Rama Kant & Ors. Vs. Sona Devi
EmailAppeal: Civil Appeal No. 6724 of 1999
(From the Judgment and Order dated 18.3.99 of the Punjab & Haryana High Court in C.R. No. 2864 of 1998)
(From the Judgment and Order dated 18.3.99 of the Punjab & Haryana High Court in C.R. No. 2864 of 1998)
Petitioner: Rama Kant & Ors.
Respondent: Sona Devi
Apeal: Civil Appeal No. 6724 of 1999
(From the Judgment and Order dated 18.3.99 of the Punjab & Haryana High Court in C.R. No. 2864 of 1998)
(From the Judgment and Order dated 18.3.99 of the Punjab & Haryana High Court in C.R. No. 2864 of 1998)
Judges: SYED SHAH MOHAMMED QUADRI & DORAISWAMY RAJU, JJ.
Date of Judgment: Feb 21, 2002
Appearances:
Mr. R.P. Bansal, Senior Advocate, Mr. Sanjay Agarwal, Mr. S.K. Verma and Mr. P.R. Kumar, Advocates with him for the Appellant.
Mr. Pradeep Gupta, Advocate for Mr. K.K. Gupta, Advocate for the Respondent.
Head Note:
RENT CONTROL AND EVICTION
Haryana Urban (Control of Rent and Eviction) Act, 1973
Section 13 (2) – Tenancy – Eviction of tenant on the ground of default in payment of rent – Recognized modes of payment of rent – Respondent-landlady entering into agreement with first and second appellants for letting out her shop premises on monthly rent – Third appellant who was the son of first appellant joining the business – Respondent filing eviction petition on the ground of non-payment of rent – Appellants contesting the suit – Third appellant paying the arrears of rent and other charges and respondent landlady accepting the same without prejudice to her rights – Rent controller accepting the contention of the appellants that there was valid tender of rent – However, appellate authority holding that the payment by the third appellant could not be treated as valid tender on behalf of the first appellant and accordingly ordering eviction – High Court agreeing with the appellate authority’s order. Held, restoring the order of the rent controller the tender of rent by the third appellant who was a member of the family of first appellant without any inconsistent claim was nothing but tender for and on behalf of the tenant and such tender cannot be considered to be not a valid tender. High Court, therefore, erred in confirming the order of the appellate authority.
Held:
Appellant no. 3 who paid the rent is admittedly the son of appellant no.1. It is not in dispute that under proviso to sub-section (2) of section 13, the rent due was paid by appellant no. 3. The controversy, however, is that tender of rent by appellant no. 3 who is admittedly not a tenant, though accepted, is not a valid tender within the meaning of the first proviso. It may be noticed here that while tendering the arrears of rent, he never claimed that he was tendering it as the sub-tenant. In his statement in the witness box, he did say that he tendered the rent on behalf of his father. The tender of rent by appellant no. 3 was as a member of family of the first appellant. When rent is tendered by any member of the tenants’ family to the landlord without any inconsistent claim, it cannot but be for and on behalf of the tenant. In view of this position, it cannot be said that the tender of rent by appellant no. 3 was not a valid tender. (Para 14)
We are unable to sustain the impugned order of the High Court, confirming the order of the appellate authority. It is set aside accordingly and the order of the learned rent controller is restored. Consequently, the eviction petition shall stand dismissed. (Para 15)
Cases Reffered:
1. Maghi Lal (dead) through Lrs. v. Kundan Lal & Ors. (1994 Supp. (2) SCC 444) (Para 5)
2. Pushpa Devi & Ors. v. Milkhi Ram (dead) by his Lrs. (JT 1990 (1) SC 176) (Para 5)
2. Pushpa Devi & Ors. v. Milkhi Ram (dead) by his Lrs. (JT 1990 (1) SC 176) (Para 5)
JUDGEMENT:
ORDER
1. The point that arises for consideration in this appeal is; whether the first appellant, a tenant, can avail protection of the first proviso to section 13 (2) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 on payment of the arrears of rent and other amounts specified therein by the third appellant, his son.
