# Babu Ram and others v. Special Judge/A.D.J., Bijnor and others

- **Citation:** (2004) 1 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-11
- **Case number:** Civil Misc. Writ Petition No.38020 of 1998
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-and-others-v-special-judge-a-d-j-bijnor-and-others-40336
- **Pages:** 5

## Headnote

Sri M.K. Gupta
S.C.

(A)
Urban
Buildings
(Regulation
of
Letting, Rent & Eviction) Act, 1972- Ss.
30 (6) and 20 (4)- Suit by landlord for
ejectment and arrears of rent on ground
of default and retrial alteration-After
refusal of money order by landlord the
tenant was not in arrears of rent-Hence
entitled to deposit under S. 30-Deposit
of rent by tenant under S. 30 on
19.9.1991 and 3.1.1992-Even though
ejectment suit was filed on 29.8.1991,
tenant was not aware of same-Hence
said deposits amount to payment of rent
to landlord under S. 30 (6)-Tenant not
held defaulter-Not required to deposit
same again under S. 20 (4).

(B) U.P. Urban Building (Regulation of
Letting Rent & Eviction) Act S-20 (2)(c)-
Secondly, contractions by erecting angle
irons and concrete pillars admitted by
tenant-Also
construction
by
placing
finished on pillars amount to statural
alteration within S. 20 (2) (c)- Finding
that said constructions blocker the shop
in question and disfigured the sameHence suit by landlord-Liable to be
decreed.

Held: Para 8,9 & 12

In
view
of
the
above
Full
bench
pronouncement after the refusal of
money order by landlord on 23.8.1991
rent was in arrears but the tenant was
not in arrears of rent.

The matter may be looked from another
angle also. Rent sent through money
order was refused by the landlord on
23.8.1991 hence tenant was entitled to
deposit the same under Section 30. The
tenant deposited the rent under Section
30 on 19.9.1991 and 3.1.1992. Even
though suit for ejectment had been filed
prior to 19.9.1991 (i.e. on 29.8.1991)
however, tenant was not aware of the
filing
of
suit
for
ejectment
hence
deposits made by him under Section 30
on 19.9.1991 and 3.1.1992 amount to
payment to the landlord under section
30(6) of the Act. The tenant was not
therefore a defaulter regarding that rent
and not required to deposit the same
again under Section 20(4) of the Act.

The tenant admitted and the courts
below found that tenant had made some
constructions by erecting iron angles and
concrete pillars. The trial court has also
recorded a finding that the tenant on the
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254 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
chabutra in front of the shop had
constructed a wooden shop and after
constructing a chabutra in the path way
had covered it by tin shed, which was
placed upon concrete pillars and angle
irons. Constructing a wooden shop or
placing a tin on the existing walls may
not amount to such changes as are
mentioned in section 20(2)(c) of the Act.
However constructing concrete pillars
and placing tin shed thereupon does
amount
to
such
structural
change.
Finding has been recorded that the
changes
affected
and
constructions
made by the tenant have blocked the
shop in dispute and path way has also
been
narrowed.
The
constructions
therefore disfigured the shop in dispute.
In this regard reference may be made to
1988(2) ARC 243 (S.C). In the said
authority tin shed had been fixed on
pucca pillars.
Case law discussed:
1968 AWR 167 (All) (FB)
2000 (1) ARC 653
1988 (2) ARC 243 (SC)
1990 (1) ARC 114
1991 (1) ARC 557

## Text

1 All] Babu Ram and others V. Spl. Judge/Additional District Judge, Bijnor and others 253

9. In the result the writ petition
succeeds and is allowed. The orders
dated 15.2.1980 passed by the Cess
Officer and order dated 13.11.1981
passed by the appellate committee,
annexures- 4 and 7 respectively to the
writ petition are quashed. The petitioner
shall be entitled for refund of the amount
deposited under the interim order of this
court. The respondents shall refund the
entire amount within three months from
the date a certified copy of this order is
produced before the respondent no.1.

10. Parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2004

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.38020 of 1998

Babu Ram and others
...Petitioner
Versus
Special Judge/A.D.J., Bijnor and others

 ...Respondents

Counsel for the Petitioner:
Sri N.K. Srivastava
Sri Neeraj Agrawal
Sri K.M. Dayal

Counsel for the Respondents:
Sri M.K. Gupta
S.C.

