Supreme Court of India
MANGAL SENversusKANCHHID MAL
- Citation
- 1981 INSC 144
- Decided
- 20 August 1981
- Disposal
- Dismissed
- Bench
- R S PATHAK
Holding
No waiver of the rent demand was established and the tenant did not satisfy Section 20(4); therefore the eviction decree is upheld.
Summary
The landlord sued the tenant for eviction under Section 20(2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, alleging rent arrears of at least four months. The tenant denied any arrears, contending that he had stood surety for the landlord’s sales‑tax dues and therefore no rent was due. The trial court, despite finding rent arrears, held that the landlord’s conduct in inducing the tenant to act as surety amounted to a waiver of the rent demand and denied eviction. The District Court reversed, observing that no plea of waiver was raised and that the tenant never actually paid any amount toward the sales tax, so no waiver could be inferred. The High Court affirmed the District Court’s decision, and the Supreme Court dismissed the appeal, holding that the tenant neither established a waiver nor satisfied the conditions of Section 20(4) for unconditional tender of the entire rent and damages. Consequently, the eviction decree under Section 20(2)(a) stands.
Issues considered
- Whether the trial court could consider a waiver of the rent demand when the tenant did not plead waiver.
- Whether the landlord’s act of inducing the tenant to stand surety for sales‑tax arrears amounts to a waiver of the rent demand under Section 20(2)(a).
- Whether the tenant complied with the conditions of Section 20(4) of the Act by depositing Rs.1,980 on the first hearing as an unconditional tender of the entire rent and damages.
Legislation cited
- Code of Civil Procedure, 1908s. 115
- U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 20(2)(a), s. 20(4)
Subjects
evictionrent arrearswaiversuretySection 20(2)(a)Section 20(4)landlord‑tenantU.P. Urban Buildings Actspecial leave petition
Judgment
' A
331
MANGAL SEN
v.
KANCHHID MAL B
\ August 20, 1981
[R.S. PATHAK, E.S. VENKATARAMIAH AND
V. BALAKRISHNA ERADI, JJ.]
c
U.P. Urban Buildings (Regulation uf Letting, Rent and Eviction) Act, 1972,
secUon 20(2) (a) ( 4)-Scope of.
The respondent-landlord filed a suit under section 20(2)(a) of the U.P
Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 against
the appellant praying for his eviction from the suit premises. It was alleged that
the tenant was in arrears of rent for not less than four months from April 9, I>
• 1972, that he had failed to pay the same within one month from the date of the
notice to him and that the tenant had declined to pay arrears of rent despite
the notice.
While denying the allegation of default in payn1ent of rent the tenant
claimed that since he stood surety for the landlord for th•! payment of arrears
of sales tax payable by him there could not b~ any question of arrears of rent E
being outstanding against him to the landlord.
Although the trial Court found it as a fact that the tenant had committed
-
default in payment of rent for more than four tnonths after the notice of demand
had been issued it held that the landlord's action in inducing the tenant to stand
surety for him for payment of arrears of sales tax constituted waiver of the
demand for rent and that for this reason the landlord was not entitled to the F
relief of eje<:tmen t.
.. In revision the District Judge found that the tenant had at no stage of the
proceedings before the trial Court put forward the plea of waiver but that an
issue had been framed by the trial Court of its own accord. On merits the
District Judge held that no conduct on the part of the landlord which amounted
to waiver had been established because the tenant had not actually made any G
payment on behalf of the landlord towards the sales tax dues.
The High Court dismissed the tenant's revision petition under section
115 C.P.C.
[Since in the special leave petition the tenant contended that the revision H
petition filed by him in the High Court was not maintainable in Iaw, this Court
granted special leave to appeal against the judgment of the District Court.]
