Skip to content


Ashraf Ali Khan Vs. the Munsif, West Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 614 of 1966
Judge
Reported inAIR1971All440
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7B(3) and 7B(7)
AppellantAshraf Ali Khan
RespondentThe Munsif, West Allahabad and ors.
Appellant AdvocateS.N. Kacker and ;Dhar, Advs.
Respondent AdvocateBashir Ahmad, Adv. and ;Standing Counsel
DispositionAppeal allowed
Excerpt:
tenancy - security - proviso to sub-section (3) & (7) of section 7-b of u.p. (temporary) control of rent and eviction act, 1947 - draft is not same thing as furnishing security - tenant furnishes formal security bond on the same day - court accepts draft of the bond submitted earlier for approval - such furnishing of the bond constitutes sufficient security. - - there is no provision in the act or in the rules making the court an adviser of a party so that the court should be asked to tell him whether the security bond is a good one or a defective one......(7) of section 7-b.9. mr. s.n. kacker appearing for the appellant contended that, in view of the draft filed by the tenant on 5-7-1961, there was sufficient compliance with the proviso to sub-section (7). on the other hand, mr. bashir ahmad appearing for he landlords urged that filing of a draft cannot take the place of furnishing security.10. in ram lal v. hindusthan commercial bank ltd., lucknow, air 1952 all 498 it was held that consideration of hardship cannot induce the court to depart from the meaning which isclear and apparent on the face of the section itself.11. in jagannath prasad v. city munsif, varanasi, 1959 all lj summary of cases p. 53 it was held by dhavan, j. that where the security bond is filed in court beyond 15 days of the receipt of the notice, there is no.....
Judgment:

Oak, C.J.

1. This special appeal arises out of proceedings for ejectment under Section 7-B of the U. P. (Temporary) Control of Rent and Eviction Act (hereafter referred to as the Act). Qamar Ahmad Khan and two others are the owners of a certain house in the city of Allahabad. Ashraf Ali Khan has been occupying the house as their tenant. There has been litigation between the parties on the question of the amount of rent. The landlords have been pressing that the monthly rent is Rs. 35/- on the other hand, the tenant's case is that the monthly rent is Es. 10/- only.

2. The landlord got served on the tenant a notice claiming a sum of Rupees 560/- as arrears of rent for several months at the rate of Rupees 35/- P. m. The notice was served upon the tenant on 31-5-1961. On 1-6-1961 Ashraf Ali Khan tenant filed an application in the Court of the Munsif, West Allahabad for permission to furnish security for the sum demanded by the landlords. On 5-7-1961 Ashraf Ali Khan submitted a draft of a security bond, Chhedi Lal being the surety. The court fixed 15-7-1961 for orders. On 15-7-1961 the learned Munsif accepted the draft. The tenant accordingly furnished the surety bond executed by Chhedi Lal. Subsequently, the landlords filed an objection to the effect that the security bond had not been furnished within time. The matter was considered by the learned Munsif on 28-10-1961. He upheld the objection raised by the landlords, and decided that the security bond had not been furnished within the time allowed by law. It was, therefore, held that the tenant was liable to be evicted from the premises in dispute.

3. This order of the learned Munsif. West Allahabad dated 28-10-1961 was challenged by Ashraf AH Khan by filing a writ petition. The writ petition has been dismissed by a single Judge of this Court. Ashraf Ali Khan has, therefore,, filed the present special appeal.

4. The question for consideration is whether Ashraf Ali Khan tenant furnished a security bond within the time allowed by Section 7-B (which?) providesfor service of notice on the tenant. The tenant has to show cause within 15 days of the service of the notice. Sub-section (7) of Section 7-B states:--

'If the tenant appears in reply to the notice under Sub-section (3) and files' an objection ...... the Munsif shall informthe applicant that he may, subject to payment of the court-fee within such time, as may be specified, have the application treated as a plaint in a suit for recovery of rent alone: Provided that the tenant shall not be permitted to file any objection, unless he has deposited in Court the amount mentioned in the notice or furnishes security to the satisfaction of the Court.'

5. The question for consideration is whether the appellant furnished security as required by the proviso to subsection (7). Sub-section (7) has to be read with Sub-section (3) of Section 7-B. When the two Sub-sections are read together, it appears that the objection has to be filed and the security has to be furnished within 15 days of the service of the notice.

