UMESH CHAND GANDHIversus1 ST ADDL. DIST. AND SESSIONS JUDGE AND ANR.

A                          UMESH CHAND GANDHI
                                          v.
           1 ST ADDL. DIST. AND SESSIONS JUDGE AND ANR.

                              SEPTEMBER 23, 1993

B                  [K. RAMASWAMY AND N.P. SINGH, JJ.)

                                                                                   (
           U.P. (Urban Building Regulation of Letting Rent and Eviction) Act,
    1972-Section 39--Deposit made by tenant falling short of the amount re-
    quired to be deposited-Applicability of the principle of substantial com-
c   plia11ce/de minimus non curet lex.

          Section 39 of the U.P. (Urban Building Regulation or Letting Rent
    and Eviction) Act, 1972 conferred right on the tenant to absolve the default
    by depositing the arrears, interest accrued thereon, and full costs of the
    suit within one month from the date of commencement or the Act.
D
         The respondent landlord initiated proceedings in the court of Small
    Causes for ejectment of the Appellant/tenant on the ground of default.

           Due to an error in the calculation there was a short fall in making
    the deposit. The Trial Court decreed ejectment. The Dist. Judge, in
E
    revision, held that the appellant had substantially complied with Section
    39 and the shortfall in deposit was due to bonafide mistake in calculation.
    The landlord filed a writ petition before the High Court. A Single Judge
    referred the matter to the Division Bench for decision on the question as
    to whether the Court had the jurisdiction to go into the question of
F   bonafide mistake of calculation or substantial compliance. The Division
    Bench held that the tenant would not be entitled to get the benefit of the
    rule de minimus. Basing on this finding, the Single Judge allowed the Writ
    petition, set aside the order of the appellate authority and granted decree
    of eviction.
G         Disposing of the appeal, by special leave, preferred by the tenant,
    this Court

          HEt'D : 1.1. Section 39 of the UP (Urban Building Regulation of
    Letting Rent and Eviction) Act, 1972 confers right on the tenant to absolve
H   his default and save his tenancy P,rovided he complied with the conditions
                                     '
                                         514
                                                                                   •
                        GANDHI v. SESSIONS JUDGE                          515

prescribed therein, namely, deposit of arrears into the court made within       A
one month from the date of the commencement of the Act or from the date
of his knowledge of pendency of the suit whichever is later. (517-E]

      1.2. The theory of substantial compliance is not a compliance of S.39.
But when there is a bonafide mistake in calculation, the burden is on the
tenant to establ' sh by adducing evidence, regarding the bonafides in com-      B
mitting mistake. If the Court is satisfied that the tenant committed
bonafide mistake in computation of the three components referred to in
Sec.39 or anyone and there is a default in compliance thereof, if the amount
in deficit is small, it would ignore the said mistake applying de minimus
principle and refuse decree for eviction. The mistake in calculation must       C
be due to the above bonafide mistake. [517-G-H; 518-A]

       1.3 It is settled law ~t the courts of justice generally do not take
trifling and immaterial matters into account except under peculiar cir-
cumstances. The strictness or harshness or inflexibility would lead to
injustice or miscarriage of justice. Therefore, in working out equities, the D
court would apply in general the maxim "de minimis non curet lex". (518-B]

       1.4 Bona fide mistake may occur in myriad circumstances but it
depends upon each case. Neither rigid nor exhaustive nor inflexible rule
could be laid cutting its amplitude into mathematical formula, in which
even also it would lead to miscarriage of justice or injustice. The division    E
bench has rightly left the question to the discretion of the courts ander the
Act to consider in each case in the given facts and circumstances whether
non-compliance was bona fide and trifle, and then' to grant relief accord-
ingly, [518-D]
                                                                                F
      1.5. There is no justification to put the compliance of Se.c. 39 in
straight jacket formula. Each case has to be con'sidered on its own facts
and'it is for the courts below to consider and decide on the basis of factual
matrix. [518-E]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3425 of G
1983.

