Holding

The tenant was liable to pay Rs 1,200 per month in cash (with the other Rs 1,200 adjusted against the advance), and his payment of Rs 700 and court deposits did not constitute lawful rent, making him a defaulter liable to eviction.

Summary

The appellant, a tenant since 1965, entered into an agreement on 01‑08‑1988 to pay Rs 1,00,000 as advance for the construction of an RCC shop, with rent fixed at Rs 2,400 per month, of which 50% was to be adjusted against the advance and the remaining Rs 1,200 payable in cash. He took possession of the shop in April 1990 but continued to pay only Rs 700 per month, the old rate, and from April 1994 deposited the same amount in court under the Assam Urban Areas Rent Control Act, 1972. The landlord sued for eviction and arrears of rent; the trial, appellate and high courts held the tenant a defaulter, calculating arrears of Rs 7,614 after adjusting the advance. The appellant contended that the court deposits satisfied the rent and that the advance adjustment was not considered. The Supreme Court examined Section 5(1)(e) and 5(4) of the 1972 Act and the terms of the agreement, concluding that the lawful cash rent was Rs 1,200 per month and the tenant’s Rs 700 payment and court deposit did not meet this requirement. Consequently, the Court dismissed the appeal, upholding the eviction and the modest arrears award.

Issues considered

Whether the tenant's payment of Rs 700 per month, the old rent, satisfied the lawful rent obligation under the agreement and the Assam Urban Areas Rent Control Act, 1972.
Whether the deposit of Rs 700 per month in court under Section 5(4) of the 1972 Act constitutes lawful rent and shields the tenant from eviction.
Whether the adjustment of the advance amount of Rs 1,00,000 against rent was correctly accounted for in determining arrears.

Legislation cited

Assam Urban Areas Rent Control Act, 1972s. 5(1)(e), s. 5(4)

Subjects

evictionrent controlnon‑payment of rentadjustment of advanceSection 5defaulterlandlord‑tenant disputecivil appeal

Judgment

[20 I7] 3 S.C.R. 564

A MANIK CHAND JAIN
v.
MD. AHJYA
(Civil Appeal No. 3421of2017)
B MARCH 06, 2017
[A. K. SIKRI AND ASIIOK BIIUSIIAN, JJ.]
Assam Urban Areas Rent Control Act, 1972: s.5(l)(e) -
Eviction for non-payment of rent - Appellant was tenant in re~pect
ofAssam Type House and paying monthly rent of Rs. 700 -Agreement
c entered into between the tenant and plaintijf-la11dlord that tenant
shall pay Rs.l /akh to plaintijf-la11dlord who proposed to construct
a RCC building in place of Assam Type House - Monthly rent fixed
was Rs.2400 - It was agreed that the advance of Rs.I lakh would
be adjusted from 111011/h/y rent @ 50% and tenant shall pay to
D landlord in cash, balance rent of 50% till adjustment of advance in
full - Tenant was put in possession in April 1990 - Howeve1; tenant
continued to pay rent@ Rs. 700 p.111. and ji-0111 April 1994 started
depositing Rs. 700 in court - Suit for eviction claiming arrears from
August 1996 till August 1999 @ Rs.2400 p.111. - Prior to August
1996, claim not made a~ it was time barred - Trial court held that
E
tenant was defaulter - Appellate court upheld the said finding -
Appellate court also took into consideration the total amount of
Rs. l.82 lakhs that was paid by tenant and qfter adjusting the same
in the rent to which plaintiff was entil/ed, it held that still the tenant
was defaulter to the tune of Rs. 7614 - Revision - High Court upheld
F the finding of the Appellate court - On appeal. held: In view of
terms of the Agreement and as per findings recorded by the Appellate
Court as well as High Court, the 111on1'1/y rent ji-om April, 1990 was
Rs.24001- - Taking into co11sidera1ion Cl. 7 of the Agree111ent, which
provided for adjustment of 50% of the rent towards advance and
payment of rent @ Rs.12001-, the tenant was liable to pay rent @
G
Rs.12001- - The other part of Rs.1200/- was to be adjusted towards
the advance made - Thus, lawful payment which plaintiff-landlord
was entitled to receive was Rs.12001- - Ad111ittedly, the tenant paid
only Rs. 7001-, even after taking possession 4 shop in April, 1990
and deposited the same a111ount in the court ji·om April, 1994 - The
H deposit made by the tenant in the court was not the deposit of the
564
MANIK CHAND JAIN v. MD. AHIYA 565

