Ram Deo Vs. Umrao Singh  INSC
237 (15 November 1979)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 323 1980 SCR (2) 67 1980
SCC (1) 59
U.P. (Temporary) Control of Rent and Eviction
Act 1947- Section 3(1)(a)-Scope of
In respect of arrears of rent the
respondent-landlord and the appellant who was his tenant entered into an
agreement on June 13, 1960 that the tenant would pay every month Rs. 50/-
representing Rs. 25/- as arrears of rent and Rs. 25/- towards the current rent.
For some time the appellant made the payments in accordance with the agreement
but thereafter fell in arrears. The respondent served a notice of demand upon
the appellant on August 21, 1961.
Eventually the respondent instituted a suit
for damages and eviction of the appellant from the premises.
The appellant pleaded that the arrears of
rent due at the date of notice were Rs. 75/- only which did not exceed three
months rent and that the balance of the amount demanded represented only past
arrears covered by the agreement in respect of which the landlord had waived
his right of ejectment.
Dismissing the suit the trial court held that
only three months’ rent was in arrears and no ground for eviction had been made
out under section 3(1)(a) of the U.P.
(Temporary) Control of Rent and Eviction Act,
On appeal the Civil Judge was of the view
that the rent in arrears on the date of agreement did not lose its character as
"arrears of rent" merely because there was an agreement to pay it in installments.
The High Court affirmed the finding of the Civil Judge.
In appeal to this Court it was contended on
behalf of the appellant that out of Rs. 150/- due to the respondent on the date
of his notice only Rs. 75/- was due towards the arrears of rent for three
months preceding the notice while the balance of Rs 75/- was a distinct
liability under the agreement and therefore, could not be treated and tacked on
as arrears of rent to the rent due for the three months preceding the date of notice,
for the purpose of section 3(1) (a) of the Act.
Allowing the appeal and accepting the
HELD: 1. The appellant was not in
"arrears of rent for more than three months" within the meaning of
section 3(1)(a) of the Act and therefore was not liable to be evicted under the
clause. [71 F]
2. As a result of the agreement dated June
13, 1960 the pre-agreement arrears lost their original character of
"arrears of rent" and assumed the character of a consolidated debt,
which under the terms of the agreement, was payable by the debtor (appellant)
in monthly installments. The agreement 68 brought into being a new cause of
action and created a liability against the tenant, independent and distinct
from that founded on the rent note or the lease of the premises.
The arrears of three installments due under
the agreement had ceased to be "arrears of rent" and could not be
tacked on to the rent due for three months preceding the date of notice, for
the purpose of the section.[71 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2601 of 1969.
Appeal by Special Leave from the Judgment
dated 21-8- 1069 of the Allahabad High Court in Second Appeal No. 2693/63.
W.S. Barlingay and R.C. Kohli for the
S.L. Aneja and K.L. Taneja for the
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave is directed against a judgment, dated
August 21, 1969, of the High Court of Allahabad, affirming on second appeal the
judgment of the Civil Judge, Dehra Dun. It arises out of these facts:
Umrao Singh, respondent herein, who died
during the pendency of proceedings in this Court and is substituted by his
legal representatives, instituted a suit on September 26, 1961 against Ram Deo,
appellant herein, for damages and for eviction from House No. 122B, Choharpur,
District Dehra Dun. Umrao Singh was the landlord of the suit premises. Ram Deo
was occupying the premises at a monthly rent of Rs. 25.
On June 13, 1960, a sum of Rs. 600 was due to
the respondent from the appellant as arrears of rent and an agreement was
executed between the parties on that date, according to which the tenant had to
pay Rs. 50 every month to the respondent, to wit Rs. 25 towards liquidation of
the compounded arrears of rent, and Rs. 25 per month towards the current rent
falling due. The appellant fell in arrears again. Thereupon, the respondent
served a notice of demand upon the plaintiff on August 21, 1961, requiring him
to pay Rs. 380 as the arrears of rent (Rs. 5 being balance due from the period
April 10, 1960 to May 9, 1960 and Rs. 370 for the period from May 10, 1960 to
August 9, 1961) within one month from the receipt of the notice.
The tenant-appellant pleaded that the parties
had acted upon the said agreement dated June 12, 1960, and on settlement of
accounts in April 1961, a sum of Rs. 305 was alleged to be due to the
respondent. Thereafter the appellant made another payment of Rs. 50 to the
respondent on June 6, 1961. On September 27, 1961 appellant tendered to the
respondent a sum of Rs. 200. The respondent did not 69 accept this tender, and
instead, instituted the suit for damages and eviction of the appellant from the
The tenant further pleaded that the arrears
of rent due at the date of notice was Rs. 75 only which did not exceed three
months' rent, that the rest of the amount (Rs. 75) demanded represented only
past arrears covered by the agreement in respect of which the landlord had
waived his right of ejectment.
The trial court held that from Ex. A-2, it
was clear that only three months' rent was in arrears and therefore, no ground
for eviction had been made out under Section 3(a) of the U.P. (Temporary)
Control of Rent and Eviction Act No. III of 1947 (hereinafter referred to as
the Act). With this reasoning, the trial court dismissed the respondent's
petition for eviction.
