1. This is a second appeal filed by the defendant-appellant against the judgment and decree of the lower appellate Court decreeing a suit for ejectment, arrears of rent and damages after setting aside the decree passed by the trial Court dismissing the suit.
2. The house, in respect of which the suit was filed and of which the defendant-appellant is a tenant, belongs to a waqf. The father of the plaintiff-respondent was the mutwalli of the waqf. On the death of the father, according to the plaintiff-respondent, he and his brother (Raflqual Qadar) became mutwallis and used to manage the property. The appellant was admittedly the tenant of this house on a monthly rent of Rs. 4. There was a litigation in the year 1948 regarding the recovery of rent in respect of this house but it ended in favour of the appellant, the Court finding that no amount was due from the appellant as he had deposited all the rent due from him. Later, it appears that a suit under Section 92 of the Code of Civil Procedure was filed by some of the beneficlaries of the waqf for the removal of Raflqual Qadar from mutwalliship and for taking accounts from him. In 1957 that suit was decreed by the District Judge, Raflqual Qadar was removed and the plaintiff-respondent was appointed mutwalli.
3. On September 26, 1961, the plaintiff respondent sent a notice to the appellant, terminating the tenancy and demanding payment of arrears of rent Subsequently, on November 21, 1961, the respondent sent a fresh notice to the appellant, again terminating the tenancy, demanding arrears of rent due till then and requiring the appellant to vacate the house within one month This notice was served on the appellant on November 23, 1961 On December 16, 1961, the appellant filed an application under Section 7-C (2) of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act) for depositing the rent due from him from September, 1958 to November, 1961, in Court. The Munsif, before whomthe application was made, permitted the appellant to deposit the rent and on December 19, 1961, the appellant deposited the entire rent in Court. Thereafter he continued to deposit regularly the rent as it fell due. Ignoring this deposit, the respondent on February 13, 1962, filed the suit, out of which this appeal arises, for ejectment arrears of rent and for damages. The suit was filed under Section 3 (1) (a) of the Act on the allegation that the appellant was in arrears of rent for more than three months and had failed to pay the same to the respondent within one month of the service upon him of a notice of demand. The main defence to the suit was that the entire amount of rent due had been paid by depositing in Court.
4. The trial Court dismissed the suit, holding that the appellant had validly made the deposit under Section 7-C (2) of the Act and that, consequently, the provisions of Section 3 (1) (a) of the Act were not attracted. The lower appellate Court took the view that the respondent was entitled to a decree for ejectment as the deposit was not in accordance with the provisions of Section 7-C (2) of the Act. It held that, before making the deposit, the appellant had not offered to pay the arrears of rent to the respondent which was a condition precedent to the applicability of the provisions of Section 7-C (2). This view of the lower appellate Court is based on the decision of a Division Bench of this Court in Ahmad Ali v. Mohamad Jamaluddin, 1963 All LJ 567 (AIR 1963 All 581). This case has been referred to this Full Bench by a Division Bench on the ground that Ahmad Ali's case requires reconsideration. No particular question of law was framed or preferred for the opinion of the Full Bench, so that the entire case is before us for consideration.
5. The first point urged before us by learned counsel for the respondent is that even if it was accepted that the deposit of rent by the appellant was validly made under Section 7-C (2) of the Act it could afford no protection to the appellant because the deposit was not made within 30 days of the notice given by the respondent to the appellant, demanding the payment of arrears of rent for more than three months. This submission was made on the basis that the first notice of demand was given by the respondent on September 26, 1961, while the actual deposit was made by the appellant in the Court of the Munsif on December, 19, 1961 This contention has no force in the plaint, the respondent has not relied on the notice dated September 26, 1961, and has actually claimed arrears of rent upto December 28, 1961. The basis of the suit is therefore, the notice dated November 21, 1961 On the basis of the notice dated Nov. 21, 1961 and the deposit having been made on Dec. 19, 1961, it must be held that it was made within the period of 30 days laid down in Section 3 (1) (a) of the Act The serving of a second notice and claiming rent upto December 23, 1961, in the plaint clearly amounted to a waiver of the earlier notice dated September 26, 1961. Thisobjection raised by the respondent has no force.