lawful rent and, therefore, no error was committed by the courts A
below in holding the defendant as defaulter - No inte1jerence in
exercise of jurisdiction u/Art. 136 called for - Rent control and
eviction.
Dismissing the ap1)eal, the Court
HELD: Section 5 of the 1972 Act, contains a heading "Bar B
against passing and execution of decree and order for ejection".
The provision of Section 5(l)(e) clearly indicates that where the
tenant has not paid the rent lawfully due from him in res1)ect of
the house within a fortnight of its falling due, he is not saved from
ejectment. Section 5 sub-section (4) further provides that where c
the landlord refuses to accept the lawful rent offered by his tenant,
the tenant may, within a fortnight of its becoming due, deposit in
Court the amount of such rent together with process fees for
service of notice upon the landlord. In view of Clause 6 of the
Agreement and as per findings recorded by the Appellate Court
as well as High Court, the monthly rent from April, 1'990 was D
Rs.2400/-. Clause 7 of the Agreement refers to the adjustment
of the rent to the extent of 50% of the rent and further
contemplates payment of 50'Yo of rent in cash. Thus the liability
of the defendant to pay· the rent from the date of taking the
possession in cash was Rs.1200/- with adjustment of balance E
Rs.1200/-. The advance was to be adjusted in accordance with
the aforesaid condition. Lawful rent in cash, which was to be paid
by the defendant-tenant was Rs. 1200/- per month. Right from
April, 1990 till the institution of suit, defendant-tenant has claimed
the payment of rent at the rate of Rs.700/- per month only. Lawful
rent, thus, was not paid by the defendant-tenant to which the F
plaintiff-landlord was entitled to as per Agreement dated
01.08.1988. The Agreement dated 01.08.1988 being admitted to
the tenant, he cannot be heard in saying that by mere payment of
Rs. 700/- per month i.e. payment at the old rate, he can be saved -·
from the eviction. The findings of the Appellate Court that G
defendant is defaulter affirmed by the High Court are findings of
the facts based on appreciation of entire evidence. There is no
error in the judgment and order of the Appellate Court directing
eviction and arrears of rent. The High Court did not commit any
error in dismissing the revision. [Paras 14, 15, 16, 19 and 20]
[570-A-B, F-ll; 571-A-B; 572-G-II; 573-A-ll] H
566 SUPREME COURT REPORTS [2017] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3421
of2017.
From the Judgment and Order dated 21.03.2013 of the High Court
ofGauhati in Civil Revision Petition No. 380of2012.
Rajiv Dhavan, S. R. Singh, Sr. Advs., Manish Goswami,
B Ramesh war Prasad Goyal, Ad vs. for the Appellant.
Kumar Parimal, Aniruddha P. Mayee, Advs. for the Respondent.
The Judgment of the Court was de! ivered by
ASIIOK BHUSIIAN, J. 1. This appeal has been filed by the
c appellant-tenant against the judgment dated 21.03.2013 of Gauhati High
Court by whichjudgn!ent Civil Revision Petition No. 380 of2012 filed
by the appellant against the judgment of the Appellate Court directing
the eviction of the appellant had been dismissed.
2. Brief facts of the case necessary to be noted for deciding this
D appeal are:
The app~llant was the tenant since 1965 in respect of a Assam
Type House ai1d paying re~1t at the rate of Rs. 7001- per month. An
agreement was entered into between the defendant-tenant and the
plaintiff-landlord on 01.08.1988 by which it was agreed that the appellant
E shall pay an ainount of Rs.1,00,000/- in three installments to the
respondent-landlord who proposed to construct a RCC building i1rplace
of Assam Typ~ House. The appellant was to be given the shop after
construction of room in his occupation. It was fu11her agreed that monthly
rent of the RCC shop room would be at the rate of Rs. I 0/- per Sq. ft.
The room proposed was 24ft. X 1Oft. It was further agreed that the
F
advance of Rs. 1,00,000/- shall be adjusted from the monthly rent at the
rate of 50% and tenant shall pay to the landlord in cash, the balance rent
of 50% till the aforesaid advance is adjusted in full. The construction of
the shop room was completed in April, 1990.
3. The appellant obtained an order under 144 Cr.P.C. and was
G put in possession of the newly constructed RCC shop room in April,
1990. However, the appellant continued to pay rent at the rate of
Rs. 700/- per month. From April, 1994, the appellant started depositing
rent of Rs. 700/- per.month in the court of Sadar MunsifNo. I under the
p1~ovisions of the Assam Urban Areas Rent Control Act, I972(hereinafter
H referred to as '1972 Act') in a miscellaneous case.
MANIK CHAND JAIN v. MD. AHIYA 567
[ASHOK BHUSHAN, J.]