(A)
Urban
Buildings
(Regulation
of
Letting, Rent & Eviction) Act, 1972- Ss.
30 (6) and 20 (4)- Suit by landlord for
ejectment and arrears of rent on ground
of default and retrial alteration-After
refusal of money order by landlord the
tenant was not in arrears of rent-Hence
entitled to deposit under S. 30-Deposit
of rent by tenant under S. 30 on
19.9.1991 and 3.1.1992-Even though
ejectment suit was filed on 29.8.1991,
tenant was not aware of same-Hence
said deposits amount to payment of rent
to landlord under S. 30 (6)-Tenant not
held defaulter-Not required to deposit
same again under S. 20 (4).

(B) U.P. Urban Building (Regulation of
Letting Rent & Eviction) Act S-20 (2)(c)-
Secondly, contractions by erecting angle
irons and concrete pillars admitted by
tenant-Also
construction
by
placing
finished on pillars amount to statural
alteration within S. 20 (2) (c)- Finding
that said constructions blocker the shop
in question and disfigured the sameHence suit by landlord-Liable to be
decreed.

Held: Para 8,9 & 12

In
view
of
the
above
Full
bench
pronouncement after the refusal of
money order by landlord on 23.8.1991
rent was in arrears but the tenant was
not in arrears of rent.

The matter may be looked from another
angle also. Rent sent through money
order was refused by the landlord on
23.8.1991 hence tenant was entitled to
deposit the same under Section 30. The
tenant deposited the rent under Section
30 on 19.9.1991 and 3.1.1992. Even
though suit for ejectment had been filed
prior to 19.9.1991 (i.e. on 29.8.1991)
however, tenant was not aware of the
filing
of
suit
for
ejectment
hence
deposits made by him under Section 30
on 19.9.1991 and 3.1.1992 amount to
payment to the landlord under section
30(6) of the Act. The tenant was not
therefore a defaulter regarding that rent
and not required to deposit the same
again under Section 20(4) of the Act.

The tenant admitted and the courts
below found that tenant had made some
constructions by erecting iron angles and
concrete pillars. The trial court has also
recorded a finding that the tenant on the
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254 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
chabutra in front of the shop had
constructed a wooden shop and after
constructing a chabutra in the path way
had covered it by tin shed, which was
placed upon concrete pillars and angle
irons. Constructing a wooden shop or
placing a tin on the existing walls may
not amount to such changes as are
mentioned in section 20(2)(c) of the Act.
However constructing concrete pillars
and placing tin shed thereupon does
amount
to
such
structural
change.
Finding has been recorded that the
changes
affected
and
constructions
made by the tenant have blocked the
shop in dispute and path way has also
been
narrowed.
The
constructions
therefore disfigured the shop in dispute.
In this regard reference may be made to
1988(2) ARC 243 (S.C). In the said
authority tin shed had been fixed on
pucca pillars.
Case law discussed:
1968 AWR 167 (All) (FB)
2000 (1) ARC 653
1988 (2) ARC 243 (SC)
1990 (1) ARC 114
1991 (1) ARC 557

(Delivered by Hon'ble S.U. Khan, J.)

1. This is tenant's writ petition
arising out of suit (S.C.C. Suit No.6 of
1991)
filed
by
landlord-respondent
against him for ejectment from the
tenanted accommodation and for recovery
of arrears of rent and damages for use and
occupation. The ejectment was sought on
the ground of default and material
alteration. The suit was decreed and
revision of the tenant was dismissed
against which tenant-petitioner filed writ
petition No.38691 of 1996. The said writ
petition was allowed on 3.12.1996 and the
matter was remanded to J.S.C.C. to decide
as to whether deposits made by the tenant
under Section-30 of U.P. Act no.13 of
1972 (hereinafter referred to as the Act)
were validly made or not and whether
constructions and alterations made by
tenant
disfigured
the
building
and
diminished its value and utility. After
remand J.S.C.C., Bijnor again decreed the
suit on 2.4.1997. Revision filed against
the same being Revision No.25 of 1997
has also been dismissed on 15.10.1998 by
Special Judge/Additional District Judge,
Bijnor hence this writ petition.

2. According to the plaint rate of
rent is Rs.50/- per month and apart from
that tenant is also liable to pay house tax
and water tax at the rate of 17.5% per
annum. Regarding rate of rent there is no
dispute. In the plaint it was stated that
rent had not been paid since May, 1978
and that inspite of notice of termination of
tenancy and demanding the rent dated
18.7.1991 served upon the tenant on
19.7.1991 the same was not paid to the
landlord within a month from the date of
receipt of notice. The tenant sent the rent
through money order dated 23.8.1991,
which was refused by the landlord on the
ground that it was sent after one month
from the date of receipt of notice. The
tenant in order to bring the money order
of arrears of rent sent by him within the
period of one month of receipt of notice
tried to stretch and contract both the ends
of the same at the belated stage of the
case. First the tenant tried to assert that
he received the notice on 24.7.1991 and
not 19.7.1991. Thereafter, tenant sought
to adduce some money order coupon
dated
7.8.1991
through
additional
evidence in revision after remand by the
High Court which was rejected by the
revisional court. In my opinion the courts
below have rightly held that the notice
was served on 19.7.1991 and not
24.7.1991 and money order was sent by
the tenant on 23.8.1991 and not 7.8.1991.
There is, therefore, no error in the finding
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1 All] Babu Ram and others V. Spl. Judge/Additional District Judge, Bijnor and others 255
recorded by the courts below that the
arrears of rent were sent through money
order by the tenant to the landlord after
one month from the date of receipt of
notice.

