- (1.) LEARNED Single Judge after hearing the parties in the above noted 1st two petitions, found that there was divergence of opinion between the two Division Bench decisions of this Court ie. Lala Manohar Lal v. Vimal Kumar, 1955 AWR 395 (DB) and Wasim Khan v. Shahid Ali, 1971 (All) RCJ 867 (DB), therefore, after formulating three questions referred said petitions for decision by a Full Bench by order dated 3-1-1985, the operative por tion of which is quoted below: - "thus, the following questions would re quire consideration by larger Bench :- 1. Whether a notice of demand can be held to be invalid or mala fide on the ground that the rent had been demanded at a higher rate than the correct rate, and if so whether the tenant can be absolved form the duty of comply ing with such a notice?
(2.) IN case where the landlord had earlier been refusing to accept rent at the correct rate and had been claiming rent at higher rate and the tenant had as a consequence of landlords' earlier refusal in the past, deposited the rent in Court under Section 30 and thereafter, landlord serves a formal notice of demand again at a higher rate, whether the tenant without tender ing rent at the correct rate to the landlord has a right straight-away to deposit the same under Section 30 (1)? On which party, does the burden of proof lie in regard to the existence of arrears of rent? As these are the only questions involved in the decision of these two writ petition, it appears to me expedient to refer the whole cases to a Full Bench. Let the record be laid before Hon'ble Chief Justice for constitution of a Full Bench for the decision of these cases. " 2. As a consequence of the aforesaid order, Hon'ble the Chief Justice con stituted the Full Bench for the aforesaid purpose. In the other two petitions only above noted three questions for answers have been referred as in these petitions, besides said questions, other questions were also involved: 3. Before dealing with aforesaid three questions we consider it necessary to notice relevant facts giving rise to the fol lowing petitions as the said petitions are also required to be decided by this Bench on merit. Writ Petition No. 2575 (RC) of 1979 4. This is tenants' petition arising out of suit for ejectment and recovery of rent filed by Respondent No. 3. The Respon dent No. 3 firstly filed application under Section 21 of the UP. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972, for short "the Act". Said application was dismissed on 22- 7-76 by the Prescribed Authority. Against the said order, appeal was filed before the appel late authority. While appeal was pending, Respondent No. 3 issued notice of demand and termination of tenancy to the petitioner on 13-10-76 demanding pay ment of rent @ 40 per month from May, 72 to September 76, amounting to Rs. 2120 and vacation of the building in dispute. Said notice was delivered to the petitioner on 13-10-76. Petitioner gave reply of the said notice claiming that rate of rent was Rs. 15 per month and not Rs. 40 per month and contending that as the said respondent refused to accept the rent, the rent was deposited from 1-5-72 to 31-6-76 under Section 30 of the Act, which could be withdrawn by him. Thereafter, Respon dent No. 3 filed suit in the Court of Judge Small Causes for ejectment and recovery of rent on the ground of default and sub stantial damage to the building. The said suit was contested by the petitioner, plead ing that the rate of rent was Rs. 15 per month and not Rs. 40 as claimed by the plaintiff-respondent, that the amount of rent and refusal made by the plaintiff, was deposited in the Munsif Court under Sec tion 30 of the Act and that no damage at all was caused to the building by him. The suit was, therefore, liable to be dismissed. 5. The trial Court on the basis of the pleadings of the parties, framed four is sues. While dealing with issue No. 1, it was held that rate of rent was Rs. 15 per month and not Rs. 40. On issue No. 2 it was held that on the date of service of notice of demand, nine months rent was due, but after service of notice rent was not tendered to the landlord. The petitioner-tenant, therefore, had no right to deposit the same under Section 30 of the Act. It was also held that on the record, there was no evidence that before 1-5-72 landlord ever refused to accept the rent. Petitioner-tenant was, therefore, held to be defaulter. Issue No. 3which related to the substantial damage to the building, was decided in negative and in favour of the petitioner. Having recorded said findings the suit was decreed for ejectment and recovery of ar rears of rent, by j udgment and decree dated 16-1-79. Petitioner