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Mani Kant Tiwari Vs. Babu Ram Dixit - Court Judgment

LegalCrystal Citation
SubjectTenancy;Contract
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2028 of 1964
Judge
Reported inAIR1978All144
ActsContract Act, 1872 - Sections 23; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1) and 7D; Evidence Act, 1872 - Sections 58 and 100 to 101; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 2; Transfer of Property Act, 1882 - Sections 108
AppellantMani Kant Tiwari
RespondentBabu Ram Dixit
Appellant AdvocateJ.N. Agrawal, ;M.K. Tewari and ;Raisom Narain Sinha, Advs.
Respondent AdvocateK.L. Grover, Adv.
DispositionAppeal dismissed
Excerpt:
tenancy - eviction - section 23 of indian contract act, 1872, sections 58, 100 and 101 of indian evidence act, 1872, order 6 rule 2 of code of civil procedure, 1908, sections 3 (1) (a) and 7d of u.p. (temporary) control of rent and eviction act, 1947 and section 108 (c) of transfer of property act, 1882 - suit for eviction by landlord - legality of contract of tenancy not to be questioned by tenant on ground of absence of allotment order - burden or proving invalidity of notice of termination lay on tenant - integral portions of accommodation do not need specific mention in suit due to their nature ( tenant cannot be said to have misled to believe that eviction is sought for only a part of accommodation - rent can be validly rendered through cheque only when there is agreement between.....m.p. mehrotra, j.1. this second appeal arises out of a suit which the plaintiff filed claiming to be the landlord of the suit accommodation and the defendant's eviction was claimed from the said accommodation on the ground that the latter's tenancy in the same had been determined by a notice under section 106 of the transfer of property act. the plaintiff alleged that the defendant tenant failed to pay the arrears of rent due from him for the period from 1st july, 1958 to december, 1958, within a month of the notice of demand which was served on him on 21st january, 1959 and, therefore, he became a defaulter and the suit for eviction was, therefore, maintainable without the permission of the district magistrate under section 3 of the repealed u. p. act iii of 1947. the above mentioned.....
Judgment:

M.P. Mehrotra, J.

1. This second appeal arises out of a suit which the plaintiff filed claiming to be the landlord of the suit accommodation and the defendant's eviction was claimed from the said accommodation on the ground that the latter's tenancy in the same had been determined by a notice under Section 106 of the Transfer of Property Act. The plaintiff alleged that the defendant tenant failed to pay the arrears of rent due from him for the period from 1st July, 1958 to December, 1958, within a month of the notice of demand which was served on him on 21st January, 1959 and, therefore, he became a defaulter and the suit for eviction was, therefore, maintainable without the permission of the District Magistrate under Section 3 of the repealed U. P. Act III of 1947. The above mentioned notice was a composite notice which combined demand with the determination of the defendant's tenancy. The tenancy stood determined with effect from 28th February, 1959. Therefore, with effect from March 1, 1959, the defendant became liable to pay damages for his illegal use and occupation which were claimed at the rate of Rs. 45/- per month which was also the contractual rate of rent. Thus, the plaintiff claimed decree for eviction, for arrears of rent from 1-7-1958 upto 28th Feb.. 1959 and for damages for illegal use and occupation for the period commencing from 1st March. 1959 onwards. Certain amount was claimed for electric current supplied by the plaintiff to the defendant.

2. The defendant raised various pleas in defence. Inter alia, it was contended that the notice in question was bad in law; the suit for eviction was not maintainable as a part of the tenanted accommodation had not been included in the suit; the plaintiff exercised undue influence and pressure on the defendant in compelling the latter to agree to pay the rent at the exorbitant rate of Rs. 45/- taking advantage of the difficult situation in which the tenant was placed the plaintiff discontinued supplying electric current to the defendant's portion and thereby deprived the tenant of an amenity to which the latter was entitled: the defendant was deprived of the quiet enjoyment of the tenanted accommodation and the necessary repairs were not effected to the said accommodation. The contract of tenancy was alleged to be void and illegal as it was not brought about by an allotment order of the District Magistrate. The defendant lastly alleged that he was not a defaulter as a cheque for the arrears of rent was tendered to the plaintiff's counsel but the latter refused to accept the same and, therefore, it was sent by post within a period of one month However, the postal envelope could not be tendered to the plaintiff due to the latter's tactics and in such a situation, the defendant was not a defaulter and the plaintiff's suit for eviction was liable to be dismissed.

