S.K. Kapur, J.
(1) The house in question known as 'Vishnu Villa' situate in Sanjauli belonged to Shri D. D. Bharadwaj. It was let out to C. L. Jolly petitioner (hereafter referred to as the tenant) on a rent of Rs. 30.00 per month. Shri D. D. Bharadwaj died leaving behind several heirs. According to the petitioner, he left six legal heirs who became the owners of the property in dispute. Three of such heirs are Madan Lal respondent Sohan Lal and Krishan Kumar, son of the deceased. These brtohers also have a step-mtoher and it was admitted by Krishan Kumar (P.W.2) that their step-mtoher is a 'co-owner' of the property in dispute. There are two residential flats in the building. First floor had been let out to the petitioner while the second floor is in occupation of the landlord where according to the evidence Madan Lal's step-mtoher resides. After the death of Shri D. D. Bharadwaj, Madan Lal alone filed an application under section 13 of the East Punjab Urban Rent Restriction Act. 1949, for eviction of C.L. Jolly tenant on two grounds:-(1) non-payment of rent and (2) that he required the building for his own occupation. He did nto implead toher heirs of the deceased even as respondents.
(2) It is appropriate to point out that in September 1963 the property was attached and a ntoice issued by the Excise and Taxation Officer to the tenant directing him:
'NOW, thereforee, you the above named tenant of the said defaulter are hereby restrained and prohibited from making any payment to the owner of the said property or to any toher person who claims to be the owner and to pay the same to me by 26/9/1963.'
(3) The first date of hearing in the application for ejectment was admittedly 11/8/1964, and on that day even according to the tenant about Rs. 20.00 were due to the landlord as arrears of rent. In these circumstances the trial Court by judgment dated 30/8/1965, decided that though no tender of rent was made on the date of first hearing the tenant could nto have done so in view of the prohibitory order dated 17/9/1963, and thereforee the tenant was nto liable to ejectment on the ground of non-payment of rent. The trial Court also held that the evidence produced was insufficient to justify a finding that the landlord had a genuine desire to reside at Simla. On Issue No. 1, whether the petitioner alone has locus standi to make the application, the trial Court was of the opinion that one of the joint owners could do so. The trial Court consequently dismissed the application of the landlord who went up in appeal before the Appellate Authority. The Appellate Authority inter alias decided that even though the tenant was under a restraint order and could nto tender or deposit the rent on 11/8/1964, the first date of hearing, yet he could do so on 31/8/1964, when the attachment order had been withdrawn. The Appellate Authority further observed that the tenant could have deposited the rent in Court either under the provisions of the East Punjab Urban Rent Restriction Act or section 31 of the Punjab Relief of Indebtedness Act. The Appellate Authority, however, did nto touch on the question of the competence of Madan Lal alone one of the owners of the property to institute the present proceedings. He, however, held in favor of the landlord that the premises were bona fide required by -him for his own use and occupation. In the result the Appellate Authority ordered the eviction of tenant.
(4) So far as the question of deposit of rent goes, I am of the opined that the tenant had in the circumstances lost the benefit of the proviso to clause (i) of sub-section (2) of section 13 of the said Act. The proviso reads :
'PROVIDED that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of tent and interest at six per cent per annum on such arrears together with cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.'
(5) Payment to Excise and Taxation Officer in pursuance of his order dated 17/9/1963, would have been a payment to the landlord within the meaning of the said proviso. The proviso does nto require the payment or tender to the landlord personally and if payment to the Excise and Taxation Officer could provide him with a valid discharge, I see no reason why the tenant could nto comply with the proviso if he so desired.
