R.B. Misra, J.
1. On a difference of opinion between R. L. Gulati and H. N. Seth, JJ., the following question has been referred to me for opinion by the Acting Chief Justice:--
'Whether on the facts and in the circumstances of the case the defendant-respondent could be said to have committed a default in payment of arrears of the decretal amount amounting to Rs. 89.75 for purposes of Section 3 of the Bent Control and Eviction Act?'
2. The material facts to bring about the question referred to me are as follows:
3. Munna Lal, defendant-respondent, was a tenant of a portion of premises No. 105/336, Chamanganl, Kanpur, at a monthly rent of Rs. 5/-. This house is owned by Bhikha Lal and others, plaintiff-appellants. It appears that the tenant fell in arrears. The landlords, therefore, filed a suit, which was, later on, numbered as Suit No. 570 of 1961, for ejectment and for recovery of the arrears of rent and damages for use and occupation, amounting to Rs. 89.75 P. The suit was decreed by the Munsif. The tenant went UP in appeal before the District Judge. He also applied for the stay of the execution of the decree pending the disposal of the appeal. The District Judge granted an interim order staying the delivery of possession provided the tenant deposited in the trial Court the entire decretal amount with costs and pendente lite and mesne profits at the rate of Rs. 5/- per mensem from 9th March, 1971, within a specified period and continued to deposit the same at the rate of Rs. 5/- every month. In case of default, the stay order was to stand vacated. Pursuant to the interim order, the tenant deposited a sum of Rs. 240/-; not in the trial Court, but in the appellate Court. At long last the appeal was partly allowed and the decree for ejectment was set aside. The suit for recovery of arrears of rent amounting to Rs. 89.75 P., however, stood decreed.
4. It appears that the tenant again fell in arrears. The landlords, therefore, sent a fresh notice dated 17th July, 1963. through a Vakil demanding the past arrears of Rs. 89.75 (representing the decretal amount) and subsequent arrears for seven months from 25th November, 1962. to June, 1963. to the tune of Rs. 35/- (total arrears of rent amounting to Rs. 124.75 P.). The notice was duly served on the tenant. The tenant sent a reply dated 6th August, 1963. through a Vakil, informing the landlords that the amount of Rs. 80.75 P. had already been deposited towards the decretal amount in Court and he had sent the other amount of Rs. 35/- by Money Order. It was definitely stated in the reply that if there was any difficulty in getting the amount from the Court, he was prepared to give his consent for withdrawal. The landlords did not respond to this letter and filed a suit for the eviction of the tenant treating him to be a defaulter within the meaning of Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act). The suit was contested by the tenant on the ground, inter alia, that he had already deposited the sum of Rupees 89.75 P. and sent the other amount of Rs. 35/- by Money Order well within thirty days of the receipt of the notice, but the landlords refused to accept the same and, therefore, he was not a defaulter within the meaning of Section 3 (1) (a) of the Act.
5. The 4th Additional Munsif who tried the suit, decreed the same holding the tenant to be a defaulter within the meaning of Section 3 (1) (a) of the Act. He, however, found him to be a defaulter in respect of the second item of Rs. 35/- and not in respect of the first item of Rs. 89.75 P. On appeal by the tenant, the 1st Additional Civil Judge modified the decree of the trial Court. He set aside the decree for ejectment holding that the tenant was not a defaulter in respect of any of the two items. The suit, however, stood decreed for arrears of rent. The landlords came up in Second Appeal to this Court against the judgment and decree of the 1st Additional Civil Judge.
6. The appeal came up for hearing before a learned Single Judge of this Court. The point raised on behalf of, the landlords was that the tenant failed to pay both the amounts of arrears of rent within one month of the receipt of the notice of demand and he was thus a defaulter within the meaning of Section 3 (1) (a) of the Act. The learned Single Judge was of the view that if the tenant sent the arrears of rent by Money Order well within time it cannot be said that he had failed to pay the said amount within the period prescribed, merely because the Money Order reached the addressee a bit late on account of the delay on the part of the postal department.
7. In Ratan Lal v. Jagannath Prasad. (1967 All LJ 1029) a Division Bench took the view that the Post Office is the agent of the remitter and thus if on account of the negligence of the agent of the tenant, the money could not reach the landlord within the time, he would be a defaulter within the meaning of Section 3 (1) (a) of the Act. The learned Single Judge doubted the correctness of that decision. He, therefore, framed certain questions and referred the same to a larger Bench. The case was laid before a Division Bench. There was, however, a difference of opinion between the two learned Judges on the first item of Rs. 89.75 P. I am, therefore, concerned only with the first item of Rs. 89.75 P. and not with the arrears of the other amount of Rs. 35/,
8. It will be convenient, at this stage, to read Section 3 of the Act. In so far as it is material for the purposes of this case, it reads:
'3 (1) (a), that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand;'
9. The amount of Rs. 89.75 P. representing the decretal amount in the earlier suit is arrears of rent within the meaning of Section 3 (1) (a) of the Act is now well settled by the authorities of this Court. A reference may be made, in this connection, to Behari Lal v. Babu Ram, (1964 All LJ 458) and Chhotey Lal v. L. Chhaki Lal. (1952 All LJ 701) = (AIR 1953 All 113).