3. The trial court framed the necessary issues and tried the suit. It may be stated that during the pendency of the suit, the defendant vacated the accommodation in question. In the trial court, there was some dispute between the parties as to the real date of such vacation. The defendant alleged that he had vacated the accommodation on 31-3-1961 whereas the plaintiff alleged that the same was vacated on 20-4-1961. The trial court believed the plaintiff's version and held that the suit accommodation was vacated on 20-4-1961. In view of the said finding, the trial court observed that it was not necessary to pass any decree for ejectment. A decree for rent amounting to Rs. 360/- was passed for the period from 1st July, 1958 to 28th February, 1959. A decree for damages for illegal use and occupation was also passed for the period from 1st March 1959 upto 20th April, 1961 at the rate of Rs. 45/- per month amounting to Rs. 1155/-. A decree for Rs. 43/2/6 was passed in respect of the electricity charges due from the defendant to the plaintiff. The plaintiff was also held entitled to full costs of the suit. The defendant filed an appeal in the lower appellate court but the same was dismissed with costs. The said court, however, directed certain sentences to be deleted from the judgment of the trial court. The deleted sentences were critical of the conduct of the defendant

4. The defendant has now come up in the instant second appeal and he argued the case in person before me. He made the following points: --

(1) The contract of tenancy between the parties was void and illegal under Section 23 of the Indian Contract Act As such, it was not enforceable by a court of law.

(2) The notice under Section 106 of the Transfer of Property Act wss not proved by the plaintiff in the instant case and, therefore, the suit for eviction was not maintainable.

(3) The suit was not maintainable for a part of the tenanted accommodation.

(4) The defendant was not a defaulter under Section 3 (1) (a) of the repealed U. P. Act III of 1947.

(5) The defendant was entitled to an abatement of rent on account of deprivation of amenities and denial of quiet enjoyment.

(6) Damages were wrongly awarded at the same rate as rent even though the defendant was not enjoying the amenity of electric connection to which he was entitled as a tenant.

(7) Certain remaining observations against the defendant in the trial court's judgment needed to be expunged along with certain other observations which were earlier directed to be deleted by the lower appellate court.

5. Sri K. L. Grover, learned counsel for the plaintiff-respondent, contested the aforesaid submissions made by the defendant appellant. However, it may be stated that Sri Grover did not object to certain adverse observations made in the trial court's judgment against the defendant being deleted.

6. Before considering the aforesaid contentions made on behalf of the rival parties, it may be stated that at an earlier stage, this court framed and remitted the following three issues to the lower appellate court for the latter's finding--

'1. What is the normal time taken for the service of registered local letters in Kanpur?

2. What is the date on which 73-Ka. 1 was taken bv tbe postman to the plaintiff for delivery?

3. Whether the defendant had sufficient funds on tbe 19th February, 1959 so that the cheque issued by him in favour of the plaintiff could be honoured?

7. The lower appellate court submitted its findings and none of the parties in this court filed any objections to the findings recorded by the lower appellate court.

8. So far as the first contention of the appellant is concerned, it may be stated that the defendant realised that in view of thp Supreme Court pronouncement in Murli Dhar Agrawal v. State of U. P. : [1975]1SCR575 approving the Full Bench decision of this court reported in Udhoo Dass v. Prem Prakash : AIR1964All1 , it was not open to him to contend that the contract of tenancy between the parties was void or illegal in the absence of any allotment order. The appellant, h-swever, reserved his right to raise the said question in the future for it was possible, according to him, that the Supreme Court might change its view.

9. So far as the aforementioned points Nos. 2, 3 and 4 are concerned it will be seen that their real significance was lost in view of the fact that the defendant himself vacated the suit accommodation during the pendency of the trial and, therefore, no decree for ejectment was passed by the trial court. Any decision on the said contentions would be. therefore, only academic and would not serve any useful purpose except that the question of the costs was said to be dependant, on their decision. In other words in case the plaintiff's suit for eviction was not maintainable due to the aforesaid contentions, then he was not entitled to the costs for the relief of ejectment which was claimed in the suit. It was also contended that in case the suit for eviction was not maintainable, then no amount could be claimed as damages for illegal use and occupation and the suit could only be decreed for the rent which might be found due upto the date of the institution of the suit. It has seemed to me that this prolonged litigation was wholly uncalled for after the trial court's decree. The technicalities apart, it is obvious that the defendant was liable to pay for the use of the accommodation in his possession whether the payment be styled as rent or as damages. Even if all the contentions of the defendant were accepted, the result would have been onlv this that the plaintiff would have been compelled to file another suit for claiming arrears of rent which fell due after thp institution of the suit. This course would have further saddled the defendant with costs. In my opinion, the defendant would have been better advised not to have allowed his wisdom to have been affected by his feeling of anger.