332 SUPREME COURT REPORTS [1982] 1 S.C.R,
A Dismissing the appeal, I
HELD : The District Court was right in holding that in the absence of any
plea of waiver put forward by the tenant the trial Court was not really called
upon to go into that question. Therefore, the finding of the trial Court that the
landlord's notice had been effaced by his (landlord's) subsequent conduct w·hich
amounted to waiver was manifestly illegal and perverse. It was the specific case
B of the tenant that no an1ount whatever had been paid by him to the sales tax
authorities on behalf of, the landlord. Neither did the landlord make any
endorsement on the rent deed adjusting the proposed payment of sales tax against
arrears of rent. [335 A·D] j
Having failed to establish that he had complied with the conditions specified
in section 20(4) of the Act the tenant is not entitled to be relieved against his
c liability for eviction on the ground set out in section 20(2J(a) of the Act.
[336 H-337 A]
The provisions of section 20(4) will get attracted only if the tenant bad at the
first hearing of the suit unconditionally paid or tendered to the Jandlord the entire
amount of rent and damages due from him for use and occupation of the building )
together with interest thereon at 9% per annum. There is nothing on
D record to show that the deposit was made on the first date of hearing and that
it was made by way of unconditional t~nder for payment to the landlord. On •
the contrary the tenant in his written statement, had stated that since he had
stood surety for the landlord's arrears of sales tax, there was no default by him
in the payn1ent of rent. In the face of a plea disputing the existence of any
anears of rent and denying the default the deposit even if made on the date of
the first hearing, was not an unconditional tender of the amount for payment
E to the landlord. Nor is there anything on the record to show that what was
deposited was the correct amount calculated in accordance with the provisions of !
section 20(4) of the Act. (336 D-H]
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 965 of 1980
Appeal by special leave from the judgment dated the 28th
November, 1979 of the Allahabad High Court in Civil Revision No.
661 of 1977.
-
Manoj Swarup & Miss Lalita Kohli for the Appellant.
G R. N. Sharma and N. N. Sharma for the Respondent.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. This appeal by special leave is against
H a judgment rendered by the First Additional District Judge, /
Bulandshahr, allowing a Revision Petition filed before him by the
respondent herein.
MANGAL SEN v. KANCHHID MAL (Balakrishna Brodi, J.) 333
The respondent is the owner of a shop building in Jahangirabad
' town which he had let out to the appellant on a month to month
tenancy basis. A suit for ejectment was filed by the respondent in
the Court of Small Causes (Civil Judge), Bulandshahr, praying for
eviction of the appellant from the shop under Section 20 (2) (a) of
the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 (for short, the Act) on the ground that the tenant was in B
arrears of rent for not less than four months commencing from April
9, 1972 and had failed to pay the same to the landlord within one
\
month from the date of service upon him of a notice of demand
(October 19, 1972). It was alleged in the plaint that the agreed rent
of the shop was Rs. 100/- per month and that the tenant had kept
the rent in arrears from April 9, 1972 qnwards despite notice having c
been served on him on October 19, 1972 demanding payment of
arrears of rent and determining the tenancy.
The appellant (defendant) pleaded in defence that the rent was
only Rs. 90/- per month, that he had not committed any default in
payment of the same and hence the suit for ejectment was not main- D
tainable. According to the defendant, after service of the notice of
demand for payment of arrears of rent, the respondent had approa-
ched him with a request to stand surety for him for the payment of
arrears of sales-tax due by him for the realisation of which the Amin
had come with a warrant for the arrest of the respondent and since
the appellant had acceded, to the said request and stood surety for E
' the respondent there could be no further question. of any arrears of
rent being outstanding as due by him to the respondent.
- The trial court held that the rent of the shop was Rs. 90/- per
month, that it had been kept in arrears by the tenant from April 9,
1972 onwards and a default had been committed by the tenant in
payment of arrears of rent of more than four months after the notice
F
of demand. Notwithstanding the aforesaid finding that there had
been such default committed by the tenant, the trial court took the
view that the conduct of the plaintiff-respondent in inducing the
defendant to stand surety for him for the payment of sales-tax
arrears due by him constituted a waiver of the demand made in the
G
· notice for surrender of possession on the ground of arrears of rent
made. On this reasoning, the trial court denied the plaintiff the relief
of ejectment and decreed the suit only for recovery of arrears of rent.
