Supreme Court of India
MAIKUversusVILAYAT HUSSAIN THROUGH L.RS.
- Citation
- 1986 INSC 71
- Decided
- 10 April 1986
- Disposal
- Dismissed
Holding
A tenant must prove the landlord's refusal to accept rent; the mere grant of permission under Section 7C does not automatically shield the tenant from eviction.
Summary
The tenant, Maiku, fell into arrears of rent and, after repeated demands, the landlord filed an eviction suit. The tenant claimed he was not a defaulter because the landlord refused to accept his rent tender, prompting him to deposit the arrears in Court under Section 7C of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947. The trial court held the deposit invalid as the tenant failed to prove the landlord's refusal, and decreed eviction; the appellate court reversed this, but the High Court restored the trial court's decree. On appeal, the Supreme Court examined whether a permission order under Section 7C automatically presumes landlord refusal and whether the eviction court can inquire into the validity of that permission. The Court held that the tenant must establish the landlord's refusal before the eviction court; the mere grant of permission to deposit rent does not absolve the tenant from eviction liability. Consequently, the appeal was dismissed and the eviction decree upheld.
Issues considered
- Whether a permission granted under Section 7C of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947, presumes that the landlord refused to accept rent tendered by the tenant.
- Whether the court hearing an eviction suit can examine the validity of the permission to deposit rent under Section 7C.
- What burden of proof rests on the tenant to demonstrate the landlord's refusal to accept rent in order to escape eviction.
Legislation cited
Subjects
rent controlevictionSection 7Cdeposit of rentlandlord refusalburden of proofcivil procedure
Judgment
461
HAIKll .
A
v.
VILAYAT lllJSSAIN TIIROUGH L. Rs.
APRIL 10, 1986
[R.B. MISRA AND M.M. DUTT, JJ.] B
United Provinces (Temporary) Control of Rent and
Eviction Rent, 194 7 - S. 7C - Rent tendered by tenant -
Landlord refused to accept - Application for permission to
deposit rent in Court - Tenant's allegations about landlord's
refusal to accept rent offered by tenant sufficient to grant
permission - Eviction suit - Tenant's failure to establish c
that landlord refused to accept rent offered by him - Tenant
liable to eviction on ground of default.
Depos;i.t of rent in Court - Service of notice on landlord
- When to be made by Court.
D
The appellant-tenant neither paid the arrears of rent in
spite of verbal demand, notice of demand, and notice under s.
106 of the Transfer of Property Act, nor vacated the premises.
f" The landlord, therefore, filed a suit'claiming arrears of rent
and damages for the period of default as also pendente lite
and future. E
•
The claim was resisted by the tenant contending that he
was not a. defaulter, that the landlord had refused to accept
the rent tendered by him and that he deposited the same in the
Court under s. 7C of the United Provinces (Temporary) Control
\ of Rent and Eviction Act, 1947. The trial Court decreed the F
suit holding that the deposit of arrears of rent by the tenant
was not a vdlid deposit and, therefore, it could not absolve
the liability of the tenant from eviction inasDLlch as the
tenant had failed to establish that the landlord had refused
to accept the tender made by him.
G
The Additional Civil Judge allowed the appeal by the
tenant and held that he was not a defaulter on account of the
deposit made under s. 7C of the Act.
In the second appeal by the landlord, the High Court set
H
462 SUPREME COURT REPO~TS (1986] 2 S.C.R.
aside the judgment and decree of the Lower Appellate Court as ~
A
regards eviction and restored the decree of the trial Court.
In the appeal to this Court it was contended on behalf
of the appellant-tenant: (i) that if the arrears of rent had·
been deposited with permission of the Court under s. 7C of the
B Act, it llllSt be presumed that the landlord had refused to
accept the rent tendered by the tenant; (ii) that as the _j,,
landlord did not raise any objection in the proceedings under
s. 7C he can neither question the validity of the order passed
in those proceedings nor the Court can go into the question of
validity of the deposits made; and (iii) that the First
c Appellate Court had recorded a finding of fact believing the'(
statement of the tenant that the landlord had refused to
accept the rent when tendered to him and also refused to-+-
accept the amount sent by money-order and this finding could
not have been set aside by the High Court in second appeal.
