenant. All that he had to do on deposit of rent under Section 7-C was to issue a notice to the landlord informing him that such deposit was made. It was then open to the landlord to accept it or not.

In the instant case the position as it emerges from the record is that Ganga Prasad moved an application under Section 7-C for permission to deposit rent. The court permitted him to do so as will be clear from the copy of the order (Ex. 9) dated January 30, 1971. This order makes it clear that the plaintiff opposite party had not participated in those proceedings. There is nothing on the record to show that notice under sub-section (4) of Section 7-C was issued to the plaintiff-landlord and he has withdrawn that amount. On the other hand the admitted position is that the amount remains depo­sited in court. On October 12, 1971, Ganga Prasad died in the capa­city of a statutory tenant. Obviously during his life time he could not be evicted on account of statutory protection so long as the rent was deposited by him but he being a statutory tenant, his rights could not devolve on his heirs on his death. The right to obtain pos­session by the lessor under the law came into action.

The position of deposit of rent in court in cases governed by the Rent Control Act was considered in certain cases. In Pt. Jankinath Kaul v. Pt. Jialal A.I.R. 1962 Jammu and Kashmir 2, it was held that under the Rent Control Act after a contractual tenancy is determined the tenant does not become a trespasser but statutory tenant. A statutory tenant in order to pro­tect himself from being ejected on the ground of non-payment of rent may pay a sum of money intending it to be rent of the premises to the landlord which the landlord may receive not as rent but as com­pensation for use and occupation of the/ premises, and, therefore, such payment on the part of the tenant after the expiry of the lease and receipt of the same by the landlord will not revive the tenancy. There is no conscientious addend between the parties on the creation of tenancy. In Bhagat Ram and others v. Keshab Deo and others A.I.R. 1965 Assam and Nagaland 55, it was held that under Section 113 of the T.P. Act the notice is deemed to be waived only if the landlord by express words or by im­plication or by his conduct, intends to treat the lease as subsisting. The acceptance of rent under the circumstances mentioned in Illus­tration (a) to Section 113 will no doubt amount to the tacit consent of the landlord to continue the tenancy. But where the amount is deposited in court under the provisions of the Rent Control Act there cannot be tender of the rent by the lessee to the landlord and acceptance by him. There fore, even if the amount is withdrawn, it will not constitute waiver in the absence of any evidence to show that the landlord intended to keep the lease subsisting. The same view was taken in the case of K. P. Misra v. Smt. Parwati Bai Sitambarnath A.I.R. 1960 M.P. 192, and P. B. Shaw v. MJSS Leela Devi A.I.R. 1956 Cal. 106.

It is, therefore, clear that a deposit of rent in court according to the provisions of the Rent Control Act and its withdrawal by the landlord will not amount to waiver of notice unless the landlord treats the tenancy as subsisting. In the instant case the plaintiff op­posite party did not accept rent which Ganga Prasad had sent by mo­ney order after the termination of his tenancy. He has not with­drawn a single pie from the court where the money was deposited by Ganga Prasad under Section 7-C. For long 15 months he did not accept anything from Ganga Prasad or from the defendant-revision­ist. Hence it cannot be said that he assented to the continuance of tenancy of Ganga Prasad or to the creaton of fresh tenancy in fa­vour of the defendant-revisionist. The latter are also alleged to have deposited some amount in court but they cannot claim tenancy rights on its basis as they had no right to deposit rent. I am, therefore, in judgment that the notice was not waived and the revisionist were liable to eviction.

The learned counsel for the applicants has also argued that if the applicants were not the tenants, the suit could not be tried by the small cause court. It has no force because the suit was against the heirs of an ex-tenant who claimed tenancy rights and was cog­nizable by the Small Cause Court. Besides, it no such plea was rais­ed in the written statement nor it finds place in the memo of revision. No failure of justice is alleged to have been occasioned by the trial of this suit by the Small Cause Court.

In view of the aforesaid discussion the revision has no force and is accordingly dismissed with costs to the opposite party. The revi­sionists are, however, allowed three months' time to vacate the shop.