6. The second point urged by learned counsel for the respondent is that the deposit by the appellant is not in accordance with the provisions of Section 7-C (2) of the Act as the appellant has failed to prove that there was any bona fide doubt or dispute as to the person who was entitled to receive the rent. This point seems to have been urged before the Division Bench also and is based upon a question of fact which, it seems, was never raised at an earlier stage. In the plaint, the respondent made no mention of this deposit at all though it had been made almost two months before the suit was filed. In the written statement, the appellant specifically took the plea that he had made a valid deposit under Section 7-C (2) the Act and claimed that he should be deemed to have paid the rent on the date of the de-posit.
After this written statement was filed, the respondent did not file any replication, challenging the validity of the deposit under Section 7-C (2). He did not specifically raise any question that there was no bona fide doubt or dispute about the right of the respondent to receive the rent. Since no such question was raised, no issue was framed by the trial Court on the point and no clear finding was recorded by it. The first appellate Court also did not record any finding on this question At this laic stage of second appeal such a question, which involves a question of fact also, cannot be allowed to be raised by the respondent. In any case, on the material on the record, there could be no other finding except that there was a bona fide doubt about the right of the respondent to receive the rent at the time when the deposit was made by the appellant. The appellant had made an application to the munsif, offering to deposit the rent under Section 7-C (2) on the ground that he had been informed by Hafiqul Qadar the brother of the respondent, that he was claiming the right to receive the rent and had filed an appeal in the High Court to establish his claim.
It was on the basis of this application that the Munsif permitted the deposit to be made and there is nothing on the record to show that, at any stage, this assertion was specifically contested In the written-statement of the present suit also, a similar plea was taken by the appellant and he also gave evidence to the same effect. On the other side, there is no evidence at all given by the respondent to show that no dispute between him and his brother existed about the right to receive the rent. In these circumstances we are of the view that the appellant had reasons to have bona fide doubt about the right of the respondent to receive the rent and it was for this reason that he took steps for depositing the rent before the Munsif under Section 7-C (2) of the Act. Consequently this point must also be rejected.
7. We now come to the main point which has been the cause of this reference to this Full Bench, viz., whether it was necessary for the appellant to have offered to pay the arrearsof rent to the respondent before he could validly make a deposit under Section 7-C (2) of the Act. The language of Section 7-C is unfortunate and even the Division Bench, whose interpretation is relied upon by the respondent, had to comment that the language used was odd. Sub-sections (1) and (2) of Section 7-C stand thus :--
' 7-C. Payment by Deposit of Rent :
(1) 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 the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept.
(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in Sub-section (1) in respect of any accommodation, the tenant may similarly deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent Court, or by settlement between the parties, continue to deposit, in like manner, the rent that may subsequently become due in respect of such building'.
In Sub-clause (i), the words laying down the condition precedent for the applicability of that sub-section are self-contradictory. There could be no refusal to accept the rent which had been paid lawfully. If the rent has already been paid, it cannot have been refused and, if it has been refused, it could not have been paid. This contradiction in this clause can properly be removed if we hold that the word 'paid' has mistakenly been used. It seems to us that the legislature really intended to use the word 'payable' and not the word 'paid'. The situation, with which the legislature was dealing, was the refusal of the landlord to accept the rent which was lawfully payable to him. We do not (sic) think that the word 'paid' should be treated as equivalent to 'offered' or 'tendered', the purpose of Section 7-C (2) would be clear and would be fulfilled.
8. Sub Section (2) also contains a condition precedent to the applicability of that sub-section. The difficulty has arisen because, in Sub-section (2), the word ' rent' has been qualified by the expression ' referred to in Sub-section (1)'. It was contended before us by learned counsel for the respondent that the effect of this qualifying expression 'referred to in sub-section (1)' is that the rent contemplated in Sub-section (2) is also the rent which the tenant offered to pay to the landlord and which the landlord has refused to accept This is the view that was taken by the Division Bench in Ahmad Ali's case 1963 All LJ 567 : (AIR 1963 All 581) With respect, we find ourselves in disagreement with this view. The expression 'rent referred to in Sub-section (1)' used in Sub-section (2) refers to the rent which is lawfully payable by a tenant and also includes the rentwhich subsequently falls due in respect of the same accommodation.