     From the Judgment and Order dated 11-11-82 of the Allahabad High
Court in Civil Misc. Writ Petition No. 9296 of 1979.

        Joseph Vellapally and D .K. Garg for the Appellant.                     H
    516                   SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A         Satish Chandra and Yijay Kumar for the Respondents.

          The following Order of the Court was deliwrcd :

        The appellant/tenant had the demised premises on a monthly rent of
  Rs. 40 from Ram Lal, the landlord. Ram Lal initiated action for ejectment
B of the appellant in the Court of the Small Cause (District Munsif), Saharan-
  pur under the U.P. (Temporary Control of Rent and Eviction) Act, 1947.
  Pending proceedings this Act was repealed and U.P. (Urban Building
  Regulation of Letting Rent and Eviction) Act, 1972, for short 'the Act'
  came into force w.e.f. July 15, 1972. Section 39 permitted the appellant to
c deposit the arrears, interest accrued thereon and full costs of the suit within
  one month from the date of the commencement of the Act. As on date a
  sum of Rs. 2,048 was due. Due to error in calculation a sum of Rs. 1,944
  was deposited within one month leaving a deficit of Rs. 104. The Trial
  Court decreed ejectment, but on revision, the Dist. Judge held that the
D appellant had substar1tially complied with s.39. A sum of Rs. 104 was not
  deposited due to bonafide mistake of calculation. Though alternative
  remedy was available, Ram Lal instead filed a writ petition in the High
  Court under Art. 227 in Civil Misc. Suit Petition No. 9296/79. When the
  matter came up before the learned Single Judge, the respondent restricted
E his case to three contentions, namely: (1) When the tenant committee
  default in deposit of the full amount within one month as enjoined under
  s.39, whether the court has jurisdiction to go into the question of bona fide
  mistake of calculation; or substantial compliance; (2) whether the tenant
  should not be treated as a defaulter; and (3) whether the finding of the
  courts below that the short fall in the deposit made by the tenant was
F caused by a bona fide mistake of calculation is manifestly unsustainable.
  The learned Single Judge answered the latter two questions against Ram
  Lal but on the first question since there was a conflict of decisions, for its
   resolution referred the matter to the division bench which by its order
   dated September 10, 1982 held that "if the deposit made by a tenant falls
G short of the amount or amounts required to be deposited under s.39, the
   tenant would not be entitled to the principle of wbstantial compliance for
   the benefit of s.39." The court applying the principle of de minimis non
   curat lex held thus "if the amount is found to be small, which has no
   consequence, the court would be justified in ignoring the said mistake by
H extending the de minimis rule to such a case. As to what is a case deserving
                     GANDHI v. SESSIONS JUDGE                          517•

the benefit of the aforesaid rule is a question of fact to be decided in each A
case for which no rigid and exhaustive law can be laid down ...... In a case
of de minimis, the Court ignores the short fall and extends the benefit
contemplated by s.39 to the defaulting tenant. It will not grant any decree
of the amount short deposited. The defence of substantial compliance does
not absolve the tenant of his liability to pay the entire amount". It further B
held that whether the mistake to calculate arrears could have no conse-
quence at all and same cannot be regarded as false or misleading in a
material respect and hence a tenant is required to prove his bona fide by
bringing evidence of the reason, e.g. clerical mistake in calculation etc. for
getting the advantage of the rule of de minimis. On the facts in this case,
the division bench concluded that "we have noted that the total amount C
which the tenant was required to deposit was Rs. 1,944 (Rs. 2,048) and
there was a deficiency of Rs. 104. The amount of Rs. 104 was not a small
sum which could qualify the requirement of getting the benefit of rule. of
de minimis." On receipt of the finding on reference the learned Sing!~
Judge by the impugned judgment dated November 11, 1982 allowed the D
writ petition, set aside the order of the appellate authority and granted
decree of eviction. Thus this appeal by special leave.