10. However, since the questions have been raised, it is necessary that they should be dealt with. So far as the second contention is concerned, it will be seen that a notice was admittedly served on the defendant. However he challenged its validity. A copy of the said notice was filed by the plaintiff in the trial court but the same was held to be inadmissible by the courts below on the ground that the said copy of the notice was a copy made out from a copy and not from the original. Hence, it was not secondary evidence as the said term is denned in Section 63 of the Indian Evidence Act. However, the said courts held that as the defendant had admitted the receipt of the notice, it was for him to have filed the original notice which was claimed by him to be defective. The burden lay on the defendant to prove the invalidity of the notice once he admitted the receipt of the same. In my view, the courts below were right in laying down to the aforesaid effect. Under Section 58 of the Evidence Act, a fact which is admitted need not be proved. Here, the defendant had admitted the receipt of the notice but wanted to contend that the same was not valid in law. In such a situation, it was for him to have filed the original notice which he had received to substantiate his point that the notice was bad in law.

11. So far as the third contention is concerned, a point was made on behalf of the defendant-appellant that the Dochhati and a portion of the verandah etc. were not specifically mentioned in the plaint as included in the defendant's tenancy. Hence it was contended that the suit was only for a part of the tenanted accommodation and it was not maintainable in law. In my view this contention again is devoid of merit. The nature of the Dochhati and the inner verandah was such that it was not necessary that they should have been separately mentioned in the plaint. The boundaries of the disputed portion were given at the foot of the plaint and it has not been shown that there was any inaccuracy in the said boundaries. The tenant was certainly not misled by the description given in the plaint and he could have never thought that his ejectment was sought only from a part of the tenanted accommodation and not from the entire disputed accommodation. There could have been no justification for such a thinking and it has seemed to me that the argument suffers from artificiality and unreality. It lacks genuineness and reality. In this connection. I should like to refer to certain passages from my recent judgment in Second Appeal No. 191 of 1973 Jamuna Prasad v. Baboo Lal which I decided on D/- 6-12-1977 (All); sitting in the Lucknow Bench of this court I observed:

'It has seemed to me that the guideline which was laid down in Harihar Banerji v. Ramshashi Roy, (AIR 1918 PC 102) is such which should never be ignored in construing notices of this type. The head note of the said case is as follows:--

'The principles governing the construction of a notice to quit laid down by English cases are equally applicable to cases arising in India and they establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law: the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances: and further, they are to be construed not with a desire to find fault in them which would render them defective but to be construed up res magis valeat quam pereat.

But these principles are applicable to notices containing mistakes honestly but inadvertently made and not to inaccuracies deliberately inserted for fraudulent purposes.'

The Privy Council referred to various English decisions such as those reported in Doed Huntingtower v. Culliford (1824) 4 Dow. and Ry. (KB) 248, Doe d William v. Smith, (1836) 5 Ad & E 350, Write v. Dyer (1900) 1 QB 23. In all the said cases even though the notice given by the landlords had used phraseology which was sometimes ambiguous, sometimes even inconsistent, yet the courts construed the notices in such a manner as to uphold the validity of the said notices. The notice which came up for consideration before the Court in Doe D Williams v. Smith (supra) had used the expression 'present' and yet the said expression was held to be used for the half year with reference to 2nd February 1835 and not with reference to 2nd February 1834. Lord Denman, C. J. interpreted the notice in that manner expressly disregarding the expression 'present' in the notice. Littledale, J. concurring with Lord Denman, C. J. observed as follows:--

'This is certainly a lame and inaccurate notice, but such as it is, we must endeavour to give it a rational interpretation.' Petterson, J. said that:

'It is not required that a notice should be worded with accuracy of a plea. This is not drawn with strict precision, but I think it is sufficiently clear.'