2. This appeal is from the order of the High Court of Punjab & Haryana at Chandigarh dismissing the appellants civil revision no. 2864 of 1998 on March 18, 1999. Appellant nos. 1 and 2 are brothers and are tenants of a shop bearing no. 680/17 situated in Prem Market, New Subzi Mandi Road, Kaithal (for short ‘the premises’). The respondent is the landlady of the premises. On July 1, 1990, a rental agreement was executed between the respondent and appellant nos. 1 and 2 agreeing to let out the premises on a monthly rent of Rs. 750/- plus house tax. Appellant no. 3 who is the son of appellant no. 1, has been residing with him and helping him in his business. The respondent filed eviction petition on the ground of non-payment of rent of the premises from October 1, 1995 till the date of filing of the case on December 6, 1995 under section 13 (2) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, ‘the Act’).
3. The appellants contested the case. Appellant no. 3 paid the arrears of rent for the said period together with other specified sums. The respondent accepted the same without prejudice to her rights. The appellants contended that it was a valid tender on behalf of the first appellant.
4. The learned rent controller accepted the contention of the appellants that there was a valid tender of rent within the ambit of the said provision and dismissed the eviction petition on March 31, 1997. However, on appeal by the respondent, the appellate authority took the view that the tender of rent by appellant no. 3, could not be treated as a valid tender as being for and on behalf of the first appellant, ordered eviction of the appellants and thus allowed the appeal on May 16, 1998. The appellants unsuccessfully assailed the order of the appellate authority before the High Court in civil revision no. 2864 of 1998. On dismissal of their revision by order dated March 18, 1999, the appellants have come up in appeal by special leave of this Court.
5. Mr. R. P. Bansal, the learned senior counsel appearing for the appellants, contends that the rent tendered by appellant no. 3 was accepted by the respondent without prejudice which only means that acceptance of rent would not prejudice the other proceedings pending between the same parties, therefore, payment of rent should be treated as a valid tender within the meaning of the first proviso of section (2) of section 13 of the Act. He invited our attention to the following decisions of this Court: Pushpa Devi & Ors. v. Milkhi Ram (dead) by his Lrs.1 (1990 (2) SCC 134) and Maghi Lal (dead) through Lrs. v. Kundan Lal & Ors. (1994 Supp. (2) SCC 444).
6. Shri Pradeep Gupta, the learned counsel for the respondent, on the other hand, contends that appellant no. 3, though a son, was alleged to be a sub-tenant and on that ground another eviction proceeding is pending between the parties and therefore, rent tendered by him could not be treated as a valid tender in the present case.
7. We may refer to the relevant provision of section 13 (2) of the Act which reads as under:
“Section 13, Eviction of tenants –
(2) A landlord who seeks to evict his tenant shall apply to the controller, for direction in that behalf. If the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied:
(i) That the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that if the tenant within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the controller, at eight percent per annum on such arrears together with such costs of the application, if any, as may be allowed by the controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid:
Provided further that the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately preceding the date of application under the provisions of this Act;
*** *** ***
8. From a perusal of the abovenoted provision, it is plain that not paying or rendering rent due by a tenant in respect of the building or rented land within 15 days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, gives cause of action to a landlord to seek eviction of the tenant by applying to the controller for a direction in that behalf. By the deeming provision of the first proviso to sub-section (2), quoted above, the right of the landlord to seek eviction on the ground of non-payment of rent gets defeated if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the controller, at eight percent per annum on such arrears together with such costs of the application, if any, as may be allowed by the controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.
9. It may be relevant to note here that while granting leave, it was pointed out that the said two decisions need to be examined as no reasoning was to be found in the latter decision.
10. It would be useful to refer to the aforementioned decisions before adverting to the contentions of the learned counsel.
11. In Pushpa Devi’s case (supra) one Amar Chand had taken the premises on rent. He, along with his brother Diwan Chand and another person, Salig Ram had constituted a partnership firm. On the death of Amar Chand, his brother Diwan Chand and on his death, his widow Pushpa Devi and her minor son Yash Pal became the tenant. They along with Salig Ram continued as partners of the firm. The question in that case was, whether rent tendered on behalf of all the appellants including Salig Ram was a valid tender within the meaning of section 13 (2) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as, ‘the Act’). It was held that tender of rent was valid. This Court pointed out that the said provision appeared to be analogous to section 114 of the Transfer of Property Act which conferred discretion to the court to grant relief against forfeiture for non-payment of rent and that the proviso in the Rent Act went a step further, leaving no discretion to the controller or court even if the tenant was a constant defaulter, provided the arrears and other amount specified were paid or tendered on the first date of hearing.