In fact, if the interpretation suggested by learned counsel for the respondent is accepted, the effect would be that Sub-section (2) would become meaningless and useless If there be a bona fide doubt as to the person who is en titled to receive the rent, it would be impossible for the tenant to decide as to whom to make the offer. Similarly, if there be a dispute between the persons claiming the right to receive the rent, the tenant would again be in difficulty as to the person to whom he should offer the rent. On the interpretation urged on be-half of the respondent the tenant could only avail of this provision if, in such a case, he makes offers to each one of the persons about whose right there was a doubt or between whom there was a dispute.
In fact, the purpose of Sub-section (2) is to afford protection to a tenant who desires to make the payment of rent due from him but is in difficulty because the proper person, who is entitled to receive the rent, is not known to him. He has been granted full protection against all rightful claimants if he makes deposit in Court instead of paying the rent to a person whose title is in doubt or dispute. The provisions of Sub-sections (1) and (2) are intended to deal with two different situations. Sub-section (1) deals with the situation where the landlord refuses to accept the rent lawfully payable to him: while Sub-section (2) deals with a case where a tenant has a bona fide doubt about the title of the person claiming the rent or has come to know about a dispute in regard to his title to receive the rent In either case, the tenant is allowed to deposit the rent in Court and thereafter it is left to the Court to make the payment to the person who is entitled to receive the rent. Consequently, we are unable to accept the view expressed by the Division Bench in the case of 1963 All LJ 567 : (AIR 1963 All 581). (supra) and hold that, in this case, it was not necessary for the appellant to have offered to pay the arrears of rent to the respondent before making the deposit under Section 7-C (2) of the Act.
9. The last point, which was raised before us lay learned counsel for the respondent, is that, in any case, even if the rent was deposited by the appellant on December 19, 1961, it should be deemed, under Sub-section (6) of Section 7-C of the Act to have been paid to the respondent only when the Court made an order under Sub-section (4) allowing the respondent to withdraw the rent deposited This submission is also based on the view expressed by Division Bench in Ahmad Ali's case 1963 All LJ 567 (AIR 1963 All 581) We are unable to accept this submission either Sub-section (6) of Section 7-C lays down that where a deposit has been made, it shall be deemed that the rent has been duly paid by the tenant to the landlord This sub-section of course, does not mention the date on which the payment shall be deemed to have been made.
In the present case, the deposit was made in accordance with the provisions of Sub-sections (2) and (3) of Section 7-C by the appellant on December 19, 1961. Thereafter the appellant could very well claim that the rent had been duly paid by him to the respondent. The legal fiction in Sub-section (6) comes into play immediately after the deposit has been made Since, in the present case, the deposit was made on December 19, 1961, by fiction of law it must be deemed that the rent was duly paid by the appellant to the respondent. There can be no reason for holding that the rent should be deemed to be paid only when the Court made an order allowing the respondent to withdraw the money If the interpretation suggested by the respondent were accepted, then, in most of the cases where rent has been deposited under Section 7-C after receipt of a notice under Section 3 (1) (a) demanding the rent, the payment would not be made within 30 days of the notice
From the procedure prescribed by Section 7-C and Rule 9 for the deposit of rent by a tenant and for its withdrawal by the landlord it appears that the order for payment to the landlord can rarely be made within 30 days. In any case, since such an order can only be made upon an application moved by the landlord, the landlord, by delaying the making of the application, can always ensure that the order is not passed within 30 days and thus frustrate the very object of the deposit. Further, the whole object of creating the legal fiction would be defeated if this interpretation is accepted because, once the payment is ordered to be made to the landlord, no legal fiction would be required to call it payment to the landlord We are accordingly of the view that the tenant should be deemed to have made the payment to the landlord on the date on which he makes a valid deposit in accordance with the provisions of Section 7-C of the Act.
10. The result is that the appeal is allowed, the decree passed by the lower appellate Court is set aside and the suit of the respondent against the appellant is dismissed with costs in all the Courts.
11. The decree passed by the lower appellate Court included a direction allowing the plaintiff-respondent to withdraw the amount which had been deposited by the defendant-appellant in the Court of the Munsif under Section 7-C (2) of the Act The question of withdrawal of that amount cannot form part of the decision in the present case, because with drawal of that amount will have to be made by the person entitled to receive the rent by making a proper application under Sub-section (4) of Section 7-C of the Act In this suit, the right of the person, if any claiming the amount cannot be adjudicated upon.