In the notice in the Privy Council case the landlord had merely asked the tenant to vacate the land held on tenancy on or before the last day of the month of Chaitra of the current year 1317 B. S 1. It was further given out that in case the tenant failed to vacate the land by the due date, then a suit would be instituted in the proper court for the tenant's eviction. Then there was a schedule added to the notice in which the details of the land, its area and the boundaries were given. It was found that the area given was wrong and the tenancy land comprised much more land than was detailed in the schedule. The tenant's contention in the suit was that the notice was, therefore, bad as he was called on to vacate only a portion of that land which he held on tenancy. The Board made the following observations:

'The principal defendants knew perfectly well that a plot of 6 cottahs in extent is only a small fraction, one sixth or one seventh, of the lands in the entire iumma. They must presumably have known the law that a notice requiring a tenant to quit only a small portion of the holding of which he was tenant was bad and ineffective; but the presence of these words 6 cot-tahs in the schedule, it was, in effect, contended, reverses all the presumption such as would apply in English cases and necessitates that the landlord shall be presumed to have intended to serve a notice bad and ineffectual to his own knowledge rather than a valid and effectual one, and that the notice itself should be construed ut res magis pereat quam valeat instead of the contrary. No argument has been addressed to their Lordships and no authority produced to show that the principles of the above recited English cases are inapplicable to Indian cases. From the very nature of a notice to quit, which is merely the formal expression of the landlord's will that the tenancy of his tenant shall terminate, it would prima facie appear that they are applicable. .....

In their Lordship's view the erroneous statement of the contents of the jumma does not predominate over the description given of it in the earlier portion of the notice to quit. They have not the slightest doubt that the principal defendants were perfectly well aware that the notice required the defendants, as the plaintiffs desired and intended that it should to quit and deliver up possession of the entire iumma for which they for years paid the rent of Rs. 25 ..... Their Lordships are, therefore, clearly of opinion that the notice was a good notice to quit this last named iumma in its entirety, whatever its area may be.

12. It is true that the Privy Council laid down the law in reference to the construction of notice determining the tenancy. However, the same construction, to a large extent, will apply in construing the plaint allegations in the instant case. The Supreme Court in Mangilal v. Sugan Chand : [1964]5SCR239 approved of the law laid down in the said Privy Council case. Counsel placed reliance on the commentary of Mulla on Transfer of Property Act at page 672 (Sixth Edition 1973) where the following observations occur--

'The rule has been to make lame and inaccurate notices sensible where the recipient cannot have been misled as to the intention of the giver. A liberal construction is therefore put, upon a notice to quit in order that it should net be defeated by inaccuracies either in the description of the premises, or the name of the tenant or the name of the landlord, or the date of expiry of the notice. The Privy Council has said that these English authorities are applicable to cases arising in India and that

'they establish that notices to quit, though not strictly accurate or inconsistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat, quam pereat'.

13. Reliance was also placed on 33 Cal LJ 503 : (AIR 1921 Cal 269) and ILR 46 Cal 458 : (AIR 1918 PC 102). In my view, the aforesaid cases were decided on their own facts and the law as laid down by the Privy Council is more apposite to the facts of the instant case. The third contention of the appellant is accordingly rejected.

14. So far as the fourth contention is concerned, it seems that paper No. 73-Ka. 1 was the registered envelope which contained notice Ext. A-2. This was sent to the plaintiff-respondent against his Gene-ralganj, Kanpur address by the appellant Sri Mani Kant Tiwari. As already stated above, this court had remitted three issues to the lower appellate court for the letter's findings. On issue No. 2 'What is the date on which 73-Ka-1 was taken by the postman to the plaintiff for delivery' the lower appellate court returned the following findings:

'Taking into consideration all these facts and circumstances, I hold that this envelope 73-Ka-l was taken by the postman for delivery to the plaintiff for the first time on 20-2-1959 and subsequently on 21-2-1959, 23-2-1959, 25-2-1959, 27-2-1959 and on subsequent dates and it was finally sent back to the sender who received it back on 21-3-1959.'

15. The composite notice demanding the arrears of rent and determining the defendant's tenancy was admittedly served on the latter on 21st January, 1959. Hence on 20th February, 1959, when the defendant sent his reply Ext. A-2 along with the cheque of Rs. 270/-, the period of one month had not expired. The lower appellate court has also found that the said communication sent on 20th February, 1959 was taken to the plaintiff for delivery for the first time on the said date i.e. 20-2-1959. In view of the said finding of the lower appellate court whose correctness was not assailed in this court, it has to be held the defendant tendered a cheque for the arrears of rent demanded from him by the plaintiff by his earlier notice of demand and the said tender was made within a month of the receipt of the said notice of demand by the defendant. If the cheque in question was deemed to be good tender, then it will have to be held that the defendant was not a 'defaulter' within Section 3 (1) (a) of the repealed U. P. Act III of 1947. The appellant, in this connection, referred to some case law which is as follows;--

