RAMA KANT AND ORS.versusSONA DEVI

A                            RAMA KANT AND ORS.
                                          v..
                                    SONA DEVI

                               FEBRUARY 21, 2002

B                   [SYED SHAH MOHAMMED QUADRI AND
                           DORAISWAMY RAJU, JJ.]


            Rent Control and Eviction :

C           Haryana Urban (Control of Rent and Eviction) Act, 1973:

           S.13(2), first proviso-Rent tendered by son of tenant-Va/id tender of
    rent-Non-residential premises-Eviction petition against tenants for non-
    payment of rent-Son of one of the tenants tendered the rent as provided in
D   firsi proviso to s. 13(2)-Landlady accepting rent without prejudice to her
    rights-Rent Controller dismissed eviction petition holding that there was a
    valid tender of rent-Appellate Authority ordered eviction of tenants holding
    that tender ofrent could not be treated as a valid tender-High Court dismissing   ).-
    revision of tenants-Held, the son of the tenant while tendering the rent never
    claimed that he was tendering it as a sub-tenant-In his statement he did say
E   that he tendered the rent on behalf of his fath~r-Tender of rent by him was
     as a member offamily of the tenant-When rent is tendered by any member
    of tenant's family to landlord without any inconsistent claim, it cannot but be
    for and on behalf of the tenant-It therefore, cannot be said that tender ofrent
     by tenant's son was not a valid tender.

F         Pushpa Devi and Ors. v. Milkhi Ram (dead) by his Lrs., (1990] 2 SCC 134
    and Maghi Lal (dead) through Lrs. v. Kundan Lal and Ors., (1994] Supp. 2 SCC
    444, referred to.
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6724 of
    1999.
G        From the Judgment and Order dated 18.3.99 of the Punjab and Haryana
    High Court in C.R. No. 2864 of 1998.
         R.P. Bansal, Sanjay Agarwal, S.K. Verma and P.R. Kumar for the
    Appellant.

H         Pradeep Gupta for K.K. Gupta for the Respondent.
                                          14
                        RAMA KANT v. SONA DEVI                                15

      The following Order of the Court was delivered :                              A
      The point that arises for consideration in this appeal is whether the first
appellant, a tenant, can avail protection of the first proviso to Section 13(2)
of the Haryana Urban (Control of Rent and Eviction) Act, 1973 on payment
of the arrears ofrent and other amounts specified therein by the third appellant,
~~.                                                                                 B
      This appeal is from the order of the High Court of Punjab and Haryana
at Chandigarh dismissing the appellants' Civil Revision No. 2864of1998 on
March 18, 1999. Appellant Nos. l and 2 are brothers and are tenants of a
shop bearing No. 680/17 situated in Prem Market, New Subzi Mandi Road.
Kaitahal (for short. 'the premises'). The respondent is the landlady of the C
premises. On July 1, 1990, a rental agreement was executed between the
respondent and appellant Nos. l and 2 agreeing to let out the premises on a
monthly rent of Rs. 750 plus house tax. Appellant No. 3 who is the son of ·
appellant No. l, has been residing with him and helping him in his business.
The respondent filed eviction petition on the ground of non-payment of rent D
of the premises from October l, 1995 till the date of filing of the case on
December 6, 1995 under Section 13(2) of the Haryana Urban (Control of
Rent and Eviction) Act, 1973 (for short, 'the Act')

       The appellants contested the case. Appellant No. 3 paid the arrears of
rent for the said period together with other specified sums. The respondent         E
accepted the same without prejudice to her rights. The appellants contended
that it was a valid tender on behalf of the first appellant.

      The learned Rent Controller accepted the contention of the appellants
that there was a valid tender of rent within the ambit of the said provision
and dismissed the eviction petition on March 31, 1997. However, on appeal           F
by the respondent, the Appellate Authority took the view that the tender of
rent by appellant No. 3, could not be treated as a valid tender as being for
and on behalf of the first Appellate ordered eviction of the appellants and
thus allowed the appeal on May 16, 1998. The appellants unsuccessfully
assailed the order of the Appellate Authority before the High Court in Civil        G
Revision No. 2864 of 1998. On dismissal of their revision by order dated
March 18, 1999, the appellants have come up in appeal by special leave of
this Court.

     Mr. R.P. Bansal, the learned senior counsel appearing for the appellants,
contends that the rent tendered by appellant No. 3 was accepted by the              H
    16                      SUPREME COURT REP.ORTS                  [2002) 2 S.C.R.

A respondent without prejudice which only means that acceptance of rent would          T
    not prejudice the other proceedings pending between the same parties, therefore
    payment of rent should be treated as a valid tender within the meaning of the
    first proviso of Section (2) of Section 13 of the Act. He invited our attention
    to the following decisions of this Court: Pushpa Devi and Ors. v. Milkhi Ram
B   (dead) by his Lrs., [1990] 2 SCC 134 and Maghi Lal (dead) through Lrs. v.
    Kundan Lal and Ors., [1994] Supp. 2 SCC 444.

          Shri Pradeep Gupta, the learned counsel for the respondent, on the
    other hands, contends that appellant No. 3 though a son, was alleged to be
    a sub-tenant and on that ground another eviction proceeding is pending ·
C   between the parties and therefore rent tendered by him could not be treated
    as a valid tender in the present case.