challenged the validity of the said decree before the Court below. The Court below also affirmed the findings recorded by the trial Court and dismissed the revision by judgment and order dated 30-8-79, hence the present petition. Writ Petition No. 132 (RC) of 1980 6. This is also a tenant's petition aris ing out of a suit for ejectment and recovery of rent. The suit was filed pleading that the petitioner was the tenant in shop No. 182, Balai Kila, District Unnao at a monthly rent of Rs. 25. He was in arrears of rent from April, 1974 to March 30,1975, there fore, notice of termination of tenancy and demand dated 10-4-75 was issued by the landlord to the petitioner, which was served upon him. The petitioner gave reply of the said notice contending that rate of rent of the shop in dispute was Rs. 15 per month. He used to pay the rent to the landlord as and when it fell due. On the date of service of notice one month's rent was already paid in advance. Thus, there was nothing due against him. Respondent No. 2, thereafter, filed SCC Suit No. 15/75, pleading that the rate of rent was Rs. 25 and since April, 74 the rent was not paid consequently a composite notice of demand and termination of tenancy was sent to the petitioner on 10-4-75, which was replied with incorrect pleas. The trial Court while dealing with issue Nos. 1 and 2 held that the rate of rent was Rs. 15 per month but the plaintiff failed to prove that the rent was due from 1-4-74. On issue Nos. 3 and 4, it was held that the shop in dispute was constructed before 8-3-66. The provisions of the Act, were, therefore, applicable to the same. It was also held that the petitioner has already paid the amount of rent etc. , therefore, he was entitled to the benefit of Section 39 of the Act, and that on the date of notice nothing was due, consequently notice of demand was bad in law. Having recorded the said findings, the suit was dismissed by judgment and decree dated 7-4-79. Challenging the validity of the said decreed Respondent No. 2 filed revision before the Court below. The Court below affirmed the findings recorded by the trial Court on the question of rate of rent. It was, however, held that the rent was paid upto 31-3- 74 and that notice of demand was valid. The Court below reversed the findings recorded by the trial Court on issues Nos. 3 and 4 and held that the deposit made by the petitioner was not sufficient to meet the requirements of Section 39, inasmuch as, on the relevant date an amount of Rs. 495 was required to be deposited; but only an amount of Rs. 376 was deposited, there fore, the petitioner was not entitled to the benefit of Section 39 of the Act. Having recorded the said findings, the revision was allowed and the suit was decreed for eject ment, recovery of rent @ Rs. 15 per month with pendente lite and future interest. Two months' time was also granted to the petitioner to vacate the shop, by judgment and order dated 20-11-79, hence the present petition. 7. We have heard learned Counsel for the parties and also carefully perused the record. 8. Learned Counsel for the petitioner-tenant submitted that notice of demand served by the landlord- contesting respondent was invalid and mala-fide as by means of the same landlord has deliberate ly demanded rent at the higher rate than the correct rate. Therefore, petitioner was absolved from the duty of complying with the said notice. It was also urged that under the facts and circumstances of the present case, as the landlord has been refusing to accept the rent, it was not necessary to tender the amount of rent to the landlord. He was at liberty to deposit the same under Section 30 of the Act even after receipt of the notice of the demand. It was also urged that burden of proof regarding the exist ence of the arrears of rent was squarely upon the landlord and not upon the tenant, Court below erred in law holding to the contrary. 9. On the other hand, learned Coun sel appearing for the landlord submitted that notice of demand served upon the tenant was quite valid, maybe at the higher rate. It was submitted that even if no amount of rent was specified in the said notice, same cannot be held to be invalid. The tenant was duty- bound to comply with the notice and to tender rent to the landlord within 30 days of the receipt of the notice, failing which he was defaulter in terms of Clause (a) of Sub-section (2) of Section 20 of the Act and was liable to ejectment from the building in question. It was asserted that even if the landlord was not accepting the rent tendered by the petitioner, after receipt of the notice the rent was to be tendered to the landlord and the petitioner had no right to deposit the same under Section 30 of the Act and that burden of proof regarding payment of rent, if any, was upon the petitioner/tenant. Learned Counsel ap pearing for the contesting respondent also urged that the Courts below have held that the rent was never refused before or after service of notice of demand, there fore, the petitioner had no right to deposit the same under Section 30 of the Act. He was defaulter and was not entitled to any relief. 