1. Harihar Banerji v. Ram Shashi Roy (AIR 1918 PC 102); 2. In the matter of Part Cargo ex Steamship 'Balgia' (AIR 1918 PC 338); 3 Dukhi Ram Barai v. B. N. W Rly. (AIR 1923 All 145); 4. Chaturbhui Ramlal v. Secy, of State for India : AIR1927All215 . Bachcha Lal v. Lachman : AIR1938All388 . Noor Mohd. v. Nanwa : AIR1973All31 . Abdul Baqi v Akhlriq Abmad (1962 All LJ 1146); 8. Bhagwan Devi Goel v. Sushila Rani (1961 All WR (HC) 274); 9. Khushro S. Gandhi v. Ferjunji J. Gandhi (1962 All WR (HC) 862); 10. Ratan Lal v. Jagannath Prasad (1967 All LJ 1029); 11. Dharmendra Nath v. Jagdish Prasad : AIR1976All107 . N. L. Mehtrotra v. Mrs. M. A. K. Finch (1955 All LJ 650); 13. Demadilal v. Parashram : AIR1976SC2229 ; 14. Commr. of Income Tax v. Ogale Glass Works Ltd. : [1954]25ITR259(SC) .

16. Many of the aforesaid cases, such as AIR 1918 PC 102 and AIR 1918 PC 338, AIR 1923 All 145, : AIR1927All215 and : AIR1938All388 , deal with the question about the presumption of service by post. It is not necessary to so into the said question as I have already stated that the lower appellate court has submitted a finding that Ext. A2 sent by the appellant was taken to the landlord on 20th February, 1959, which date fell within a month of the notice of demand. The correctness of the said finding was not disputed in this court.

17. In : AIR1973All31 (supra), a learned single Judge of this court laid down that tender of arrears of rent within time to the lawyer of the landlord Would be a valid tender and would amount to compliance of the lawyer's notice of demand of arrears of rent within the meaning of Section 3 (1) (a) of the U. P. Act III of 1947. This aspect of the matter loses its significance in view of the fact that tender of the cheque, which was alleged earlier to have been made to the lawyer of the landlord, has to be held to have been made to the landlord himself in view of the fact that along with the aforesaid Ext. A2, a cheque was also sent for the arrears of rent. In the same manner the ruling reported in 1967 All LJ 1029 (supra) is also not relevant. It was laid down in the said case that where the money order for the amount demanded was sent to the plaintiff well within the period of expiry of notice, then, even if the money order was tendered for payment to the plaintiff after the expiry of the period of notice, provisions of law would be complied with and the defendant would not be a defaulter.

18. In 1962 All LJ 1146 (supra), a Division Bench laid down as follows:--

'There is ample authority for the proposition that offer of payment at any reasonable hour at the normal place of residence of the person who is entitled to receive payment absolves the person bound to pay from any liability ensuing by reason of non-payment, irrespective of the question whether payment could not in fact be made because the payee refused to accept or was absent from his residence.'

19. In 1961 All WR (HC) 274 (supra), a learned single Judge laid down as follows:--

'Learned counsel argued that payment by cheque is no payment. I am not prepared to accept the argument in such broad terms. Whether payment by cheque is treated as cash payment or not depends upon the custom of the locality and the previous practice of the parties. If the tenant had been making payment by cheque and the landlord had been accepting it, the tenant is entitled to think that payment by cheque will be treated by landlord as cash payment. Learned counsel for the respondent informed me that there was no evidence on behalf of the plaintiff that he had refused payment by cheque on previous occasions. The tenant cannot be adjudged a defaulter merely because she made a payment by cheque which is the usual method of payment in these days among large sections of people. I, therefore, think that the finding of the appellate court absolving the tenant of any default in the payment of rent is quite correct.'

20. In 1962 All WR (HC) 862 (supra), a learned single Judge, in the facts of the said case, held that the tenant was justified in issuing cheques for the payment of rent to the landlord.

21. In : AIR1976All107 (supra) Gopi Nath, J. dealt exhaustively with the question of the payment of rent by the tenant by cheque and the effect of such payment in relation to the tenant's default under Section 3 (1) (a) of the repealed U P. Act III of 1947. The learned Judge formulated the question in these words:--

'The only question surviving for decision is whether the remittance of the rent by cheque with the covering letter dated January 29, 1966 could be a valid tender in the eye of law?