12. In Maghi Lal’s case (supra) the original lease was in favour of the said Maghi Lal. After the lease, he formed a partnership with two others and those two persons tendered the rent. Inasmuch as they were not the tenants, this Court held that the landlord was not obliged to accept the
payment of rent recognising them as “tenant”. In that case, Pushpa Devi’s case (supra) was distinguished on the facts of that case.
13. It may be pointed out that in Pushpa Devi’s case (supra), Amarchand had taken the premises on rent as a partner of the firm. The advocate appearing for all the partners tendered the rent. The objection there was on the ground that one of the three partners for whom the advocate was appearing, namely, Salig Ram was not a party to the rental agreement, therefore, the tender of rent by the advocate was not valid. The objection was turned down by this Court. In Maghi Lal’s case (supra), Maghi Lal had taken the premises in his individual capacity and later entered into partnership. Payment of rent by the other partner who was not the tenant, was held to be not a valid tender.
14. In the instant case, appellant no. 3 who paid the rent is admittedly the son of appellant no.1. It is not in dispute that under proviso to sub-section (2) of section 13, the rent due was paid by appellant no. 3. The controversy, however, is that tender of rent by appellant no. 3 who is admittedly not a tenant, though accepted, is not a valid tender within the meaning of the first proviso. It may be noticed here that while tendering the arrears of rent, he never claimed that he was tendering it as the sub-tenant. In his statement in the witness box, he did say that he tendered the rent on behalf of his father. The tender of rent by appellant no. 3 was as a member of family of the first appellant. When rent is tendered by any member of the tenants’ family to the landlord without any inconsistent claim, it cannot but be for and on behalf of the tenant. In view of this position, it cannot be said that the tender of rent by appellant no. 3 was not a valid tender.
15. For the aforementioned reasons, we are unable to sustain the impugned order of the High Court, confirming the order of the appellate authority. It is set aside accordingly and the order of the learned rent controller is restored. Consequently, the eviction petition shall stand dismissed. The appeal is allowed; in the facts and circumstances of the case, we make no order as to costs.
1. The point that arises for consideration in this appeal is; whether the first appellant, a tenant, can avail protection of the first proviso to section 13 (2) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 on payment of the arrears of rent and other amounts specified therein by the third appellant, his son.
2. This appeal is from the order of the High Court of Punjab & Haryana at Chandigarh dismissing the appellants civil revision no. 2864 of 1998 on March 18, 1999. Appellant nos. 1 and 2 are brothers and are tenants of a shop bearing no. 680/17 situated in Prem Market, New Subzi Mandi Road, Kaithal (for short ‘the premises’). The respondent is the landlady of the premises. On July 1, 1990, a rental agreement was executed between the respondent and appellant nos. 1 and 2 agreeing to let out the premises on a monthly rent of Rs. 750/- plus house tax. Appellant no. 3 who is the son of appellant no. 1, has been residing with him and helping him in his business. The respondent filed eviction petition on the ground of non-payment of rent of the premises from October 1, 1995 till the date of filing of the case on December 6, 1995 under section 13 (2) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, ‘the Act’).
3. The appellants contested the case. Appellant no. 3 paid the arrears of rent for the said period together with other specified sums. The respondent accepted the same without prejudice to her rights. The appellants contended that it was a valid tender on behalf of the first appellant.
4. The learned rent controller accepted the contention of the appellants that there was a valid tender of rent within the ambit of the said provision and dismissed the eviction petition on March 31, 1997. However, on appeal by the respondent, the appellate authority took the view that the tender of rent by appellant no. 3, could not be treated as a valid tender as being for and on behalf of the first appellant, ordered eviction of the appellants and thus allowed the appeal on May 16, 1998. The appellants unsuccessfully assailed the order of the appellate authority before the High Court in civil revision no. 2864 of 1998. On dismissal of their revision by order dated March 18, 1999, the appellants have come up in appeal by special leave of this Court.
5. Mr. R. P. Bansal, the learned senior counsel appearing for the appellants, contends that the rent tendered by appellant no. 3 was accepted by the respondent without prejudice which only means that acceptance of rent would not prejudice the other proceedings pending between the same parties, therefore, payment of rent should be treated as a valid tender within the meaning of the first proviso of section (2) of section 13 of the Act. He invited our attention to the following decisions of this Court: Pushpa Devi & Ors. v. Milkhi Ram (dead) by his Lrs.1 (1990 (2) SCC 134) and Maghi Lal (dead) through Lrs. v. Kundan Lal & Ors. (1994 Supp. (2) SCC 444).