10. We have considered the submis sions made by learned Counsel for the parties and also persued the record. Question No. 1 11. The tenants of Urban Buildings before the enforcement of U. P. (Tem porary) Control of Rent and Eviction Act, 1947 (U. P. Act No. 3 of 47), were at the mercy of the landlords. They used to oc cupy the said building, till the landlord was pleaded to permit them. Rights of the parties used to be governed by the provisions of Transfer of Property Act. Under the provisions of the said Act, a landlord was legally entitled to terminate the tenancy of his tenant at his sweet will and without any rhyme or reason and to evict him at any time. Tenant had no option but to vacate the building in his occupation. 15 avoid the sufferings of tenants, said Act was enacted, which was in the nature of Social Welfare Legislation, with a view to provide protection to the tenant against arbitrary increase of the rent and their eviction from the urban buildings and simultaneously permitting the landlords to re-occupy a building for his own use when the same became vacant or by eviction of a sitting tenant on specified grounds and in accordance with the proce dure prescribed for the same. Said Act was temporary in nature. Its life used to be extended from time to time. It was in the year 1972 that U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (U. P. Act No. 13 of 1972), was enacted with the object to regulate letting and rent of urban buildings and eviction of tenant therefrom. Section 20of the said Act has imposed ban on the landlords' right to institute suit for evic tion of his tenant from the building, except on the grounds specified in Sub-section (2) of said section. Section 20 of the Act provides as under :- (Only Relevant quoted) "20. Bar of Suit for eviction of tenant except on specified grounds- (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, not withstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant. (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the follow ing grounds, namely: (a) That the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand : Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year". 12. From a reading of the aforesaid section, it is apparent that said section restricts the rights of landlord to file suit for eviction of his tenant after termination of tenancy on any one or more grounds enumerated therein. For filling a suit for ejectment and recovery of arrears of rent on the strength of clause (a) of Sub-section (2) of Section 3 of the Act (on the ground of default) after determination of tenan cy, the landlord will have to plead and prove that (1) the tenant was in arrears of rent not less than 4 months (in relation to a tenant who is a member of armed forces of Union, one year), (2) he was served with a notice of demand and (3) that he failed to pay the demanded rent from him within one month of the service of notice. Said three conditions are co extensive and inseparable. To succeed in the suit filed on the ground of default, all the three conditions will have to be proved, besides the factum of termination of tenancy in accordance with Law. In the Act or Rules framed thereunder proforma of notice of demand has not been prescribed. 13. Before proceeding further, we will have to see as to what is meant by term 'arrears of rent' as used in clause (a) of Sub- section (2) of Section 20 of the Act. Under the Act or the Rules framed thereunder, term 'rent' has not been defined. Therefore, it must be held to have been used in its ordinary dictionary meaning. Term 'rent' is comprehensive enough, to include all payments agreed by the tenant to be paid to his landlord for the used and occupation not only of the building and its appurtenances but also of furnishes, electricity installation and other amenities agreed between the par ties to be provided by and at the cost of the landlord, as held by the Apex Court while dealing with a case under West Bengal Premises (Rent Control) Tem porary Provision Act, 1950, the provisions of which are analogous to the provisions of the Act, In Kamani Properties Ltd. , AIR 1957 SC 309. The rent may be agreed rent or standard rent in view of provisions of Section 4 (2) of the Act. 14. Section 105 of the Transfer of Property Act is also relevant for this pur pose which provides as under:- "105. Lease defined.