22. The facts of the case were discussed and it was summarised :--

''The defendant in this case sent the cheque for a sum of Rs. 1102.50 in full satisfaction of the demand under a bona fide belief that remittance by cheque being one of the accepted modes of payment, the same would be acceptable to the plaintiff; in discharge of the liability, particularly when the landlords were no other than the sons of Tri-loki Nath who had been accepting rent through cheques. The demand was made by a registered letter. The cheque consequently was also sent, by registered post.'

23. The learned Judge particularly emphasised that the payment by cheque should be bona fide i. e. tenant should have a bona fide belief that the landlord was prepared to accept such payment by cheque and that there was nothing to indicate that he was disinclined to accept such payment by cheque.

24. The case reported in 1955 All LJ 650 (supra) was decided in reference to Section 3 (1) (a) prior to its amendment in 1954. Hence it is not necessary to refer to the said case.

25. In : AIR1976SC2229 (supra), the said court approved the following observations extracted from the judgment of the Madhya Pradesh High Court.

'The question is as to whether instead of presenting the cash, of a cheque is sent to the landlord, that is sufficient tender of the arrears of rent or not..... In the highly developed society, payment by cheque has become more convenient mode of discharging one's obligation. If a cheque is an instrument which represents and produces cash and is treated as such by businessmen, there is no reason why the archaic principle of the common law should be followed in deciding the question as to whether the handing over of the cheque is not a sufficient tender of the arrears of rent if the cheque is drawn for that amount. It is no doubt true that the issuance of the cheque does not operate as a discharge of the obligation unless it is encashed, and it is treated as a conditional payment, yet, in my view this is a sufficient tender of the arrears if the cheque is not dishonoured. In the present day society, I am of the view, an implied agreement should be inferred that if the payment is made by a cheque, that mode of payment would be accepted.'

26. The Supreme Court, however, made it clear that the question had to be decided with reference to the facts and circumstances of a particular case. It was observed:--

'We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement. In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent.'

27. In : [1954]25ITR259(SC) (supra), it was laid down that a cheque, unless dishonoured, is payment. The payment takes effect from the delivery of the cheque. Shri Grover relied on : AIR1954All480 which is a Division Bench pronouncement of this court where the question of tenant's default was considered and it was laid down that the sending of a bank draft did not amount to payment or even a tender of the amount due and the defendant must be deemed to have been guilty of wilful default within the meaning of the then Section 3 (1) (a). It seems to me that in view of the law laid down by the Division Bench in 1962 All LJ 1146 (supra) and also in view of the Full Bench decision reported in : AIR1974All366 it will have to be held that the appellant was not a defaulter as he remitted the amount by cheque on 20th February, 1959, which date, as already stated above, fell within a month of the service of notice of demand. However, this conclusion can only be reached if it be held that the tenant was entitled to remit the amount by cheque. In view of the case law which has been discussed above, it seems to me that in the facts of the instant case, the issuance of the cheque cannot be held to be valid tender of rent. A payment by cheque is justified only when there is an agreement between the parties to the effect that a tenant can make such payment by cheque and a landlord is agreeable to accept such payment by cheque. Such agreement can be express or implied. In many of the reported cases, the agreement was inferred from the course of dealing between the parties. The Supreme Court has laid down that such an agreement can be held to be implied in the contemporary society 'unless the circumstances of a case indicate otherwise.'' It is, therefore, clear that if such an agreement, express or implied, be not in existence, then the tenant cannot compel a landlord to accept payment in cheque. Now, in the facts of the instant case, nothing has come in evidence to iustify the existence of such an agreement. It is not denied that there was no express agreement that the tenant would make payment of rent by cheque and that the landlord would accept the same. So far as an agreement by implication is concerned, as the facts stand, it seems that the payments of rent were always made in cash and never by cheque. The appellant as a tenant could not entertain a bona fide belief that the plaintiff landlord was agreeable to receive rent by cheque. On the other hand in view of the past background, it can reasonably be held that the landlord would not have prepared to accept the tenant's cheque. It has come in evidence that immediately before the suit in question, there had been an earlier suit between the parties being suit No. 1419 of 1958. A certified copy of the judgment of the said suit is Ext. 8 in the suit from which this appeal has arisen. The landlord filed the said earlier suit for the recovery of a total sum of Rs. 618.50 on account of arrears of rent for the period from 1-7-1957 to 30-6-1958 plus Electricity charges from 1-7-1957 to 30-6-1958 amounting to Rs. 78.50. The said suit was contested by the tenant but was substantially decreed with proportionate costs. The decree was passed on February 29, 1960. It will be seen that the landlord sent the notice of demand which was served on. 21st January, 1959 i.e. during the pendency of the first suit. It is obvious that the landlord would have never been willing to accept the cheque from the tenant when in the past rent had never been paid by cheque and when the relations of the parties had deteriorated to such an extent that bitter litigation was pending between them. Lastly, the fact has to be emphasised that when the cheque was issued by the appellant on 19th February, 1959; admittedly, he did not have necessary funds in his bank account. The appellant made the said admission in the lower appellate court and the said court held:--