3. The tenant deposited rent from
May 1978 till October 1979 in SCC suit
No. 123 of 1978, which had earlier been
filed by the landlord. It is also admitted to
the landlord and conceded by learned
counsel for the landlord that the money
order for Rs. 771.25 sent by the tenant
was accepted by the landlord on 7.4.1984.
This included rent from January to March
1984. The rest of the amount was
probably sent towards arrears of taxes.
The landlord in his notice demanded the
rent with effect from May 1978. The
landlord included even the rent deposited
in earlier suit (SCC suit NO. 123 of 1978)
and the amount, which had been received
by him through money order on 7.4.1984
in the said notice. However, in view of
full bench authority reported in 2000(1)
A.R.C 653, wrong demand of rent in
notice does not render the notice invalid.

4. The tenant deposited the rent
under Section 30 of the Act thrice. The
first case was registered as Misc. Case
No.43 of 1980, second as Misc. Case
No.8 of 1985 and the third as Misc. Case
No.66 of 1991. It is the deposit under the
third case which was mainly challenged
by the landlord as being invalid. In-fact
J.S.C.C. after remand from the High
Court considered only the deposit made
under Section 30 of the Act in the third
case and held the same to be invalid.
Regarding deposits under the first two
misc. cases no discussion was made by
the trial court in its judgment. The
revisional court has held the deposits
under the first two misc. cases also to be
invalid.

5. As far as the third deposit in
Misc. Case No.66 of 1991 is concerned it
is un-disputed that the rent from 1.7.1990
to 30.9.1991 was deposited on 19.9.1991
and the rent from 1.10.1991 to 31.3.1992
was deposited on 3.1.1992. Meanwhile,
the suit giving rise to the instant writ
petition had been filed on 29.8.1991. The
summons of the suit had not been served
upon the tenant until 3.1.1992 when he
deposited the rent from October 1991 to
March, 1992 under Section 30 in Misc.
Case No.66 of 1991. After service of
summons of the suit the tenant deposited
the amount of tax and costs etc in the suit
on 29.2.1992 after adjusting the amounts
deposited by him as rent under Section 30
of the Act. There is no dispute that if the
amounts deposited by the tenant in Misc.
Cases under Section 30 of the Act are
taken to be valid deposit then the tenant
can not be termed as defaulter or atleast
he will be entitled to the benefit of
Section 20 (4) of the Act. The argument
of the learned counsel for landlord that
interest was not deposited is not tenable
as u/s 20 (4) of the Act only arrears of tax,
costs and counsel's fees was deposited
and not rent as it had already been
deposited u/s 30 of the Act.

6. In my opinion after refusal of the
rent by landlord sent through money order
dated 23.8.1991 the tenant was entitled to
deposit the same under Section 30 of the
Act even though he remitted the rent
through money order after one month
from the date of receipt of notice. Even
after expiry of one month's period from
the receipt of notice liability to pay rent
continued. If the landlord refused the rent
after expiry of period of one month from
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256 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
the receipt of notice he lost his right to
file suit for ejectment on the ground of
default. In this regard reference may be
made to A.I.R. 2002 S.C. 562. In this
authority Supreme Court has held that if
the rent is accepted by the landlord even
after expiry of period of notice then he
cannot file suit for ejectment, as on the
date of suit tenant is not defaulter.

7. The effect of refusal of money
order by landlord of arrears of rent sent by
tenant was considered in a Full Bench of
this Court reported in Indrasani Vs. Din
Ilahi 1968 A.W.R. 167 (Full Bench). In
the Full Bench decision of Gorkaran
Singh Vs. Ist A.D.J., Hardoi reported in
2000 (1) A.R.C. 653 the earlier Full Bench
decision in Indrasani's case has been
approved and in para-18 of the latter Full
Bench the following passages from the
earlier Full bench have been quoted:-

"A tenant can be said to be in
arrears of rent only when by non
performance of his legal obligations he
has deprived the lessor of the benefit of
the accrued rent."............"We may point
out that there is a clear distinction
between a case in which the tenant is in
arrears of rent and a case in the rent is in
arrears. In the former case arrears of
rent are the consequence of the default
committed by the tenant in paying rent, in
the latter case the arrears of rent may be
due to causes attributable to be improper
conduct of the landlord in refusing to
accept rent lawfully tendered to him.
Where such is the case and arrears of rent
are due to reasons beyond the control of
the tenant, the Courts will give a
beneficial construction to the provisions
of the Act keeping in view aims and
objects to fulfill which it was enacted."