On appeal, the Additional Civil Judge, Dehra
Dun, by his judgment dated May 29, 1963, reversed the finding of the Munsif and
held that the rent which was in arrears upto June 13, 1960 and which was the
subject-matter of the agreement of that date, did not lose its character as
"arrears of rent" merely because there was an agreement to pay the
same in installments. On these premises, he allowed the appeal and directed
eviction of the tenant.
The tenant carried a further appeal to the
The High Court affirmed the finding of the
Civil Judge and dismissed the appeal. Hence this appeal by the tenant.
Dr. Barlingay, learned counsel for the
appellant has advanced two contentions. First, that out of the amount of Rs.
150 due to the respondent at the date of the notice, Rs. 75 was due under the
agreement dated June 12, 1960, and that amount could not be treated as arrears,
of rent and tacked on to three months current rent in arrears, for the purpose
of clause (a) of Section 3(1) of the Act. It is argued that the liability to
pay the past amount of Rs. 75 arises out of the aforesaid agreement which
furnished an independent cause of action different from that founded on the
rent note or the lease of the premises. Second, that Section 114 of the
Transfer of Property Act will be applicable to the situation because this is a
matter on which the Rent Act is silent.
Since the tenant has cleared all the arrears
of rent on the first hearing of the suit, he could not be evicted in view of
the provisions contained in Section 114 of the Transfer of Property Act.
In reply, Mr. Aneja submits that the
pre-agreement arrears of rent did not lose their original character as arrears
of rent, merely because the landlord had agreed to allow the tenant to clear
them in instal- 70 ments. It is emphasised that what was intended to be an
accommodation could not be turned into a handicap for the landlord. It is
argued that since on the date of the demand notice served upon the appellant,
the latter was admittedly liable to pay Rs. 150; Rs. 75 towards the rent of 3
months prior to August 12, 1961 and Rs. 75 towards the rent of three months
preceding the demand notice, he was in arrears of rent for a period of "more
than three months" within the meaning of clause (a) of Section 3 of the
Act, and, as such, was liable to be evicted.
We will now deal with the first contention
canvassed by Dr. Barlingay.
The material part of Section 3 of the Act
reads as follows:
"3(1). Subject to any order passed under
sub- section (3) no suit shall, without the permission of the District
Magistrate, be filed in any civil court against a tenant for his eviction from
any accommodation, except on one or more of the following grouds:- (a) That the
tenant is in arears 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
(b) to (g)........................." In
order to make out a ground for eviction under clause (a) of Section 3(1) the
landlord must establish three facts: (i) that the tenant is in arrears of rent;
(ii) that such arrears are of rent for more than three months, and (iii) the
tenant has failed to pay the same to the landlord within one month of the
service upon him of a notice of demand. If any one of these factual ingredients
is not established, no order of eviction can be passed under this Clause. In
the present case, there is no dispute that at the date of the notice, the
tenant owed an amount of Rs. 150 to the landlord, out of which Rs. 75
represented three months' rent preceding the notice. There is also no dispute
that the balance of Rs. 75 due from the tenant related to the period prior to
the agreement, dated June 12, 1960, and under the agreement, the tenant was
bound to pay the same in three monthly installments, which he had, in breach of
the agreement, failed to pay. Controversy centres round the question, whether
this balance of Rs. 75 could also be treated as "arrears of rent" and
tacked on to the arrears of rent relating to the three months preceding the
notice for the purpose of clause (a) of Section 3(1) of the Act. In our
opinion, the answer to this question must be in the negative. As a result of
the aforesaid 71 agreement, the pre-agreement arrears lost their original
character as "arrears of rent" and assumed the character of a
consolidated debt which, under the terms of the agreement, was payable by the
debtor (appellant) in monthly installments. The agreement had in respect of the
past arrears, brought into being a new cause of action and created a liability
against the tenant, independent and distinct from that founded on the rent note
or the lease of the premises. Consequently if the appellant, in breach of the
agreement, defaulted to pay any installment, the remedy of the respondent
(creditor) would be to file a suit for the recovery of the amount due on the
basis of the agreement, dated June 12, 1960. Thus, the arrears of three installments
due under the agreement had ceased to be "arrears of rent" and could
not be tacked on to the arrears of three months rent due at the date of the
notice, for the purposes of clause (a) of Section 3(1).
The proposition can be tested by taking an
Supposing, the appellant had defaulted to pay
four monthly installments of Rs. 25 each in accordance with the aforesaid
agreement, but had regularly paid the rent as it fell due every month for the
post-agreement period. Will the respondent in such a situation be entitled to
sue for the eviction of the tenant on the ground that he has committed four
successive breaches and defaults under the said agreement? The answer is an
obvious 'No'. The respondent's remedy in such a situation, will only be to sue
for the recovery of the amounts due on the foot of the aforesaid agreement.
In the light of the above discussion the
conclusion is inescapable that for the purposes of clause (a) of Section 3(1)
the appellant was in arrears of rent for three months, only. In other words, he
was not in "arrears of rent for more than three months" within the
meaning of clause (a) and, as such, was not liable to be evicted under that
clause. The High Court and the first appellate court were in error in holding
to the contrary.
In the view we take, it is not necessary to
deal with the second contention canvassed by Dr. Barlingay.
In the result, we allow this appeal, set
aside the decree of the High Court and dismiss the respondent's suit.
In the circumstances of the case however, we
leave the parties to pay and bear their own costs in this Court.
P.B.R. Appeal allowed.