         We may refer to the relevant provision of Section 13(2) of the Act
    which reads as under:

         "Section 13. Eviction of tenants-
D
           (2) A landlord who seeks to evict his tenant shall apply to the
           Controller for direction in that behalf. If the Controller, after giving
           the tenant a reasonable opportunity of showing cause against the
           application, is satisfied :-

E          (i) that the tenant has not paid or tendered that rent due from him in
           respect of the building or rented land within fifteen days after the
           expiry of the time fixed in the agreement of tenancy with his landlord
           or in the absence of any such agreement by the last day of the month
           next following that for which the rent is payable:

F          Provided that if the tenant within a period of fifteen days of the first
           hearing of the application for ejectment after due service, pays or
           tenders the arrears of rent and interest to be calculated by the
           Controller, at eight percent per annum on such arrears together with
           such costs of the application, if any, as may be allowed by the
           Controller, the tenant shall be deemed to have duly paid or tendered
G          the rent within the time aforesaid:
           Provided further that the landlord shall not be entitled to claim arrears
           of rent for a period exceeding three years immediately preceding the
           date of application under the provision of this Act;

H          xxx                             xxx                          xxx
                         RAMA KANT v. SONA DEVI                                17
       From a perusal of the above noted provision, it is plain that not paying      A
or rendering rent due by a tenant in respect of the building or rented land
within 15 days after the expiry of the time fixed in the agreement of tenancy
or in the absence of any such agreement by the last day of the month next
following that for which the rent is payable, gives cause of action to a landlord
to seek eviction of the tenant by applying to the Controller for a direction in
that behalf. By the deeming provision of the first proviso to sub-section (2),       B
quoted above, the right of the landlord to seek eviction on the ground of non-
payment of rent gets defeated if the tenant within a period of fifteen days of
the first hearing of the application for ejectrnent after due service, pays or
tenders the arrears of rent and interest, to be calculated by the Controller, at
eight percent per annum on such arrears together with such costs of the              C
application, if any, as may be allowed by the Controller, the tenant shall be
deemed to have duly paid or tendered the rent within the time aforesaid.

      It may be relevant to note here that while granting leave it was pointed
out that the said two decisions need to bi examined as no reasoning was to
be found in the latter decision.                                                     D
      It would be useful to refer to the aforementioned decisions before
adverting to the contentions of the learned counsel.

       In Pushpa Devi's case (supra) one Amar Chand had taken the premises
on rent. He along with his brother Diwan Chand and another person S~iig              E
Ram had constituted a partnership firm. On the death of Amar Chand, tis
brother Diwan Chand and on his death his widow Pushpa Devi and her minor
son Yash Pal became the tenant. They along with Salig Ram continued as
partners of the firm. The question in that case was, whether rent tendered on
behalf of all the appellants including Salig Ram was a valid tender within the       F
meaning of Section 13(2) of the East Punjab Urban Rent Restriction Act,
1949 (hereinafter referred to as. 'the Rent Act'). It was held that tender of
rent was valid. This Court pointed out that the said provision appeared to be
analogous to Section 114 of the Transfer of Property Act which conferred
discretion to the Court to grant relief against forfeiture for non-payment of
rent and that the proviso in the Rent Act went a step further leaving no             G
discretion to the Controller or court even if the tenant was a constant defaulter,
provided the arrears and other amount specified were paid or tendered on the
first date of hearing.

    In Maghi Lal 's case (supra) the original lease was in favour of the said
Maghi Lal. After the lease he formed a partnership with two others and those         H
    18                       SUPREME COURT REPORTS                   [2002] 2 S.C.R.

A two persons tendered the rent. Inasmuch as they were not the tenants, this
    Court held that the landlord was not obliged to accept the payment of rent           I

    recognising them as "tenant''. In that case Pushpa Devi's case (supra) was
    distinguished on the facts of that case.

           It may be pointed out that in Pushpa Devi's case, Amarchand had taken
B the premises on rent as a partner of the· firm. The advocate appearing for all
    the partners tendered the rent. The objection there was on the ground that one
    of the three partners for whom the advocate was appearing, namely, Salig
    Ram was not a party to the rental agreement, therefore, the tender of rent by
    the advocate was not valid. The objection was turned down by this Court. In
c   Maghi Lal 's case (supra), Maghi Lal taken the premises in his individual
    capacity and later entered into partnership. Payment of rent by the other
    partner who was not the tenant, was held to be not a valid tender.

          In the instant case, appellant No. 3 who paid the rent is admittedly the
    son of appellant No. I. It is not in dispute that under proviso to sub-,.section
D   (2) of Section 13, the rent due was ~id by appellant No. 3. The controversy,
    however, is that tender of rent by appellant No. 3 who is admittedly not a
    tenant though accepted, is not a valid tender within the meaning of the first
    proviso. It may be noticed here that while tendering the arrears of rent he
    never claimed that he was tendering it as the sub-tenant. In his statement in
    the witness box he did say that he tendered the rent on behalf of his father.
E   The tender of rent by appellant No. 3 was as a member of family of the first
    appellant. When rent is tendered by any member of the tenants' family to the
    landlord without any, inconsistent claim, it cannot but be for and on behalf
    of the ten~nt. In ~ie~ of th is position it cannot be said that the tender of rent
    by appellant No. 3 was not a valid tender.                                            >--
F
           For the aforementioned reasons, we are unable to sustain the impugned
    order of the High Court, confirming the order of the Appellate Authority. It
    is set aside accordingly and the order of the learned Rent Controller is restored.
    Consequently, the eviction petition shall stand dismissed. The appeal is
    allowed; in the facts and circumstances of the case, we make no order as to
G   costs.                                                                               .........

    R.P.                                                            Appeal allowed.