10. Now, the next question is whether this amount had been paid within one month of the receipt of the notice of demand. As stated earlier, the tenant had deposited this amount pursuant to the interim order granted by the District Judge in appeal. This amount had, therefore, been already deposited much before the receipt of the notice of demand. The tenant informed the landlords well within thirty days that the said amount was lying in deposit and the same could be withdrawn by the landlords and in case of any difficulty he was prepared to give his consent. It is true that in the notice of demand sent by the landlords, it was stated that they tried to recover the amount, but it was not possible on account of the technical objections raised by the clerk concerned. But when the tenant showed his readiness to render all possible help to the landlords, for the withdrawal of the said amount by the landlords, the landlords did not respond to the reply and instead filed the suit.
11. If the deposit of this amount in Court would satisfy the requirements of Section 3 (1) (a) of the Act is the real question to be considered.
12. For the landlords, it has been contended that the deposit of the amount of Rs. 89-75 P. can be payment within the meaning of Section 3 (1) (a) of the Act only if it satisfies the conditions of Order 21. Rule 1. Civil P. C. Order 21, Rule 1. Civil P. C. provides:
'(1) All money payable under a decree shall be paid as follows, namely:
(a) into the Court whose duty it is to execute the decree; or
(b) out of Court to the decree-holder; or
(c) otherwise as the Court which made the decree directs.
(2) Where any payment is made under Clause (a) of Sub-rule (1); notice of such payment shall be given to the decree-holder',
13. The Allahabad High Court made the following amendment in Clause (b) of Order 21. Rule 1, Civil P. C. inasmuch as after the words 'decree-holder', the following was added:
'through a bank or by postal money order or evidenced by a document.' These are the three modes contemplated by Order 21, Rule 1, Civil P. C. for the payment of the decree. The deposit of the amount by way of security for the payment of the decretal amount would not be a payment within the meaning of Order 21, Rule 1. Civil P. C.
14. In support of his contention, reliance was placed on para 12 of the judgment of the Supreme Court in P. S. L. Ramanathan Chettiar v. Rama-nathan Chettiar. (AIR 1968 SC 1047). In that case, the Supreme Court observed:
'On principle, it appears to us that the fact of a judgment-debtor's depositing a sum in Court to purchase peace by way of stay of execution of the decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the decree-holder. He can if he likes take the money out in terms of the order; but so long as he does not do it, there is nothing to prevent the judgment-debtor from _ taking it out by furnishing other security say of immovable property, if the Court allows him to do so and on his losing the appeal putting the decretal amount in Court in terms of Order 21, Rule 1. Civil P. C. in satisfaction of the decree'.
15. Next reliance was placed on Tika Rajpal Singh v. Basdeo. (1968 All WR (HC) 635). In that case, the landlord had filed an earlier suit for recovery of damages against the tenant on the ground that the defendant had damaged the property and as the landlord refused to accept the rent, the defendant had been depositing the rent as and when it became due in the Court of Munsif under Section 7-C of the U. P. (Temporary) Control of Rent and Eviction Act and he had already deposited a sum of Rs. 257/14/- to the credit of the plaintiff. When the landlord filed a suit for the ejectment of the tenant on the ground that he had failed to pay the arrears of rent within one month of the service of the notice of demand upon him, the tenant replied that he was not in arrears as he had already deposited. In these circumstances, the learned Single Judge observed:
'The tenant is, therefore, under an obligation to pay the arrears of rent to the landlord within one month of the receipt of the notice. Generally, it is the debtor who seeks out the creditor to pay the debt. That principle has been recognised by Clause (a). Payment has to be made to the landlord. In the present case, the tenant did not make any payment to the landlord directly. He did not make any payment to the credit of the landlord under any directions of the landlord. The previous suit was for recovery of damages. It was not for ejectment or for recovery of rent of the premises in dispute. There was no claim by the plaintiff for any relief on the ground of non-payment of rent in satisfaction of which the tenant could legitimately make deposits of rent as and when it became due. The Court had passed no orders in the previous suit directing the tenant to deposit in Court the rent as and when it fell due. The tenant seems to have made the payment voluntarily without any affirmative indication from the landlord that he may satisfy the demand made by him by the notice, by depositing the money in Court in the previous suit. Simply because the plaintiff made no objection to the tenant's action of depositing some money in that suit or because the Court permitted the money to be deposited in Court to the credit of the plaintiff in that case, could not mean that the tenant had satisfied the demand under the notice dated 3-9-1956. The deposits made in the previous suit could, in the absence of any specific order, at the best, be treated as payments towards the discharge of any decree for damages that may be passed in that suit'.
16. The facts of that case are materially different from the facts of the present case. In the present case the landlord had filed the suit for the ejectment and for recovery and arrears of rent from the tenant and against the decree of the trial Court, when he filed an appeal, he applied for stay and in pursuance of the order of the Court, he deposited the said amount by way of security. Therefore, the deposit of the amount was, at any rate, a security for the payment of the arrears of rent due In that case. That case, therefore, is not of much help in the present case.