4. The respondent-plaintiff filed Title Suit No. 174of1999 praying A
for decree of ejectment in respect of suit premises and a decree for
recovery of Rs.86,400/- as arrears of rent alongwith interest. The
· respondent-plaintiff also claimed ejectment on the ground of bona fide
need for setting up his son in the business. The plaintiff's case was that
in view of the agreement dated 01.08.1988 the rate of rent was
B
Rs.2400/- per month from the date of possession. The construction was
completed in April, 1990. The possession of RCC shop room was taken
by the appeilant in April, ,1990 and as per agreement, he was liable to
pay Rs.2400/- per month out of which, Rs. l 200/- was to be paid in cash
and Rs.1200/- was to be adjusted against the advance made.
5. In the suit, plaintiff-landlord claimed arrears from 01.08.1996
c
till 31.08.1999 at the monthly rent of Rs. 2400/-. The plaintiff-landlord
did not claim the rent prior to 01.08.1996, as that had become barred by
time .
.6. A written stat_ement was filed by the tenant; in the written
statement, it was claimed that at the present moment monthly rent is D
only Rs.700/-. Defendant-tenant pleaded that he had agreed to pay
Rs.2400/- per month on completion of construction and since shop is not
complete, there is no question of cash payment of Rs.1200/- and
adjustment of Rs.1200/-. He claimed that total amount paid to the plaintiff
was Rs.2,09,360/-. Both plaintiff and defendant filed their evidence and E
were cross-examined.
7. The trial court framed ten issues. Trial court held that
construction of premises was complete in April 1990. Trial court, however,
held that rent is Rs.700/- per month which shall be treated as Rs.2400/-
per month from the date ofjudgment. Issue No. 5 was answered holding F
that defendant is a defaulter. Trial court further held that total amount
paid by the defendant is Rs.1,82,785.95. Trial court passed an order
holding the plaintiffentitled for recovery of possession. Trial coui1 ordered
plaintiff to deposit Rs.1,82,785.95 before execution. Aggrieved by the
judgment of the trial court, the defendant filed an appeal. A cross appeal
was also filed by the plaintiff. G
8. The Appellate Court vide its judgment dated 21.06.2012
considered the evidence on the record pertaining to issue No. 3 which
was regarding the rate of monthly rent. Appellate Court returned the
finding that monthly rent of suit premises was Rs.2400/- per month from
the date of possession. The finding recorded by the trial court that H
568 SUPREME COURT REPORTS [2017) 3 S.C.R.