8. In view of the above Full bench
pronouncement after the refusal of money
order by landlord on 23.8.1991 rent was
in arrears but the tenant was not in arrears
of rent.

9. The matter may be looked from
another angle also. Rent sent through
money order was refused by the landlord
on 23.8.1991 hence tenant was entitled to
deposit the same under Section 30. The
tenant deposited the rent under Section 30
on 19.9.1991 and 3.1.1992. Even though
suit for ejectment had been filed prior to
19.9.1991 (i.e. on 29.8.1991) however,
tenant was not aware of the filing of suit
for ejectment hence deposits made by him
under Section 30 on 19.9.1991 and
3.1.1992 amount to payment to the
landlord under section 30 (6) of the Act.
The tenant was not therefore a defaulter
regarding that rent and not required to
deposit the same again under Section
20(4) of the Act.

10. The revisional court further held
that the deposits made by the tenant in
first two Misc. cases under section 30 of
the Act (Misc. case No. 43 of 1980 and
Misc. case No. 8 of 1985) were also not
valid. As the trial court had not
considered the said question hence it was
proper for the revisional court to remand
the matter to the trial court to consider the
validity of deposit made in both the
aforesaid Misc. cases. However, no useful
purpose will be served by remanding the
matter on this account to the trial court as
in my opinion the suit was liable to be
decreed on the ground of constructions
made by the tenant in the building as
discussed hereinafter.

11. The tenant admitted and the
courts below found that tenant had made
http://www.allahabadhighcourt.nic.in
1 All] Nand Kishore and others V. Deputy. Director of Consolidation, Basti and others 257
some constructions by erecting iron
angles and concrete pillars. The trial court
has also recorded a finding that the tenant
on the chabutra in front of the shop had
constructed a wooden shop and after
constructing a chabutra in the path way
had covered it by tin shed, which was
placed upon concrete pillars and angle
irons. Constructing a wooden shop or
placing a tin on the existing walls may not
amount to such changes as are mentioned
in section 20(2)(c) of the Act. However
constructing concrete pillars and placing
tin shed thereupon does amount to such
structural change. Finding has been
recorded that the changes affected and
constructions made by the tenant have
blocked the shop in dispute and path way
has also been narrowed. The constructions
therefore disfigured the shop in dispute.
In this regard reference may be made to
1988 (2) ARC 243 (S.C). In the said
authority tin shed had been fixed on pucca
pillars.

12. Accordingly I hold that the suit
of the plaintiff landlord was liable to be
decreed on the ground mentioned in
section 20(2)(c) of U.P. Act No.13 of
1972.

13. The authorities reported in 1990
(1) ARC 114 and 1991(1)ARC 557
regarding material alteration have not
taken into consideration the authority of
the Supreme Court reported in 1988 (2)
ARC 243 (supra). The facts in the
authority reported in 1990(2) ARC 460
were different from the facts of the instant
case. In the said authority construction
was supported on poles embedded in
ground. In the said authority concrete
pillars had not been constructed.

14. Various authorities have been
cited by both the sides regarding validity
of deposit u/s 30 of the Act. In all these
authorities it has been held that it is only
valid deposit, which can amount to
payment to landlord.

15. Accordingly writ petition is
dismissed.

16. However tenant petitioner is
granted time till 15.9.2004 to vacate
provided that within one month from
today he files an undertaking before the
prescribed authority to the effect that on
or before 15.9.2004 he will willingly
vacate and handover the possession of the
property in dispute to the landlord. Within
one month from today tenant petitioner
shall also pay all the arrears of rent due
till 15.9.2004 after adjusting the amount
already deposited by him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2004

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 3947 of 1996

Nand Kishore and others
...Petitioner
Versus
Deputy Director of Consolidation, Basti
and others

 ...Respondents

Counsel for the Petitioners:
Sri Tripathi B.G. Bhai
Sri Ram Sagar Chaudhery
Sri P.C. Singh

Counsel for the Respondents:
Sri P.N. Singh
Sri A.K. Singh
Sri U.N. Pandey
S.C.
http://www.allahabadhighcourt.nic.in