(6) The learned counsel for the tenant argued that the said proviso contemplated payment only on the first date of hearing and it would have been difficult for the tenant to attend the Court and also make the payment on that day. This is like driving a horse to a gorge to be able to set up inability to travel. There appears no logic in this argument and I see no difficulty in the tenant being able to do buth on the date of the first hearing. In any case there were two toher courses open to the tenant. (1) He could have paid the money to the Excise and Taxation Officer before the date of first hearing and that would, in my opinion, have been sufficient compliance with the proviso and (2) he could have deposited the money on the date of the first hearing in Court to be paid to the Excise and Taxation Officer. That would also have amounted to payment to the landlord. It was then contended by the learned counsel for the tenant that the property had been attached by the Excise and Taxation Officer only for the recovery of Rs. 78.75 Paisa and the entire amount of arrears could nto have been paid to the said officer. That argument again is devoid of force. If the tenant was really eager to avail himself of the benefit of the proviso and if he had tendered the money to the Excise and Taxation Officer in accordance with the order dated 17/9/1963, the tenant would have gto a valid discharge for the entire amount if the same had been accepted. On the toher hand, if the Excise and Taxation Officer had accepted Rs. 78.75 Paisa only he would have withdrawn his order thus enabling the tenant to pay the balance to the landlord. A similar result could have been achieved by depositing the whole amount in Court to the credit of the Excise and Taxation Officer on account of the landlord. It must be remembered that under the said act a tenant becomes liable to eviction in case of his failure to pay or tender the rent due as provided in clause (i) of sub-section (2) of section 13. The proviso is only a benefit conferred on the tenant to avoid eviction for non-payment. Inability to comply with the proviso for reasons beyond the control of the tenant may nto save him from the adverse effect of clause (i). In any case here the tenant could have tendered and/or paid the money which he failed to do.
(7) That takes me to the question of competence of Madan Lal alone one of the owners to institute proceedings. The expression 'landlord' has been defined in clause (C) of section 2 as under :-
''LANDLORD' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any benefit of any person, or as a trustee, guardian, receiver, executor or administrator for any toher person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, and, every person from time to time deriving title under a landlord.'
(8) Before a person can fall within this definition, he must be 'entitled' to receive rent either on his own behalf or on behalf of or for the benefit of any toher person. The fact that one of the joint owner had been realizing the rent may be an indication to that end. It does nto, however, by itself conclusively established that he had been authorized by toher owners to realize rent. No doubt the act has given an extended definition to the word landlord' but still it is for the person instituting proceedings to show that he is 'entitled' to receive rent. The trial Court decided that:
'ONE co-owner can realize rent from a tenant and can give a valid discharge. It is different matter that he is accountable to toher co-owners but in that matter the tenant has no concern.'
(9) The facts of this case are slightly different. It was nto alleged by the applicant Madan Lal that the tenant had attorney to the hers of Shri D. D. Bharadwaj. A direct relationship of landlord and tenant between the heirs and the tenant was thereforee nto alleged. In that situation the position would be that the heirs of D. D. Bharadwaj would nto be joint promises but heirs of a single promiseand a release thereforee of the debt by one of the heirs of the deceased creditor may nto be a valid discharge to the debtor. In the application it has nto even been alleged that Madan Lal was entitled to receive rent. The foundation for his competence to initiate proceedings was nto, thereforee laid in the application. In any case it is nto impossible that one of the heirs may nto have been agreeable to Madan Lal realizing the entire rent. It was in these circumstances all the more important for Madan Lal to prove that he was entitled to receive rent on behalf of all the heirs. Admittedly, Madan Lal's step-mtoher was 'co-owner in this property' (see the statement of Krishan Kumar Public Witness 2). I have gone through the evidence on behalf of Madan Lal and two salient points emerge there from. (1) there is ntohing to show who were the heirs surviving D. D. Bharadwaj and consequently whether all the heirs had authorized Madan Lal to receive rent on behalf of the joint owners or co-owners. (2) Madan Lal as Public Witness 3 stated that 'our step-mtoher has also gto no objection to my managing the property.' It is quite ambiguous what the words 'managing the property' mean and do nto necessarily signify delegation of authority to realize rent. In these circumstances, it must be held that Madan Lal failed to prove that he was the landlord within the meaning of clause (c) of section 2 of the said Act. It may be mentioned that Madan Lal did nto even choose to make toher heirs of Shri D. D. Bharadwaj as respondents in the application. In these circumstances, the revision must be allowed and the order of the Appellate Authority set aside. The application of Madan Lal for ejectment of the tenants is, thereforee, dismissed with no order as to costs.
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