D
Dismissing the appeal and disposing of the Civil
Miscellaneous Petition,
HELD: l. There is no error, much less a manifest error,
for interference with' the judgment of the High Court. ,
(469 D-E]
E
2. The mere fact that an application under s. 7C for •
permission to deposit the arrear of rent has been allowed by
the !bnsif will not absolve the tenant from establishing
before the Court, where the suit for eviction was filed that )"
the landlord had refused to accept the rent lawfully tendered.___)
F
The tenant llllSt establish before the trial Court the factum of~
refusal by the landlord when the payment was sought to be made'
to him. {469 C-D]
3. Section 7C permits a tenant to deposit the arrears of
rent in Court only under two conditions (i) when the
landlord refuses to accept any rent lawfully paid to him by
G
the tenant in respect of any acco111DOdation, and (ii) where any ~
bona fide doubt or dispute has arisen as to the persons who r
were entitled to receive any rent referred to in sub-s. (1) in
respect of any accolllDOdation. If the deposit of arrears of
rent was a valid deposit in accordance with the requirements
of s. 7C certainly it will amount to payment to the landlord
H
and the tenant will be absolved from the liability of being
MAIKU v. VllAYAT HUSSAIN [ M.ISRA, J. ] 463
A
evicted. But the Court itself cannot go into the question
whether the landlord had refused to accept the rent paid
lawfully or otherwise. If the M.unsif had only to accept the
application and accord per:nission to the tenant to deposit the
arrears in Court merely on the basis that necessary
allegations in the application as required by s. 7C had been B
made, he was not obligated to enquire whether the allegations
were correct or not. However, the Court trying the suit for
eviction cannot be precluded from enquiring about the validity
of the permission under s. 7C. [467 C-F]
4. In the instant case, the finding of fact recorded by
the First Appellate Court believing the statement of the c
tenant that the landlord had ref used to accept the rent when
tendered to him and also ref used to accept the amount sent by
money-order, is based on surmises and conjectures than on the
basis of the material on record. Therefore, the High Court was
fully justified in reversing this finding in second appeal as
it was vitiated in law. The only evidence is the deposition of D
the tenant which the trial Court did not rely upon, and even
the First Appellate Court did not categorically say that it
believed the deposition of the defendant. Since the compliance
of the ingredients of s. 7C had not been established, the
tenant-appellant was liable to be evicted. (467 G; 469 A-BJ
E
CIVIL APPELlATE JURISDICTION : Civil Appeal No. 413 of
-· 1986
From the Judgment and Order dated 10th February, 1976 of the
Allahabad High Court in Second Appeal No. 2337 of 1966.
F
R.K. Jain and Shakeel Ahmed for the Appellant.
N.A. Khan, M.anoj Swarup and U. s. Prasad for the
Respondents.
The Judgment of the Court was delivered by
G
R.B. MISRA, J. The only question for consideration in
this appeal by special leave is whether the deposit of arrears
of rent under s. 7C of the United Provinces (Temporary)
Control of Rent and Eviction Act, 1947 will save the te ant
from the penalty of being evicted for non-payment of rent.n
464 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
The appellant is a tenant of the respondent on a monthly
rent of Rs. 6. 25 per mensem. He fell into arrears of rent
amounting to Rs. 318.75 for the period from 1st October, 1959
to 31st Lecember, 1963. The tenant did not pay the aforesaid
amount in spite of the verbal demand. Consequently, the
landlord served upon the tenant a notice of demand. The
B tenant, however, failed to comply with the said notice, hence
he became a defaulter. The landlord thereafter served another
notice on the tenant under s. 106 of the Transfer of Property --'.
Act. The tenant, however, neither vacated the premises nor
cleared the arrears of rent. The landlord was, therefore,
obliged to file a suit. He, however, claimed a sum of Rs.
c 176.68 as arrears of rent for the period from 1st October,
1961 to 8th February, 1964 the claim for rent for the·"(
remaining period having become barred by time. He also claimed --f-
a sum of Rs. 58. 23 as damages for the period from 9th
February, 1964 to 22nd October, 1964 as also pendente lite and
future damages at the rate of Rs. 6.25 per mensem.
D
The claim was resisted by the tenant on the ground that
he was not a defaulter inasmuch as whatever rent was tendered
to the landlord he refused to accept the same and, therefore,
he was constrained to deposit the amount, that is, a sum of _,,
Hs. 231.25 for the period from 1st September, 1961 to 30th
E
September, 1964 in the Court under s. 7C of the Act. He also
disputed the date of tenancy as alleged by the
respondent-landlord. •
The trial Court came to the conclusion that the y .,
defendant became a tenant from 17th January, 1962 and not from
F
1959, as alleged in the plaint. As the deposit of arrears of_,1
rent by the tenant under s. 7C was not a valid deposit, l'
therefore, it could not absolve the liability of the tenant
from eviction inasmuch as the defendant had failed to
establish that the landlord had refused to accept the tender
made by the tenant. Accordingly, the suit for recovery of
arrears of rent amounting to Rs. 154 and damages amounting to
G
Rs. 58.23 was decreed with pendente ~ and future mesne
profits at the rate of Rs. 6.25 per mensem. 't
On appeal the learned Addl. Civil Judge reversed the
finding of the trial court and held that the tenant was not a
defaulter on account of the deposit made by him under s. 7C of
H
.•
MAIKU V• VIIAYAT HUSSAIN [ MISRA, J, ] 465
A
-*the said Act and set aside the judgment and decree of the
trial Court for eviction. In second appeal the High Court set
aside the judgment and decree of the lower appellate court as
regards eviction and restored the decree of the trial Court.