'In view of this statement of the appellant it is obvious that the cheque issued by him in favour of the respondent dated 19-2-1959 for a sum of Rs. 270/- would not have been honoured by the bank as there was no sufficient fund standing to his credit on that date.'

28. The appellant contended before me that the said finding was not justified inasmuch as the relevant date is the date of the presentation of the cheque for encashment and not the date on which the cheque is issued. In my view, if the said contention were accepted in the broad manner in which it has been aruged before me, then it would mean that every payee is bound to accept a cheque even though he knows that on the date when the cheque is issued, the necessary funds are not there in the bank account. I do not think that the law has been laid down or understood in such broad manner. The injustice to the payee which such a statement of law would cause is manifest. In my opinion, the crux of the matter lies in the bona fide conduct of a tenant as was emphasised by my learned brother Gopi Nath, J. in his aforesaid pronouncement reported in : AIR1976All107 . The tenant should have a bona fide belief that there has been nothing in the past conduct or relationship of the parties which would by implication rule out an agreement between the parties that the payment of rent can be made by the tenant by cheque and that the landlord is agreeable to accept such payment by cheque. It seems to me that in the facts and circumstances of this case, it has to be held that there was an implied agreement between the parties on 19th Febrary, 1959 that the tenant would not pay the rent in cheque but would pay the same in cash. The appellant did not even indicate in his statement made in the lower appellate court that due to some accident or genuine difficulty, he was not in possession of funds in the bank on 19th February, 1959. He did not prove that even though on the said date, there were no funds, he deposited the necessary amount on some subsequent date to enable the cheque to be cashed. It is true that cheque was never presented by the landlord for encashment. However, paper No. 73-Ka. 1 whereby the said cheque was sent to the landlord by Post on 20th February, 1959 remained in possession of the post office for about a month and it was finally sent back to the appellant who received it on 21st March, 1959. To prove his bona fides, in such a situation, one would have expected that at least the appellant would have deposited the necessary funds immediately after 19th February 1959 when he draw the cheque. However, no evidence has been tendered on behalf of the appellant to prove that he made any such effort in that direction.

29. I accordingly hold that the issuance of cheque in the facts and circumstances of the instant case, was not justified and the appellant did not cease to be a defaulter under Section 3 (1) (a) of the repealed U. P. Act III of 1947.

30. I now come to the aforementioned fifth contention raised by the appellant. The abatement of rent is sought on the ground that the plaintiff discontinued supplying electric current to the appellant and due to this act of the plaintiff, there was disturbance in the quiet enjoyment of the accommodation to which the appellant as the tenant was entitled. Both the courts below have found that the plaintiff was justified in disconnecting the supply of electric current to the appellant as the latter was not regularly paying the dues for such electric current supplied to him. The said finding is a finding of fact and is binding on me in the second appeal. Reliance was placed by the appellant on a few cases which have examined the question of the applicability of the English doctrine of suspension of rent to India. In Nilakantha Pati v. Kshitish Chandra Satpati : AIR1951Cal338 , the head note is as follows (at p. 338 H. N. L. N.):

'Where the rent was a lump rent for the whole land leased and the landlord has dispossessed the tenant in a high handed manner from a portion of the land, the landlord is not entitled to claim any rent on the basis of the contract with the tenant, as the former has acted tortiously in not allowing the tenant to hold the land peacefully. The mere fact that the area dispossessed is a small one is not of an overriding importance so as to dissuade the court from applying the principles of justice, equity and good conscience if the court finds that the act of the landlord was definitely a tortious one. If and when the landlord chooses to put the tenant again in possession of the portion from which the latter had been dispossessed, he will be entitled to the rent and not till then.'

31. In B. Ahmed Maracair v. Muthuyalliappa Chettiar : AIR1961Mad28 , a reference was made to 23 Mad LJ 119 where it was laid down that a tenant may on partial eviction repudiate the whole lease; but if he does not and remains in possession of a portion, he is estopped from pleading non-liability for the rent of the portion in his occupation and he will be liable to pay rent but will be entitled to damages in respect of the eviction and he can set off the damages as against the rent in the landlord's action for rent.