-A lease of immov able property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity in consideration of a price paid or promised or of money, share of crops, service or any other thing of value to be rendered periodically or on specified occasions of the transferer by the transferee who accepts the transfer on such terms. " "lessor, lessee, premium and rent defined-The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, sha:o, service or other thing to be so rendered is called the rent. " 15. In terms of Section 105 of the Transfer of Property Act money share of Crops, Service and any other things value to be rendered periodically 01; on specified occasion to the transferor (lessor) by transferee (lessee) may come within the definition of rent but in our opinion, for the purposes of Section 20 of the Act, rent should be in terms of money only and in any view of the matter, it cannot be the service, otherwise the tenant after receipt of notice of demand, inspite of his willing ness to comply it, will not be able to comp ly. For example a landlord lets out house to a tenant on the condition that he will every day clean the building in occupation of the landlord or to render any other service. The tenant for some reasons or the other fails to render the said service continuous ly for a period of 4 months, thereafter the landlord serves a notice of demand on him. It will be impossible for the tenant, even if he wishes to do so, to render the service of four months in one month. Any inter pretation of the term 'rent' used in Section 20 of the Act to the contrary will render several statutory provisions unworkable and inoperative particularly of Sections 8,9, 9-A, 10,20 (2) (a), (4), 29 (5) (6), 30 and 39 of the Act, Order XV Rule 5 CPC (as amended by U. P State) and of the proviso to Sub-sec tion (1) of Section 17 of the Small Cause Courts Act. While dealing with the cases under the Act, the view expressed to the contrary in some of the decisions of this Court importing the concept of 'rent' as given by Transfer of Property Act for the purpose of the Act, is not correct. 16. In Jitendra Prasad v. Mathura Prasad Darzi, 1960 ALJ 211, it was held that the words 'for more than three months' qualified words 'rent' and not words 'is in arrear'. On the same analogy, it can be said that words 'for not less than four months' qualified word 'rent' and not words 'is in arrears'. Thus, a tenant who has run into the arrears of rent for a period of four months, is liable to be ejected by the landlord, if he fails to pay the amount of arrears of rent within thirty days of the receipt of the notice of demand. In Indrasani v. Din Ilahi, 1968 AWC167 (FB), it was ruled by a Full Bench of this Court as under :- ". . . . . . . . . . . A tenant can be said to be in ar rears of rent only when by non- performance of his legal obligation 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 which the rent is in arrears. In the former case arrears of rent are the consequence of the default com mitted by the tenant in paying rent, in the latter case the arrears of rent may be due to causes attributable to the 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 fulfil which it was enacted. " 17. We respectfully agree with the view expressed in the above noted case. 18. A landlord by means of the notice of demand, may deliberately or otherwise, demand arrears of rent at the higher rate than agreed between the parties or determined by the competent authority. He may also demand rent at a lower rate. There may also be a notice of demand of rent, simply specifying period for what rent is due without mentioning the amount of rent or may ask for payment of rent whatever is due. The question is as to whether such notices would be valid or invalid. In Manohar Lal's case (supra) it was ruled that notice of demand even if it raises demand at the higher rate than agreed rate, shall be valid and that the tenant, on receipt of notice would be at liberty to tender rent at the rate which is admitted to him, within statutory period of 30 days, to escape his liability of ejectment on the ground of default. In the said case it was ruled/as under :- "there appears to us, therefore, no par ticular reason why the notice of demand must in order to be a valid notice contain such amount of the arrears of rent as be ultimately admitted by the tenant to be correct or be ultimate found by the Court to be correct on the contention of the defendant. The tenant is called upon to pay the arrears of rent which in the first instance, means the amount mentioned in the notice. If the tenant does not admit the correctness of that amount and does not like to pay the full amount, there seems to be no reason why he should not pay at least such amount as he considers to be due if he makes such a payment he safeguards his position and the fault would be entirely the landlords if he goes to Court seeking eviction of the tenant. He will fail in his suit if the tenant succeeds in satisfying the Court that he had paid up the arrears of rent due even though the demand was for larger amount. The plaintiff will succeed if the tenant fails to establish that and the plaintiff succeeds in establishing that inspite of what the tenant had paid some amount of arrears of rent still remained due after one month of the service of notice. There seems to be no good reason why the simple expression "notice of demand" whose main purpose must be to warn the tenant that he has overlooked paying rent and should pay it should be inter preted so strictly as the term "demand" is inter preted under the common law of England that the notice of demand means a notice of demand for the precise amount ultimately found due at the time of the notice was given. If the legisla ture intended the notice of demand to be so precise and any defect in the notice to be so vital to the interest of the landlord, it could have very easily used a clearer language in clause (a) to indicate its intention. It has been urged that the TJ. P. (Temporary) Control of Rent and Eviction Act was enacted for the benefit of the tenants as the preamable shows that the Act was to provide for preventing the eviction of tenants during as limited period and that its provisions be. liberally inter preted. Under the general law, the landlord is free to be terminate the tenancy of his tenant by a notice conforming to the requirements of Section 106 of the Transfer of Property Act. His general right was respected for a limited period by this Act, and there is no reason why the restriction placed should be interpreted in favour of the tenant even if the language has to be stretched. The restrictions have to be interpreted in a normal manner. Interpreting clause (a), Sub- section (1) of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. We are of the opinion that it is not necessary for the validity of a notice of demand that the amount of arrears of rent mentioned in it should be the exact amount found due on the date of the notice by the Court in case the amount is contested on behalf of the contending defendant. " 19. Similar view, thereafter, taken by several Division Benches of this Court, reference in this regard may be made to the decision in Ram Pratap v. Panna Lal, 1956 ALJ 787 (DB), Bishun Chandra Saxena v. Sushil Chandra Verma, 1960 ALJ 70 (DB) and Jagat Narain Mehra v. Madan Lal, 1961 ALJ 442 (DB ). 20. In Parvati v. Babu Lal, 1965 AU 266, it was ruled that notice of demand either raising demand of exaggerated amount or where no amount is men tioned is a good notice, but a notice which demands smaller amount than the amount actually in arrears is not a notice contemplated under Clause (a) of Sec tion 20 (2 ). In the following cases this Court has taken the view that even if no amount is mentioned or lesser amount of rent is mentioned, notice cannot be said to be invalid. Bishun Chandra Saxena v. Sushil Chandra Verma, 1960 ALJ 70 (DB), Bachchan Lai v. Ram Asre, 1960 ALJ 147, Jagat Narain Mehra v. Madan Lal, 1961 AWR 359 (DB) and Kishanlal Singhania v. D. J. Kanpur, 1990 (1) ARC 586. 21. Even the Apex Court has taken the view that a notice of demand cannot be said bad because by mistake or otherwise more amount of rent was demanded. Ref erence in this regard may be made to the decision in CA No. 387/1964 decided on 5-4-66 Raghunath v. Anant Narain, reference of which has been given in Tayyab Ali v. Ahsan & Co. , AIR 1971sc102. In para 4 of the said judgment, it was observed as under:- "it has been contended before us on be half of the landlord that the view of the appeal Court on the effect of an excessive demand having been made in the notice was altogether erroneous. In Civil Appeal No. 387 of 1964, D/5-4-1966 (SC) Raghunath Rajiv Dandekar v. Anant Narayan Patel, this Court laid down that a notice to quit under the Transfer of Property Act would not be bad because by mistake or over sight more was demanded in the notice under Section 12 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act LVII OF 1947), hereinafter called the Act than was due. " 22. We may point out another reason for holding that notice raising demand at the higher rate than agreed between the parties or mentioning no amount is a good notice. It is that even if landlord demands rent at the correct rate agreed between the parties, there is no prohibition or bar on the tenant not to dispute the rate of rent. The tenants who happen to be the bad pay masters, habitual defaulters and who are not inclined to pay the rent, can always dispute amount and rate of rent, they nor mally plead that rate of rent demanded by landlord was wrong they have regularly been paying the rent and nothing was due against them. In that event, the dispute with regard to the rate of rent is to be decided by the Court after hearing the parties on the basis of the evidence on the record. If it is found that amount demanded by the landlord was incorrect the suit is bound to fail and no prejudice is to be caused to the tenant. But if the plea taken by the tenant is found to be false and incorrect, he will suffer the consequence in the form of ejectment from the building in his tenancy. Therefore, in the above noted decisions, this Court was right in holding that the notice where by exaggerated amount of rent was demanded or where no amount or lesser amount of rent is men tioned, was a valid notice but in case tenant did not want to comply with the said notices, it was ruled that he was bound to remit or pay the amount of rent at the rate admitted to him, if he wanted to save his tenancy, in view of provisions of Clauses (1) of Section 108 (B) of the Transfer of Property Act & Sections 37, 38 and 46 of the Contract Act, which are applicable, being the General Law in regard to landlord and tenant, and not provided for in the Act specifically, to the contrary. The view taken in all aforesaid decisions seems to be quite reasonable. We, therefore, agree with the approve the aforesaid decisions rendered by the Division Bench and Single Judges of this Court. 23. So far as the decision in Wasim Khan v. Shahid Ali, 1971 (All) RCJ 867, is concerned, it was a case dealt with and decided in accordance with the provisions of U. P. (Temporary) Control of Rent and Evic tion Act, 1947. Clause (a) of sub-section (1) of Section 3 of the said Act reads as under :- "3. Restriction of Evictions.-Subject to any order passed under Sub-section (3), no suit shall, without 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 grounds; " (a) Tenant is in arrears of rent for more than three months and has wilfully failed to pay the same to the landlord, within one month of the service upon him of the notice of demand. " 24. In the said case, the landlord claimed rent @ Rs. 25 per month while tenant contended that rate of rent was Rs. 6 per month It was not disputed that Rent Control & Eviction Officer has fixed rate of rent at Rs. 6 p. m. The trial Court held that the rate of rent fixed by the Rent Control and Eviction Officer, was Rs. 6 per month but even the said amount was not tendered by the tenant after receipt of the notice of demand. Therefore, he was held to be defaulter and the suit was decreed by the trial Court. Appeal filed by the tenant against the decree passed by the trial Court was also dismissed, thereafter. Second ap peal was filed. In the Second appeal, ques tion arose as to whether, under the facts and circumstances of the case, provisions of Section 3 (l) (a) of the U. P. Act No. Ill of 1947 were attracted and as to whether the appellant was liable to be ejected. It ap pears that the attention of the Division Benches in the said case was not drawn to the decisions of this Court referred! to above. It, therefore, relied upon the decision of other High Courts, and came to the conclusion that the notice of demand was invalid. The said decision has been rendered in ignorance of the aforesaid decisions, which unless dissented form were binding upon the Division Bench, same is, thus, per incuriam and we, there fore, over-rule the same. Question No. 2 25. So far as the question of deposit ing rent after refusal by the landlord on the correct rate of rent or otherwise, is con cerned the Sub-section (1) of Section 30 of the Act is relevant for the said purposes, which provides as under :- 30. Deposit of rent in Court in certain cir cumstances- (1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such build ing until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. " 26. From a reading of the aforesaid, provision, it is clear that refusal to accept the rent from a tenant by the landlord, his tenant is entitled to deposit the amount of rent in the Court. Under the aforesaid provision the tenant is entitled to continue to deposit the said rent after the same is refused by the landlord till landlord ex presses his willingness to accept the same. In Indrasani's