17. It is true that the furnishing of security for the decretal amount under Order 41. Rule 5 (2), Civil P. C. does not amount to payment into Court within the meaning of Order 21, Rule 1, Civil P. C. It could not be said that immediately the security was furnished, the decree was satisfied. The security serves only as an indemnity against nonpayment of the decretal amount. The decree-holder could not proceed against the security until the appeal was disposed of. This view is supported by Ram Rao v. Kundanmul. (AIR 1951 Hyd 95).
18. The legal position therefore is that the amount deposited as security under this Rule does not ipso facto, without an order of Court, becomes the property of the decree-holder. The decree-holder can withdraw the amount only by an application to the Court for executing his decree by payment out of the amount in deposit in Court as security. In the present case, I am not concerned whether the deposit of the amount was payment within the meaning of Order 21, Rule 1, Civil P. C. I am concerned with the question whether the deposit of the said amount in Court even by way of security amounts to payment of the said amount to the landlords within the meaning of Section 3 (1) (a) of the Act.
19. The condition for ejectment of a tenant within the meaning of Section 3 (1) (a) of the Act is that the tenant has failed to pay the arrears within one month of the receipt of notice. Can it be said that the tenant has failed to pay the arrears within the meaning of Section 3 (1) (a) of the Act? In Laxmi Narain v. Site Ram. (1966 All LJ 321), a learned Single Judge of this Court observed as follows:--
'After a decree for ejectment has been passed against him and he has appealed from it, a tenant is not entitled to tender any rent direct to the landlord who will refuse to treat him as a tenant in view of the decree; and he can pay rent only under the authority of the Court and the only way in which he can pay it is by depositing the amount each month in Court. If subsequently the tenant, on a demand of rent from the landlord points out that he has already deposited the rent in Court and offers his help in withdrawing it, but the landlord rejects this offer and files a suit for ejectment, the Court will not hold that the tenant failed to pay the arrears of rent in spite of a notice of demand'.
20. In Abdul Baqi v. Akhaq Ahmad, (1962 All LJ 1146), a Division Bench of this Court, while dealing with Section 3 (1) (a) of the Act, laid down the following principle:--
'In a case where a person is required to make a payment to another the duty of the former is to go to the house of the latter and tender payment, and if there be clear evidence that he did so it must be held that there was full compliance with the requirement of making the payment provided this was done within the time prescribed.
When the law contemplates payment within the time laid down in the notice it must be held that tendering of full payment within that time is complete compliance with the requirements of the notice'.
21. In Balwant Rai v. Union of India. (AIR 1968 All 14), the expression 'fails to resume duty' within the meaning of Rule 731 (1). Note 3 of the Railway Establishment Code came up for consideration by this Court and a learned Single Judge of this Court interpreted the expression as follows:--
'The words 'fails to resume duty' apply only to a railway servant who by a voluntary and deliberate act or omission stays away from duty and fails to report and not to one who was prevented by a cause beyond his control to resume duty. It cannot apply to a servant who fell ill and was treated by the Railway in its own hospital under its own supervision and was discharged as fit for duty by its own officers after the expiry of the maximum period of leave due to him.
'The words 'fails to resume duty' cannot be given their literal meaning which will include failure for any cause whatsoever irrespective of whether the servant was to blame or not for several reasons. First, where two interpretations of a rule are possible the Court should accept the one which is consistent with equity, justice and good conscience and reject the one which will make rule oppressive. Secondly, as the enforcement of this rule may deprive a railway employee of his means of livelihood by the automatic termination of his services under certain circumstances, the words 'fails to resume duty' should be strictly interpreted and limited to a voluntary and deliberate act or omission resulting in failure to resume duty. Thirdly, and this is the most important reason of all the rule must be interpreted in accordance with letter and spirit of the Directive Principles of State Policy proclaimed by the Constitution.'
22. In the instant case, the tenant had deposited a sum of Rs. 240/-. Later on, he withdrew a part of the amount so deposited and left money sufficient to cover the decretal amount. That money was never withdrawn by the tenant and in reply to the notice, as stated earlier, he definitely said that if there was any difficulty in realising the amount, he was prepared to give his consent. No technical objection could have stood in the way if the landlords had asked the tenant to give his consent, but the landlords did not choose that end instead filed the suit for his ejectment straightway. Section 3 (1) (a) of the Act was made to give relief to the tenant. Even if he had fallen in arrears for more than three months, he could save his tenancy by paying the amount within one month of the receipt of the notice of demand. This section should, therefore, in my opinion, be construed in a manner to advance the intention of the Legislature and should not be used to penalise him. If the landlords had responded to the reply of the tenant and insisted on payment just possibly the tenant would have paid the amount despite the fact that he had already deposited the amount by way of security. The landlords cannot take advantage of their own conduct and brand the tenant ,as a defaulter.
23. For the foregoing discussion, the answer to the question referred is as follows:--
24. On the facts and in the circumstances of the case the defendant-respondent could not be said to have committed a default in payment of arrears of the decretal amount amounting to Rs. 89.75 P, for purposes of Section 3, of the Act.