A defendant is a defaulter was affirmed by the Appel late Court. Appellate
Court also took into consideration, the amount of Rs.1,82,785.95 and
after adjusting the same in the rent to which plaintiff was entitled, it was
held that still the defendant is defaulter to the tune of Rs.7614/-. The
appeal filed by the defendant was dismissed whereas cross appeal of
the plaintiff was allowed. It was held that the plaintiff is entitled to get
B
decree of ejectment and recovery of arrears of rent amounting to
Rs.7614/-.
9. The defendant aggrieved by the judgment of the Appellate Court
filed the civil revision before the High Court. High Court considering the
submissions of both the parties upheld the finding of the Appellate Court
c that defendant is defaulter. High Court also held that the rate of rent
was Rs.2400/- per month from the date of taking possession i.e. April,
1990. The deposit of rent at the rate of Rs.700/- was not held to be valid .
deposit within the meaning of Section 5(4) of the 1972 Act. This appeal
has been filed against the dismissal of the civil revision of the defendant
D by the High Court.
I 0. Learned senior counsel, Dr. Raj iv Dhawan, appearing on behalf
of the appellant contended that High Court did not advert to the question
of adjustment of advance rent which admittedly was advanced by the
defendant to the plaintiff to the tune of Rs.1,82, 185.951-, hence, the
E judgment of the High Court is erroneous. He further contends that in the
suit plaintiff claimed arrears ofrent only from 01.08.1996 to 31.07.1999,
for which period the total amount due at the rate of Rs.2400/- is only
Rs.86,400/- and after taking into consideration the rent paid at the rate
ofRs.700/- per month, there is still surplus rent in view of the advance
made and the cou11s below had committed error in holding the defendant
F as defaulter. It is further contended that plaintiff had accepted the rent
ofRs.700/- per month till April, 1994 and after April, 1994 till July 1999
ifthe total rent due is calculated it shall come as Rs.1,53,600/- and taking
into consideration the rent paid and the advance amount there shall still
be surplus hence, the finding of the default is unsustainable.
G 11. Learned counsel for the respondent refuting the submission of
the counsel for the appellant contei1ds that in view of the agreement
,. dated 01.08.1988, the tenant was liable to pay Rs.2400/- from the date
of taking possession and out of the rent of Rs.2400/-, Rs.1200/- was to
be adjusted towards advance and Rs.1200/- was to be paid in cash.
H Admittedly, the defendant claims the only payment of Rs. 700/- per month
MANIK CHAND JAIN v. MD. AHIYA 569
[ASHOK BHUSHAN, J.]

since Apri I 1990 ti II ti Iing of the suit, hence there is a clear default since A
the rent became due of Rs.2400/- per month from April, 1990 and the
courts below have rightly come to the conclusion that default has been
committed by the defendant.
12. We have considered the submissions of the learned counsel
for the parties and perused the record. There is no dispute between the B
parties that the rent of the shop room, an Assam Type House Construction,
was Rs.700/- per month. The plaintiff-landlord proposed to construct
the RCC building in place of the above Assam Type House including the
room, which was in occupation of defendant. An agreement dated
01.08.1988 was entered into between the parties, which agreement is
admitted to both the parties. The agreement records that the second
c
party is willing to advance a sum of Rs.1,00,000/- and further a security
amount ofRs.50,000/- at the time of handing over the possession. Paras
6 and 7 of the agreement are relevant, which are to the following effect:
"6. That the monthly rent of the RCC room shall be at the
rate of Rs. 101- (Rupees ten only) per square fit and shall be D
·payable within the first week of every subsequent month
falling due. The height of the RCC room will be 16' as per
approved G M C. Plan. The leng1h of the RCC room v.iill
be 24' fit and the breaih will 1O' at the minimum. It may be
·mentioned that if the floor of the RCC room after completion E
construction exceeds more than 24' x 10 1 sq. ft. the second
party shall pay the monthly rent at the agreed rate/or the ·
entire floor area under the possession of the second party.
7. That the advance amount of Rs. 1, 00, 0001- (Rupees one
lakh) are adjusted ji-0111 the monthly rent at the rate of 50% .F,
and the second party shall pay to the first party only the
balance rent of 50% till the aforesaid advance is adjusted
in full."
13. From the pleadings of the parties, it is clear that new
construction was completed by April, 1990 and the defendant was put in G
r possession of the shop room in April, 1990. Appellate Court, after
considering the evidence on record has held that the monthly rent of the
shop premises is Rs. 2400/- per month from the date of taking possession
i.e. April, 1990. It is the case of the defendant that even after taking t!1e: <::'·,
possession of newly constructed shop he has paid the rent at the rate of
Rs. 700/- per month which was the old rate of rent. From April, 1994, H
570 SUPREME COURT REPORTS [2017) 3 S.C.R.