6. In the present case notice was served on the tenant on 31-5-1961. The objection and the security had to be filed in the ordinary course by 15-6-1961. But that day happened to be during the summer vacation, when the civil Courts were closed. So, it was open to the tenant to file an objection and furnish security by 5-7-1961 when the Civil Courts opened after the summer vacation.

7. Before the summer vacation the tenant filed an application and an affidavit for furnishing security. In paragraph 4 of the affidavit (Annexure G) it was stated that the amount of Rs. 560/- claimed by the landlords was not at all payable. The affidavit may, therefore, be treated as an objection for purposes of Sec. 7-B of the Act. The point remains whether security was furnished within time.

8. The draft of the security bond was presented to the Court on 5-7-1961, The draft was approved on 15-7-1961. The same day the formal security bond was furnished by the tenant. The question arises whether these facts make out the tenant's case for compliance with the proviso to Sub-section (7) of Section 7-B.

9. Mr. S.N. Kacker appearing for the appellant contended that, in view of the draft filed by the tenant on 5-7-1961, there was sufficient compliance with the proviso to Sub-section (7). On the other hand, Mr. Bashir Ahmad appearing for he landlords urged that filing of a draft cannot take the place of furnishing security.

10. In Ram Lal v. Hindusthan Commercial Bank Ltd., Lucknow, AIR 1952 All 498 it was held that consideration of hardship cannot induce the Court to depart from the meaning which isclear and apparent on the face of the section itself.

11. In Jagannath Prasad v. City Munsif, Varanasi, 1959 All LJ Summary of Cases p. 53 it was held by Dhavan, J. that where the security bond is filed in Court beyond 15 days of the receipt of the notice, there is no compliance of Sub-section (7) of Section 7-B. Execution and presentation of the bond for registration within 15 days of the notice is not sufficient compliance with the requirements of Section 7-B.

12. In Haradwar Singh v. S.K. Gupta, 1957 All LJ 196 = (AIR 1957 All 305) the facts were these. The time for filing objections was to expire on 1-10-1955. The tenants filed objections on 1-10-1955. On 30-9-1955 they made an application with a draft of a security bond asking the Court's permission to file the bond in terms of the draft. The Court fixed December for orders. The matter came up for hearing on 13-4-1956, The Court decided that it would not permit the tenants to furnish security for the payment of the amount. A writ petition filed by the tenants was dismissed by M.L. Chaturvedi, J. He held that the duty has been cast upon the tenant either to deposit the amount or furnish security within time. There is no provision in the Act or in the rules making the Court an adviser of a party so that the Court should be asked to tell him whether the security bond is a good one or a defective one. The responsibility is of the tenant, and he must file a proper security bond.

13. In Haradwar Singh's case the Court declined to permit the petitioner to furnish security for the amount in dispute. In the present case the learned Munsif accepted on 15-7-1961 the draft submitted by the tenant. Circumstances of the present case are somewhat different from those in Haradwar Singh's case.

14. We agree with Mr. Bashir Ahmad that submitting a draft is not the same thing as furnishing a security bond. But the expression 'furnishes security to the satisfaction of the Court' appearing in the proviso to Sub-section (7) of Section 7-B must be construed in a reasonable manner. Not only has the tenant to furnish security, but he has also to satisfy the Court that the security is adequate. When the appellant offered on 5-7-1961 to furnish the security of Chhedi Lal, the appellant could not be sure whether the proposed bond would be acceptable to the Court or not. The appellant had to ascertain the court's view in the matter. That is why a draft was submitted on 5-7-1961. Although that was the last day for furnishing security, the Court did not pass any definite order on 5-7-1961 whether the surety would be acceptableto the Court or not. The Court fixed 15-7-1961 for orders. The draft was approved that day. The same day the security bond was filed by the tenant. Considering that the bond was furnished as soon as the Court approved the draft, we may safely assume that the tenant was always willing to furnish surety bond. The draft was filed on 5-7-1961; and Chhedi Lal surety was present in person before the Court. Under the circumstances, it should be held that there was] sufficient compliance on the part of the tenant with the requirement of the proviso to Sub-section (7) of Section 7-B of the Act. The learned Munsif was wrong in holding that the surety bond was not furnished within time. The case has now to proceed on the footing that surety bond was furnished by the tenant as required by law.

15. The special appeal and the writ petition are allowed. We quash the learned Munsifs order dated 28-10-1961, and direct him to deal with the case under Section 7-B of the Act in accordance with law. Parties shall bear their own costs before the learned single Judge and in special appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //