# UMESH CHAND GANDHI v. 1 ST ADDL. DIST. AND SESSIONS JUDGE AND ANR

- **Citation:** [1993] Supp. 2 S.C.R. 514
- **Court:** Supreme Court of India
- **Decided:** 1993-09-23
- **Case number:** Civil Misc. Writ Petition No. 9296 of 1979
- **Bench:** K. Ramaswamy, N.P. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/umesh-chand-gandhi-v-1-st-addl-dist-and-sessions-judge-and-anr-12194
- **Pages:** 6

## Headnote

U.P. (Urban Building Regulation of Letting Rent and Eviction) Act,
(
1972-Section 39--Deposit made by tenant falling short of the amount required to be deposited-Applicability of the principle of substantial comc plia11ce/de minimus non curet lex.
Section 39 of the U.P. (Urban Building Regulation or Letting Rent
and Eviction) Act, 1972 conferred right on the tenant to absolve the default
by depositing the arrears, interest accrued thereon, and full costs of the
suit within one month from the date of commencement or the Act.
D
The respondent landlord initiated proceedings in the court of Small
Causes for ejectment of the Appellant/tenant on the ground of default.
Due to an error in the calculation there was a short fall in making
E the deposit. The Trial Court decreed ejectment. The Dist. Judge, in
revision, held that the appellant had substantially complied with Section
39 and the shortfall in deposit was due to bonafide mistake in calculation.
The landlord filed a writ petition before the High Court. A Single Judge
referred the matter to the Division Bench for decision on the question as
to whether the Court had the jurisdiction to go into the question of
F bonafide mistake of calculation or substantial compliance. The Division
Bench held that the tenant would not be entitled to get the benefit of the
rule de minimus. Basing on this finding, the Single Judge allowed the Writ
petition, set aside the order of the appellate authority and granted decree
of eviction.
G
Disposing of the appeal, by special leave, preferred by the tenant,
this Court
HEt'D : 1.1. Section 39 of the UP (Urban Building Regulation of
Letting Rent and Eviction) Act, 1972 confers right on the tenant to absolve
H his default and save his tenancy P,rovided he complied with the conditions
' 514
•
GANDHI v. SESSIONS JUDGE
515
prescribed therein, namely, deposit of arrears into the court made within A
one month from the date of the commencement of the Act or from the date
of his knowledge of pendency of the suit whichever is later. (517-E]
1.2. The theory of substantial compliance is not a compliance of S.39.
But when there is a bonafide mistake in calculation, the burden is on the
tenant to establ' sh by adducing evidence, regarding the bonafides in comB
mitting mistake. If the Court is satisfied that the tenant committed
bonafide mistake in computation of the three components referred to in
Sec.39 or anyone and there is a default in compliance thereof, if the amount
in deficit is small, it would ignore the said mistake applying de minimus
principle and refuse decree for eviction. The mistake in calculation must C
be due to the above bonafide mistake. [517-G-H; 518-A]
1.3 It is settled law ~t the courts of justice generally do not take
trifling and immaterial matters into account except under peculiar circumstances. The strictness or harshness or inflexibility would lead to
injustice or miscarriage of justice. Therefore, in working out equities, the D
court would apply in general the maxim "de minimis non curet lex". (518-B]
1.4 Bona fide mistake may occur in myriad circumstances but it
depends upon each case. Neither rigid nor exhaustive nor inflexible rule
could be laid cutting its amplitude into mathematical formula, in which
even also it would lead to miscarriage of justice or injustice. The division E
bench has rightly left the question to the discretion of the courts ander the
Act to consider in each case in the given facts and circumstances whether
non-compliance was bona fide and trifle, and then' to grant relief accordingly, [518-D]
1.5. There is no justification to put the compliance of Se.c. 39 in
straight jacket formula. Each case has to be con'sidered on its own facts
and'it is for the courts below to consider and decide on the basis of factual
matrix. [518-E]
F

## Text

A
UMESH CHAND GANDHI
v.
1 ST ADDL. DIST. AND SESSIONS JUDGE AND ANR.
SEPTEMBER 23, 1993
B
[K. RAMASWAMY AND N.P. SINGH, JJ.)
U.P. (Urban Building Regulation of Letting Rent and Eviction) Act,
(
1972-Section 39--Deposit made by tenant falling short of the amount required to be deposited-Applicability of the principle of substantial comc plia11ce/de minimus non curet lex.
Section 39 of the U.P. (Urban Building Regulation or Letting Rent
and Eviction) Act, 1972 conferred right on the tenant to absolve the default
by depositing the arrears, interest accrued thereon, and full costs of the
suit within one month from the date of commencement or the Act.
D
The respondent landlord initiated proceedings in the court of Small
Causes for ejectment of the Appellant/tenant on the ground of default.
Due to an error in the calculation there was a short fall in making
E the deposit. The Trial Court decreed ejectment. The Dist. Judge, in
revision, held that the appellant had substantially complied with Section
39 and the shortfall in deposit was due to bonafide mistake in calculation.
The landlord filed a writ petition before the High Court. A Single Judge
referred the matter to the Division Bench for decision on the question as
to whether the Court had the jurisdiction to go into the question of
F bonafide mistake of calculation or substantial compliance. The Division
Bench held that the tenant would not be entitled to get the benefit of the
rule de minimus. Basing on this finding, the Single Judge allowed the Writ
petition, set aside the order of the appellate authority and granted decree
of eviction.
G
Disposing of the appeal, by special leave, preferred by the tenant,
this Court
HEt'D : 1.1. Section 39 of the UP (Urban Building Regulation of
Letting Rent and Eviction) Act, 1972 confers right on the tenant to absolve
H his default and save his tenancy P,rovided he complied with the conditions
' 514
•
GANDHI v. SESSIONS JUDGE
515
prescribed therein, namely, deposit of arrears into the court made within A
one month from the date of the commencement of the Act or from the date
of his knowledge of pendency of the suit whichever is later. (517-E]
1.2. The theory of substantial compliance is not a compliance of S.39.
But when there is a bonafide mistake in calculation, the burden is on the
tenant to establ' sh by adducing evidence, regarding the bonafides in comB
mitting mistake. If the Court is satisfied that the tenant committed
bonafide mistake in computation of the three components referred to in
Sec.39 or anyone and there is a default in compliance thereof, if the amount
in deficit is small, it would ignore the said mistake applying de minimus
principle and refuse decree for eviction. The mistake in calculation must C
be due to the above bonafide mistake. [517-G-H; 518-A]
1.3 It is settled law ~t the courts of justice generally do not take
trifling and immaterial matters into account except under peculiar circumstances. The strictness or harshness or inflexibility would lead to
injustice or miscarriage of justice. Therefore, in working out equities, the D
court would apply in general the maxim "de minimis non curet lex". (518-B]
1.4 Bona fide mistake may occur in myriad circumstances but it
depends upon each case. Neither rigid nor exhaustive nor inflexible rule
could be laid cutting its amplitude into mathematical formula, in which
even also it would lead to miscarriage of justice or injustice. The division E
bench has rightly left the question to the discretion of the courts ander the
Act to consider in each case in the given facts and circumstances whether
non-compliance was bona fide and trifle, and then' to grant relief accordingly, [518-D]
1.5. There is no justification to put the compliance of Se.c. 39 in
straight jacket formula. Each case has to be con'sidered on its own facts
and'it is for the courts below to consider and decide on the basis of factual
matrix. [518-E]
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3425 of G
1983.
From the Judgment and Order dated 11-11-82 of the Allahabad High
Court in Civil Misc. Writ Petition No. 9296 of 1979.
Joseph Vellapally and D .K. Garg for the Appellant.
H
516
SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A
Satish Chandra and Yijay Kumar for the Respondents.
B
c
The following Order of the Court was deliwrcd :
The appellant/tenant had the demised premises on a monthly rent of
Rs. 40 from Ram Lal, the landlord. Ram Lal initiated action for ejectment
of the appellant in the Court of the Small Cause (District Munsif), Saharanpur under the U.P. (Temporary Control of Rent and Eviction) Act, 1947.
Pending proceedings this Act was repealed and U.P. (Urban Building
Regulation of Letting Rent and Eviction) Act, 1972, for short 'the Act'
came into force w.e.f. July 15, 1972. Section 39 permitted the appellant to
deposit the arrears, interest accrued thereon and full costs of the suit within
one month from the date of the commencement of the Act. As on date a
sum of Rs. 2,048 was due. Due to error in calculation a sum of Rs. 1,944
was deposited within one month leaving a deficit of Rs. 104. The Trial
Court decreed ejectment, but on revision, the Dist. Judge held that the
D appellant had substar1tially complied with s.39. A sum of Rs. 104 was not
deposited due to bonafide mistake of calculation. Though alternative
remedy was available, Ram Lal instead filed a writ petition in the High
Court under Art. 227 in Civil Misc. Suit Petition No. 9296/79. When the
matter came up before the learned Single Judge, the respondent restricted
E
his case to three contentions, namely: (1) When the tenant committee
default in deposit of the full amount within one month as enjoined under
s.39, whether the court has jurisdiction to go into the question of bona fide
mistake of calculation; or substantial compliance; (2) whether the tenant
should not be treated as a defaulter; and (3) whether the finding of the
F
courts below that the short fall in the deposit made by the tenant was
caused by a bona fide mistake of calculation is manifestly unsustainable.
The learned Single Judge answered the latter two questions against Ram
Lal but on the first question since there was a conflict of decisions, for its
resolution referred the matter to the division bench which by its order
dated September 10, 1982 held that "if the deposit made by a tenant falls
G short of the amount or amounts required to be deposited under s.39, the
tenant would not be entitled to the principle of wbstantial compliance for
the benefit of s.39." The court applying the principle of de minimis non
curat lex held thus "if the amount is found to be small, which has no
consequence, the court would be justified in ignoring the said mistake by
H extending the de minimis rule to such a case. As to what is a case deserving
GANDHI v. SESSIONS JUDGE
517•
the benefit of the aforesaid rule is a question of fact to be decided in each A
case for which no rigid and exhaustive law can be laid down ...... In a case
of de minimis, the Court ignores the short fall and extends the benefit
contemplated by s.39 to the defaulting tenant. It will not grant any decree
of the amount short deposited. The defence of substantial compliance does
not absolve the tenant of his liability to pay the entire amount". It further B
held that whether the mistake to calculate arrears could have no consequence at all and same cannot be regarded as false or misleading in a
material respect and hence a tenant is required to prove his bona fide by
bringing evidence of the reason, e.g. clerical mistake in calculation etc. for
getting the advantage of the rule of de minimis. On the facts in this case,
the division bench concluded that "we have noted that the total amount C
which the tenant was required to deposit was Rs. 1,944 (Rs. 2,048) and
there was a deficiency of Rs. 104. The amount of Rs. 104 was not a small
sum which could qualify the requirement of getting the benefit of rule. of
de minimis." On receipt of the finding on reference the learned Sing!~
Judge by the impugned judgment dated November 11, 1982 allowed the D
writ petition, set aside the order of the appellate authority and granted
decree of eviction. Thus this appeal by special leave.
1.01 Section 39 confers right on the tenant to absolve his default and
save his tenancy provided he complied with the conditions prescribed
therein, namely, deposit of arrears into the court should be made within E
one month from. the date of the commencement of the Act or from the
date of his knowledge of pendency of the suit whichever is later : (1) the
entire amount of rent and damages for use and occupation; (2) with
interest @ 9 per cent annum; and (3) the landlord's full cost of the suit.
On compliance thereof the court is enjoined not to grant decree for
p
eviction except on any other grounds mentioned in proviso to sub-s.(1) or
in Clauses (b) to (g) of sub-s.(2) of S.20. Thus s.39 gives further opportunity to the defaulting tenant to tender into the court of the aforesaid sum
to save his tenancy within the time envisaged therein lest he would be liable
to ejectment. Therefore, the division bench has rightly pointed out that the
theory of substantial compliance is not a compliance of s.39. But when G
there is a bona fide mistake in calculation; the burden is on the tenant to
establish by adduction of evidence his bona fides in committing the mistake.
On the Court's satisfying that the tenant committed bona fide mistake in
computation of the three components referred to earlier or anyone and
there is a default in compliance thereof, if the amount fa deficit is small, H
518
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A court would ignore the said mistake applying de minimis principle and
refuse decree for eviction. Therefore, the tenant has to act in good faith.
The mistake in calculation must be due to the above bona fide mistake. It
is settled law that the courts of justice generally do not take trifling and
immaterial matters into account except under peculiar circumstances. The
B strictness or harshness or inflexibility would lead to injustice or miscarriage
of justice. Therefore, in working out equities, the court would apply in
general the maxim "de minimis non curat lex''. The division bench, therefore, rightly pointed out that the doctrine deserves extension giving the
benefit to the tenant out it is a question of fact to be decide in each case.
Bona fide mistake may occur in myriad circumstances but it depends upon
C each case. Neither rigid nor exhaustive nor inflexible rule could be laid
cutting it amplitude into mathematical formula, in which event also it would
lead to miscarriage of justice or injustice. Accordingly we find that the
division bench has rightly left the question to the discretion of the Courts
under the Act to consider in each case in the given facts and circumstances
D whether non-compliance was bona fide and was a trifle, and then to grant
relief accordingly.
Though the learned counsel for the appellant sought to contend that
the case would require consideration at the hands of this Court, we find
no justification to put the compliance of s.39 in a straight jacket formula.
E Each case has to be considered on its own facts and it is for the courts
below to consider and decide on the basis of factual matrix. In this case
the High Court found that 'a deficit of Rs.104 is not a trifle. In the facts
and circumstances, it calls for no interference by this court. The Appellant
has been in possession of the demised premises for commercial use as a
F
shop. It is agreed by the parties across the bar that the appellant be given
two years time from today for use and occupation of the demised premises.
We approve of the consensus. The appellant shall pay the market rent from
October 1, 1993. The learned Dist. Munsiff is directed to determine the
prevailing market rent within a period of two months from the date of
receipt of this order. On such determination the appellant shall pay the
G same without taking any further judicial remedy of an appeal, a revision or
a writ petition under Art.226 of the Constitution. He should pay the arrears
within one month from the date of the determination of the market rent to
the respondent against receipt or on his refusal to deposit the amount to
the credit of the suit till he vacates the premises. The present rent shall be
H continued to be paid till the date of determination of the inarket rent.
GANDHI v. SESSIONS JUDGE
519
Arrears, if any, as on date shall also be deposited within a period of two A
months from today. It there ia ny default in payment of rent for two
successive months, it is open to the respondent to have the decree executed. The appellant shall file usual undertaking in this Court within a
period of six weeks from today. The appeal is disposed of accordingly. No
costs.
B
B.V.B.
Appeal disposed of.