A the defendant claims to deposit the rent i.e. Rs. 700/- per month in the
court in the miscellaneous case.
14. Section 5 of the 1972 Act, contains a heading "Bar against
passing and execution of decree and order for ejection". Section 5( 1)(e)
and Section 5(4) which are relevant for the present case are as follows:
B "5(1). No order or decree for the recovery of possession of
any house shall be made or executed by any Court so long
as the tenant pays rent to the full extent allowable under this
Act and performs the conditions of the tenancy:
Provided that nothing in this sub-section shall apply in a
c suit or proceedings for eviction of the tenant from the house:-
(a)... .........
(e) where the tenant has not paid the rent lm1fully due
from him in respect of the house within a fortnight of its
falling due, or
D
(4). Where the landlord refuses to accept the lawful rent
offered by his tenant, the tenant may, within a fortnight of
its becoming due, deposit in Court the amount of such rent
together with process fees for service of notice upon the
E landlord, and on receiving such deposit, the Court shall cause
a notice of the receipt of such deposit to be ~erved on the
landlord, and the amount of the deposit may thereafter be
withdrawn by the landlord on application made by him to
the Court in that behalf A tenant who has made such deposit
shall not be treated as a defaulter under clause (e) of the
F proviso to sub-section(l/ of this section. "
15. The provision of Section 5(1 )( e) clearly indicates that where
the tenant has not paid the rent lawfully due from him in respect of the
house within a fortnight of its falling due, he is not saved from ejectment.
Section 5 sub-sectio11 {4) fu11her provides that where the landlord refuses
G to accept the lawful rent offered by his tenant, the tenant.may, within a
fortnight of its becoming due, deposit in Court the amount of such rent
together with process fees for service of notice upon the landlord.
16. In view of Clause 6 of the Agreement dated 01.08.1988 and
as per findings reco~ded by the Appellate Court as well as High Court
H monthly rent from April, 1990 was Rs.2400/-. Taking into consideration
MANIK CHAND JAIN v. MD. AHIYA 571
[ASHOK BHUSHAN, J.]

Clause 7 of the Agreement, which provided for adjustment of 50% of A
the rent towards advance and payment of rent at the rate of Rs.1200/-,
the defendant was liable to pay rent at the rate of Rs.1200/-. The other
part ofRs.1200/- was to be adjusted towards the advance made. Till the
entire advance is not adjusted the rent was also not to be increased as
per condition of the agreement. Thus, lawful payment which was entitled
B
to be received by the plaintiff-landlord was Rs.1200/-. Admittedly, the
defendant-tenant has paid only Rs.700/-, even after taking possession of
shop in April, 1990 and deposited the same amount of Rs.700/- in the
court from April, 1994. The deposit made by the defendant-tenant in the
court was not the deposit of the lawful rent and no error has been
committed by the courts below in holding the defendant as defaulter. c
The decree passed by the Appellate Court for ejectment and arrears of
rent as confirmed by the High Court was based on appreciation of relevant
evidence on record.
17. The submission which has been pressed by Dr. Raj iv Dhawan
is non-consideration of adjustment of advance to the extent of D
Rs.1,82,785.95/- by the High Cou1t. Although the High Court has not
considered the question of adjustment of the advance rent, but the
Appellate Court has specifically considered the adjustment of the above
advance. It is useful to extract the detail consideration by the Appellate
Court towards the adjustment of above advance. Following has been
E
held by the Appellate Cou1t:
"It is admitted by the defendant in his written stalement !hat
the defendant took possession of the newly construcled suit
room in the monlh of April, 1990 and in issue No. 3 it is
decided !hat the defendant is liable to pay rent to Rs. 24001
- p.m. since the 111onth of April, 1990 but the defendant has F
paid only at the rate of 7001- p.m. in re~pect of suit room till
dale. Since the monlh of April, 1990 till July, 1999(date of
filing suit) the defendant is liable to pay rent at the rate of
2400/-p.m. for a period of 112 111011/hs which comes to Rs.
2,68,8001- (Rs.24001- x 112 111011ths). But the defendant has G
paid the rent at the rale of 7001- p.111. for the said period
which comes to Rs. 78, 4001- hence the defendant is liable
to pay arrear rent of Rs.I, 90, 4001- till the monlh of July,
1999. Jn issue No. 8 it is held that !he defendant paid
Rs.1,85, 785.95 in favour of plaintiff as advance and
H
572 SUPREME COURT REPORTS [2017) 3 S.C.R.