6. Shri Pradeep Gupta, the learned counsel for the respondent, on the other hand, contends that appellant no. 3, though a son, was alleged to be a sub-tenant and on that ground another eviction proceeding is pending between the parties and therefore, rent tendered by him could not be treated as a valid tender in the present case.
7. We may refer to the relevant provision of section 13 (2) of the Act which reads as under:
“Section 13, Eviction of tenants –
(2) A landlord who seeks to evict his tenant shall apply to the controller, for direction in that behalf. If the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied:
(i) That the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that if the tenant within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the controller, at eight percent per annum on such arrears together with such costs of the application, if any, as may be allowed by the controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid:
Provided further that the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately preceding the date of application under the provisions of this Act;
*** *** ***
8. From a perusal of the abovenoted provision, it is plain that not paying or rendering rent due by a tenant in respect of the building or rented land within 15 days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, gives cause of action to a landlord to seek eviction of the tenant by applying to the controller for a direction in that behalf. By the deeming provision of the first proviso to sub-section (2), quoted above, the right of the landlord to seek eviction on the ground of non-payment of rent gets defeated if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the controller, at eight percent per annum on such arrears together with such costs of the application, if any, as may be allowed by the controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.
9. It may be relevant to note here that while granting leave, it was pointed out that the said two decisions need to be examined as no reasoning was to be found in the latter decision.
10. It would be useful to refer to the aforementioned decisions before adverting to the contentions of the learned counsel.
11. In Pushpa Devi’s case (supra) one Amar Chand had taken the premises on rent. He, along with his brother Diwan Chand and another person, Salig Ram had constituted a partnership firm. On the death of Amar Chand, his brother Diwan Chand and on his death, his widow Pushpa Devi and her minor son Yash Pal became the tenant. They along with Salig Ram continued as partners of the firm. The question in that case was, whether rent tendered on behalf of all the appellants including Salig Ram was a valid tender within the meaning of section 13 (2) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as, ‘the Act’). It was held that tender of rent was valid. This Court pointed out that the said provision appeared to be analogous to section 114 of the Transfer of Property Act which conferred discretion to the court to grant relief against forfeiture for non-payment of rent and that the proviso in the Rent Act went a step further, leaving no discretion to the controller or court even if the tenant was a constant defaulter, provided the arrears and other amount specified were paid or tendered on the first date of hearing.
12. In Maghi Lal’s case (supra) the original lease was in favour of the said Maghi Lal. After the lease, he formed a partnership with two others and those two persons tendered the rent. Inasmuch as they were not the tenants, this Court held that the landlord was not obliged to accept the
payment of rent recognising them as “tenant”. In that case, Pushpa Devi’s case (supra) was distinguished on the facts of that case.
13. It may be pointed out that in Pushpa Devi’s case (supra), Amarchand had taken the premises on rent as a partner of the firm. The advocate appearing for all the partners tendered the rent. The objection there was on the ground that one of the three partners for whom the advocate was appearing, namely, Salig Ram was not a party to the rental agreement, therefore, the tender of rent by the advocate was not valid. The objection was turned down by this Court. In Maghi Lal’s case (supra), Maghi Lal had taken the premises in his individual capacity and later entered into partnership. Payment of rent by the other partner who was not the tenant, was held to be not a valid tender.
14. In the instant case, appellant no. 3 who paid the rent is admittedly the son of appellant no.1. It is not in dispute that under proviso to sub-section (2) of section 13, the rent due was paid by appellant no. 3. The controversy, however, is that tender of rent by appellant no. 3 who is admittedly not a tenant, though accepted, is not a valid tender within the meaning of the first proviso. It may be noticed here that while tendering the arrears of rent, he never claimed that he was tendering it as the sub-tenant. In his statement in the witness box, he did say that he tendered the rent on behalf of his father. The tender of rent by appellant no. 3 was as a member of family of the first appellant. When rent is tendered by any member of the tenants’ family to the landlord without any inconsistent claim, it cannot but be for and on behalf of the tenant. In view of this position, it cannot be said that the tender of rent by appellant no. 3 was not a valid tender.
15. For the aforementioned reasons, we are unable to sustain the impugned order of the High Court, confirming the order of the appellate authority. It is set aside accordingly and the order of the learned rent controller is restored. Consequently, the eviction petition shall stand dismissed. The appeal is allowed; in the facts and circumstances of the case, we make no order as to costs.