The tenant has now come in appeal to this Court as stated
earlier, by special leave. B
~ Shri R.K. Jain appearing for the appellant has contended
that if the arrears of rent had been deposited with permission
of the court under s. 7C of the Act it will be presumed that
the landlord had refused to accept the rent tendered by the
·' tenant. As a second limb to this argument it was contended
that it was not open to the Court in a suit for eviction to go c
)'into the question of validity of the deposit made under s. 7C.
~ produced a certified copy of the order pf the Munsif City,
Kanpur dated 30th July, 1962 allowing the application made by
the tenant for permission to deposit the arrears of rent. The
Order reads :
D
"This is an application under s. 7C(l) of the U.P.
Act Ill of 1947. The opp. party was served with the
notice. No objection filed. The case falls under
s. 7C(l) the ingredients of which are made out.
Hence the applicant tenant is allowed to deposit
rent in this Court regularly under s. 7C(l) and the E
- opp. party landlord is entitled to withdraw the
money."
-10n the strength of this order it was strenuously contended by
Shri Jain that no objection was ever raised by the landlord in
~roceedings under s. 7C of the Act and, therefore, it is not F
open to him to raise the question of validity of the order
passed under s. 7C.
The question that squarely falls for consideration is
whether the order granting permission to the tenant to deposit
the arrears of rent in court is sacrosanct and cannot be G
challenged in a regular suit for eviction. Indeed, the Munsif
)'before whom the application for permission was filed was not
required to determine the rights and obligations of the
tenant. All that he had to do on deposit of rent under s. 7C
was to issue a notice to the landlord informing him that such
deposit had been made. Section 7C so far as material, H
provides :
466 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
"7C Deposit of Rent in Court:- (!) When a landlord,+
refuses to accept any rent lawfully paid to him by
a tenant in respect of any accommodation the tenant
may in the prescribed manner deposit such rent and
continue to deposit any subsequent rent which
becomes due in respect of such accommodation unless
B the landlord in the meantime signifies by notice in
writing to the tenant his willingness to accept. ~
c
(2) Where any bona-fide doubt or dispute has arisen
as to the person who is entitled to recei1Te any
rent referred to in sub-s. (I) in respect of any
accommodation, the tenant may similarly deposit the
.
rent stating the circumstances under which sucft\
deposit is made and may until such doubt has bee~
ren~)lled or such dispute has been settled by the
decision of any competent Court, or by settlement
between the parties, continue to deposit, in like
D manner, the rent that may subsequently become due
in respect of such building.
(3) The deposit referred to in sub-s. (!) or (2)
shall be made in the Court of the MunsiE havin~
jurisdiction in the area where the accommodation is
E situate.
(4) On any deposit being made under sub-s. (!), the
court shall cause a notice of the deposit to be
-
served on the landlord, and the amount of deposit r
may be withdrawn by the landlord on application
F made by him to the Court in this behalf, )1-
Section 7C gives a right to the tenant to deposit rent
when a landlord refuses to accept any rent lawfully paid to
him by the tenant. A tenant may allege that the landlord had
ref used to accept any rent lawfully paid to him. The section
G itself does not require the Munsif to go into the question
whether the landlord had refused to accept the rent paid
lawfully or otherwise. We fail to understand how, as thE!,-
learned Munsif observed, the opposite party was served with a
notice. Sub-s. (4) of s. 7C contemplates of only one notice
after the deposit, in pursuance of the permission granted to
H deposit the arrears of rent under this section. In the absence
MAIKU v. VIlAYAT HUSSAIN [ MISRA, J. ] 467
A
~ of any provision for sending notice to the landlord before
granting permission to the tenant, we fail to understand how a
notice was sent to the landlord before the passing of the
order. The sub-s. clearly contemplates that on any deposit
being made under sub-s. (1) the court shall cause a notice of
the deposit to be served on the landlord and the amount of B
deposit may be withdrawn by the landlord on application made
by him to the court in this behalf. If the Munsif was to
,.._accord the permission to deposit the arrears of rent merely on
being satisfied that the necessary allegation as required by
s. 7C of the Act has been made, viz. the landlord had refused
to accept the rent lawfully tendered to him, he was not
obligated to enquire whether the allegation made in the
.Y'application was correct or not.