A security. So, after adjustment of said advance of
Rs.1,82, 785.95 from the an'ear due of Rs.J,90,4001-, the
arrear rent of Rs. 7614.05 (Rs. 1,90,.1001- - Rs. 1,82, 785.95)"
remains due till the 111011/h of July. 1999. From the above, it
is clear that no advance amow1t remain to be adjusted. The
advance amount has already been adjusted with the monthly
B
rent and the plaintiff is entitled to receive arrear rent of Rs.
7614.05. As the plaintiff has not clai111ed future rent, hence
no relief can be granted to him for future rent.
Jn view of the decision of the foregoing points, the Appeal is
dismissed and the cross appeal is partly allowed with cost.
c The plaintiff is entitled to get the decree for ejectment of the
defendant from the Schedule A premises by removing his men
and materials and recovery of arrear rent of Rs. 7611.05.
Prepare the decree accordingly. "
18. From the foidings of the Appellate Cou1t, as noted above, it is
D clear that even after adjustment of the entire advance amount still there
is a default of Rs. 7614/-. The appellate Court, thus, proceeded to adjust
the entire advance made by the defendant and still default having been
. found decree of ejectment had been passed which needs no interference
by this Court in exercise of our jurisdiction under Article 136.
E 19. The default on the part of defendant is also proved looking
... - -~·
.into the matter in accordance with the Agreement dated 0 l.08.1988.
We have already extracted Clause 7 of the Agreement which refers to
the adjustment of the rent to the extent of 50% of the rent and further
contemplates payment of 50% of rent in cash. Thus the liability of the
F defendant to pay the rent from the date of taking the possession in cash
was Rs.1200/- with adjustment of balance Rs.1200/-. The advance
was to be adjusted in accordance with the aforesaid condition. Lawful
rent in cash, which was to be paid by the defendant-tenant was Rs. 1200/-
per month. Right from April, 1990 till the institution of suit, defendant-
tenant has claimed the payment of rent at the rate of Rs.700/- per month
G only. Lawful rent, thus, was not paid by the defendant-tenant to which
the plaintiff-landlord was entitled to as per Agreement dated 01.08.1988.
TheAgreement dated 01.08.1988 being admitted to the tenant, he cannot
be heard in saying that by mere payment of Rs. 700/- per month i.e.
payment at the old rate, he can be saved from the eviction.
H
MANIK CHAND JAIN v. MD. AHIYA 573
[ASHOK BHUSHAN, J.]

20. In view of the foregoing discussion, we are of the co11sidered A
opinion that Appellate Court has rightly considered the entire evidence
on record and answered the issues framed by trial court correctly. The
findings of the Appellate Court that defendant is defaulter affirmed by
the High Court are findings of the facts based on appreciation of entire
evidence. We do not find any error in the judgment and order of the
B
Appellate Court directi1Jg eviction and arrears of rent. The High Cou11
did not commit any error in dismissing the revision.
2 I. In result, the appeal is dismissed.

Devika Gujral Appeal dismissed.