       1.01 Section 39 confers right on the tenant to absolve his default and
save his tenancy provided he complied with the conditions prescribed
therein, namely, deposit of arrears into the court should be made within E
one month from. the date of the commencement of the Act or from the
date of his knowledge of pendency of the suit whichever is later : (1) the
entire amount of rent and damages for use and occupation; (2) with
interest @ 9 per cent annum; and (3) the landlord's full cost of the suit.
On compliance thereof the court is enjoined not to grant decree for p
eviction except on any other grounds mentioned in proviso to sub-s.(1) or
in Clauses (b) to (g) of sub-s.(2) of S.20. Thus s.39 gives further oppor-
tunity to the defaulting tenant to tender into the court of the aforesaid sum
to save his tenancy within the time envisaged therein lest he would be liable
to ejectment. Therefore, the division bench has rightly pointed out that the
theory of substantial compliance is not a compliance of s.39. But when G
there is a bona fide mistake in calculation; the burden is on the tenant to
establish by adduction of evidence his bona fides in committing the mistake.
On the Court's satisfying that the tenant committed bona fide mistake in
computation of the three components referred to earlier or anyone and
there is a default in compliance thereof, if the amount fa deficit is small, H
    518                   SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A court would ignore the said mistake applying de minimis principle and
    refuse decree for eviction. Therefore, the tenant has to act in good faith.
    The mistake in calculation must be due to the above bona fide mistake. It
    is settled law that the courts of justice generally do not take trifling and
    immaterial matters into account except under peculiar circumstances. The
    strictness or harshness or inflexibility would lead to injustice or miscarriage
B   of justice. Therefore, in working out equities, the court would apply in
    general the maxim "de minimis non curat lex''. The division bench, there-
    fore, rightly pointed out that the doctrine deserves extension giving the
    benefit to the tenant out it is a question of fact to be decide in each case.
    Bona fide mistake may occur in myriad circumstances but it depends upon
C   each case. Neither rigid nor exhaustive nor inflexible rule could be laid
    cutting it amplitude into mathematical formula, in which event also it would
    lead to miscarriage of justice or injustice. Accordingly we find that the
    division bench has rightly left the question to the discretion of the Courts
    under the Act to consider in each case in the given facts and circumstances
D   whether non-compliance was bona fide and was a trifle, and then to grant
    relief accordingly.

           Though the learned counsel for the appellant sought to contend that
    the case would require consideration at the hands of this Court, we find
    no justification to put the compliance of s.39 in a straight jacket formula.
E   Each case has to be considered on its own facts and it is for the courts
    below to consider and decide on the basis of factual matrix. In this case
    the High Court found that 'a deficit of Rs.104 is not a trifle. In the facts
    and circumstances, it calls for no interference by this court. The Appellant
    has been in possession of the demised premises for commercial use as a
F   shop. It is agreed by the parties across the bar that the appellant be given
    two years time from today for use and occupation of the demised premises.
    We approve of the consensus. The appellant shall pay the market rent from
    October 1, 1993. The learned Dist. Munsiff is directed to determine the
    prevailing market rent within a period of two months from the date of
    receipt of this order. On such determination the appellant shall pay the
G   same without taking any further judicial remedy of an appeal, a revision or
    a writ petition under Art.226 of the Constitution. He should pay the arrears
    within one month from the date of the determination of the market rent to
    the respondent against receipt or on his refusal to deposit the amount to
    the credit of the suit till he vacates the premises. The present rent shall be
H   continued to be paid till the date of determination of the inarket rent.
                    GANDHI v. SESSIONS JUDGE                        519

Arrears, if any, as on date shall also be deposited within a period of two A
months from today. It there ia ny default in payment of rent for two
successive months, it is open to the respondent to have the decree ex-
ecuted. The appellant shall file usual undertaking in this Court within a
period of six weeks from today. The appeal is disposed of accordingly. No
costs.
                                                                          B
B.V.B.                                              Appeal disposed of.