'· The respondent-plaintiff carried the matter in revision before H
District Court, Bulandshahr. The learned District Judge found that
334 SUPREME COURTS REPORTS [ 1982] 1 S.C.R.
A the plea of waiver had not been put forward by the defendant either I
in the written statement or in any other manner at any stage before
the trial court and that the issue covering the question of wairer had
been framed by the trial court of its own accord. The District Judge
further found on the merits that no conduct amounting to waiver on
the part of the plaintiff had been established by the evidence because
B . even according to the case of the defendant himself, excepting for
standing surety for the plaintiff, he had not actually made any pay-
ment on behalf of the plaintiff towards the sales-tax dues since the
I
"plaintiff had specifically refused to make any endorsement in the
Rent Deed adjusting the proposed payment of sales-tax against the
arrears 'lf rent due by the defendant. Inasmuch as the trial court
c had found that the default in payment of the arrears of rent for a
period exceeding four months had been committed by the defendant
and it had denied a relief of ejectment only on the reasoning that
there had been a waiver of the demand for eviction on the part of
the plaintiff, the District Judge allowed the Revision Petition and
.J
D granted the plaintiff a decree for ejectment under Section 20 (2) (a)
of the Act.
Thereafter, the appellant-defendant took up the matter in fur-
ther revision before the High Court under Section 115, Code of Civil
Procedure. The High Court by its judgment dated November 28,
E 1979 confirmed the findings of the District Judge and dismissed the
Revision Petition.
The defendant thereupon approached this Court for the grant
of special leave to appeal against the said judgment of the High
F
Court. It would 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
G by order of this Court dated April 23, 1980. This Civil Appeal is
thus directed against the judgment of the District Judge.
After hearing counsel on both sides, we are satisfied that the
H 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
MANGAL SEN v. KANCHH!D MAL (81/akrishna Eradi, J.) 335
\ per the notice dated October 9, 1972 which was served on the tenant A
on October 19, 1972. As rightly observed by the District Court, the
defendant had not put forward any plea of waiver in the written
statement filed by him before the trial court and in 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 B
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 enJorsement on the Rent Deed adjus-
ting 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 C
already made by him as per the notice dated October 9, 1972. The
finding rendered by 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 manifesUy illegal and per verse and
it was rightly set aside by the District Judge.
D
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 E
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 (2J 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 : F
"20 (2) .............................................................. .
(a) that the tenant is in arrears of rent for not less
than four months, and has failed to pay th.e same to the
landlord within one month from the date of service upon him
G
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 land- H
lord the entire amount of rent and damages for use and
occupation of the building due from him (such di1mages for
336 SUPREME COURT REPORTS [1982] 1 s.c.R.
A
use and occupation being calculated at the same rate as
rent) together with interest thereon at the rate of nine per
cent per annum and the landlord's costs of the suit in res-
pect thereof, after deducting therefrom any amount already
deposited by the tenant under sub-section (1) of Section 30,
the court may, in lieu of passing a decree for eviction on
B
that ground, pass an order relieving the tenant against his
liability for eviction on that ground :
J
Provided that nothing in this sub·section shall apply in
relation to a tenant who or any member of whose family
c bas 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 bearing of the suit, unconditionally paid or
D tendered to the landlord the entire amount of rent and damages for
use and occupation of the building due from him together with
interest thereon at the rate of nine per cent per annum and the land-
lord's costs of the suit in respect thereof, after deducting therefrom
any amount already deposited by him under sub-section (1) of
Section 30. There is absolutely no material available on the record
E 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 subse-
F quent 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
bad 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
G 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). In these circumstances, we hold
H that the appeilant has failed to establish that he has complied with the
conditions specified in sub-section (4) of Section 20 and hern;e he is
MANGAL SEN v. KANCHHID MAL (Ba/akrishna Eradi, J.) 337
' 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.
A
This appeal is, therefore, devoid of merits and is accordingly
dismissed. We direct the parties to bear their respective costs.
B
N.K.A. Appeal dismissed.
'
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•
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