c
Section 7C permits a tenant to deposit the arrears of
rent in court only under two conditions (1) when the
landlord refuses to accept any rent lawfully paid to him by
the tenant in respect of any accoimnodation, and (ii) where any
D
bonafide doubt or dispute has arisen as to the person who was
entitled to receive any rent referred to in sub-s. (1) in
respect of any accommodation. If the deposit of arrears of
~rent was a valid deposit in accordance with the requirements
of s. 7C certainly it will amount to payment to the landlord
and the tenant will be absolved from the liability of being
E
evicted. But if the Munsif had only to accept the application
and accord permission to the tenant to deposit the arrears in
court merely on the basis that necessary allegations in the
-1 application as required by s. 7C had been made, the court
trying the suit for eviction cannot be precluded from
, enquiring about the validity of the permission under s. 7C.
"' It was next contended for the appellant that the first
F
appellate court had recorded a finding of fact believing the
statement of the tenant that the landlord had refused to
accept the rent when tendered to him and also refused to
accept the amount sent by money order and this finding could
G
not have been set aside by the High Court in second appeal. We
'I( are afraid this contention has no substance. The finding
recorded by the first appellate court is based more on
surmises and conjectures than on the basis of the material on
record. We would do no better than quote the observations made
by the first appellate court :
H
468 SUPREME COURT REPORTS · [1986] 2 s.c.R.
A
"The appellant having admitted deposit of rent in +
court under s. 7C and the court having accepted the
deposit holding the ingredients of the section to
have been made out and permitting the appellant to
continue depositing rent in future also, prima
facie the deposit has to be treated as valid and
B the burden lay on the plaintiff to show that the
entire proceedings under s. 7C were invalid and the
runsif had absolutely no jurisdiction to entertain ,.I,
the application and accept the deposit ••• The
circumstances of the case also indicate that the
rent must have been tendered by the defendant and
C might have been refused by the plaintiff. When the
defendant had applied for allotment of the shop in'(
his name, plaintiff had filed objections before the
Rent Control and Eviction Officer but his">(-
objections were over-ruled and allotment was made
in favour of the defendant. This was bound to cause
D annoyance to the plaintiff and he might have
refused to accept the rent on that account."
Obviously, the first appellate court was of the opinion
that once permission had been granted by the funsif to the
tenant to deposit arrears of rent it would be presumed that 'i
E the permission was a valid one under s. 7C and this view of
that court had coloured its findings and it had entered into
surmises and conjectures. •
The trial Court had rejected the testimony of the
defendant with regard to the tender of rent on the ground that )r
F he was'an interested witness. According to his deposition he_[
had gone to pay the arrears of rent prior to bringing thej
application under s. 7C and that he had twice tendered the
amount of arrears by hand to the plaintiff in the presence of
plaintiff's son and the plaintiff had refused to accept it. He
further deposed that the rent was tendered by money order also
G but the plaintiff had refused to accept it. The defendant did
not care to file the postal .receipts in the present case nor
did he produce the plaintiff's son before whom he made tender
which was refused by the plaintiff. Unless the evidence was 'f
filed in the present case that could not be taken into
consideration by the court by summoning the file of some other
H case. The first appellate court had, however, relied upon the
MAIKU v. VILAYAT HUSSAIN [ MISRA, J. ] 469
-" postal money order receipts by looking into the records of the A
proceedings under s. 7C. The High Court in the circumstances
was fully justified in reversing the finding recorded by the
first appellate court as it was vitiated in law.
It may look hard that the tenant who had deposited the
rent in court under s. 7C, has to be evicted as the B
J,. ingredients of S• 7C had not been established but there is no
help. In the instant case the only evidence is the deposition
of the tenant which the trial court did not rely upon and even
the first appellate court did not categorically say that it
believes the deposition of the defendant. The law in our
opinion is clear that the tenant must establish before the
JI court in which the suit for eviction has been filed, the C
-;irfactum of refusal by the landlord when the payment was sought
to be made to him. The mere fact that an application under S•
7C for permission to deposit the arrears of rent has been
allowed by the Munsif will not absolve the tenant from
establishing before the court, where the suit for eviction was
filed, that the landlord had refused to accept the rent D
lawfully tendered.
)' For the reasons given above we do not find any e'rror,
much less a manifest error, for interference with the judgment
of the High Court. The appeal is accordingly dismissed, but
there is, however, no order as to cost. With the dismissal of E
• the appeal the stay order stands vacated and no separate order
is needed. The civil miscellaneous petition is disposed of
_, accordingly.
F
A.P.J. Appeal dismissed.
v
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