32. In Jatindra Kumar Seal v. Rajmohan Rai (AIR 1961 Assam 52), the learned Chief Justice held that when there has been an actual physical expulsion with the intention of depriving the tenant of the enjoyment of the demised premises or from a part thereof, then the entire rent gets suspended. Reliance was placed on : AIR1951Cal338 (supra).

33. The Supreme Court dealt with this question in Surendra Nath v. Stephen Court Ltd. : [1966]3SCR458 . The head note is as follows (at p. 1361 Ft. (A) L. N.):--

'The doctrine of suspension of rent should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. The doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him without much inconvenience, he should not pay any compensation for the use of the property; in other words he should enjoy a windfall. On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. Where, therefore, the landlord has failed to give possession of one out of the three bed rooms of the demised premises, the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent.'

34. It seems to me that the appellant is not entitled to any abatement of rent on the ground of non-supply of electric current to him by the plaintiff. It is obvious that the rent of Rs. 45/- which was contracted to be paid by the tenant to the landlord in the instant case, did not include charges for electric current. Such current to be supplied by the landlord to the tenant had to be separately paid for by the tenant in accordance with the reading in the Sub-meter installed in the tenant's accommodation. It is obvious that if the tenant was not supplied electric current, then he had not to pay any charges for the same. However, so far as the liability to pay Rs. 45/- per month by way of rent was concerned, the same remained unaffected as the said amount had nothing to do with the supply of electric current by the landlord to the tenant. In the facts of the instant case, the courts below have found the appellant to have been in the wrong inasmuch as he did not regularly pay charges for electric current supplied to him. Therefore, it cannot be said that any tortious act was done by the plaintiff in the facts of the, instant case. I am also highly doubtful if the covenant about quiet enjoyment contained in Section 108(c) of the Transfer of Property Act will be applicable to a case where there is dispute between the landlord and the tenant about the supply of electric current. The said provision is as follows:

'The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption.

The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.'

35. The theory of suspension of rent or abatement of rent has been applied to a situation where the Lessee is denied the enjoyment of a part of the accommodation I apprehend that a dispute about repairs and amenities etc. stands on a different footing. Section 7-D of the repealed U. P. Act III of 1947 laid down as follows:--

'7-D (1) No landlord shall without just or sufficient cause cut off or withhold any of the amenities enjoyed by the tenant.

(2) The tenant in occupation nf an accommodation may, if the landlord has contravened the provisions of this section, make an application to the District Magistrate complaining of such contravention.

(3) If the District Magistrate on inquiry finds that the tenant has been in enjoyment of the amenities and that they were cut off or withheld by the landlord without iust or sufficient cause, he shall make an order asking the landlord to restore such amenities.

(4) If the landlord fails to restore the said amenities within the time fixed by the District Magistrate it shall be competent for the District Magistrate to direct that the tenant may have such amenities restored and the cost thereof may be deducted from the rent which is payable to the landlord.'

36. The corresponding provisions in the current U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act are Sections 26 and 27. A tenant who has a grievance on account of the denial of an amenity to which he claims to be entitled could or can seek recourse under the aforesaid provisions. When that is so, it seems to me that there can be no suspension or abatement of rent itself payable by the tenant to the landlord. In my view, the appellant is not entitled to any abatement of rent.

37. Coming to the aforesaid sixth contention raised by the appellant, I hold that in view of the reasons which I have stated above, the appellant is liable to pay damages at Rs. 45/- per month (which was the contractual rate of rent) and not at a lesser amount on account of the non-supply of electric current to him. The reason is the same as stated earlier, namely, because the rent for the accommodation did not include charges for electric supply which had to be paid for separately by the tenant to the landlord on the basis of the Sub-meter reading.

38. Lastly, coming to the question about expunging certain observations from the judgment of the trial court, as I have already stated above, Sri Grover stated that he did not object to the expunction of the observations which cast a stigma on the conduct of the appellant, I, therefore, direct that the following portion from the trial court's judgment shall be deleted:--

'He has also made certain allegations against the Judge Small Causes Court which are contemptuous and repelling and have been made without any reasonable ground. I deprecate this conduct of the defendant. To my mind such people can go to make any statement wrong or right, unmindful of their status in the society. I am really sorry to observe all these things.'

39. In the result, this appeal fails and is dismissed but in the circumstances of the case, no order shall be made as to costs.


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