case (supra), it has been ruled by a Full Bench of this Court that if rent tendered by the tenant covers specified period and the same is refused by the landlord, the amount of rent so tendered, shall be deemed to have been paid to the landlord. Tenant, thereafter is at liberty to deposit the same in the Court. Even if said rent is not deposited in the Court, said tenant cannot be held to be a defaulter in respect of the said period. It has also been held that on receipt of notice if the landlord expresses willingness to accept the rent, tenant need not tender or pay the arrears of rents, which was already refused by the landlord. In the said case, it was ruled as under :- ". . . . . . . . . There can be no legal obligation on a tenant to tender the amount previously tendered but refused by the landlord, alongwith the tender for the subsequently accrued rent. Neither the transfer of Property Act, nor the Con tract Act, nor the U. P. (Temporary) Control of Rent and Eviction Act provides fat any such tender. " ". . . . . . . . . . We are of the opinion that where non payment of rent is on account of the intran sigence of the landlord to accept or receive the rent tendered to him he cannot call his own improper conduct in aid as a means to evict the tenant. We, therefore, hold that where rent due has been lawfully tendered to the landlord anr1 is improperly refused by him, the tenant cannot be held to be in arrears of rent. " "it will thus appear that a tenant who has made a valid tender of the rent which fell due, in law cannot be treated as a tenant in arrears of rent nor even can be the rent be said to be in arrears although the amount actually still remains payable to the landlord whether in the hands of the tenant or in deposit in Court. " ". . . . . . . . . On a consideration of the whole matter, we are of the opinion that the question referred to the Full Bench must be answered in tenant's favour and it must be held that where a tenant remits rent by money orders and the amount remitted covers rent for a particular month and the landlord refuses to accept the same the tenant cannot be said to be in arrears in respect of that month within the meaning of Section 3 (l) (a) of the U. P. (Temporary) Con trol of Rent and Eviction Act. " 27. In Ram Prasad v. VII Addll. Dis trict Judge, Meerut, 1992 ALJ 974, while considering the provision of Section 30 of the Act, it was held by this Court as under :- ". . . . . . It is, therefore, clear that the deposit under Section 30 (1) can be made only till the landlord has signified his willingness to accept it by notice in writing. Once the notice has been given by the landlord it is not open to the tenant to deposit the rent in Court. If the tenant deposits the rent in Court after service of notice upon him he cannot get the benefit of the said deposit. " 28. Same view has been taken by this Court consistently. Reference in this regard may be made to the decisions in Kanchan Singh v. Additional District Judge, (1986) 1 ARC 195, Vijai Kumar v. Istadj, (1988) 2 ARC 486, Pyare Lal v. IADJ, (1989) 1 ARC 169 and Alia Bwc v. IAD] Nainital, 1995 (1) ARC 385. Even the Supreme Court while considering the scope of Section 30 of the Act in Kamleshwar Singh Srivastava v. IV Addl. District Judge, Lucknow, 1987 (1) ARC 1, was pleased to rule as under:- "section 30 of the Act lays down that if a dispute or difference arise as to the entitlement of landlord to receive rent, the tenant may deposit the rent in prescribed manner and con tinue to do so in the Munsifs Court, until the landlord signifies in writing his readiness and willingness to accept the rent and if the landlord does not accept the rent it is open to the tenant to deposit the rent in Munsifs Court. Once deposit is made under Sub-section (1), the Court shall cause notice of the deposit to be served on the landlord and the amount so deposited may be withdrawn by him on an ap plication made by him to the Court. Section 30 (6) declares that if deposit is made under Sub section (1) or under Sub-section (2) of the Act in Munsifs Court, it shall be deemed that the tenant has paid the rent to the landlord. The deeming provision stipulates that if the tenant is permitted to deposit rent in Court, it will amount to payment of rent to the landlord and no decree for eviction of tenant can legally be passed on the ground of arrears of rent. " 29. In Indrasani's case (supra), it has been held that if the amount of rent at the correct rate is tendered by the tenant and the same is refused by the landlord, which covers to a particular period, tenant can not be held to be defaulter in respect there of. After refusal of the rent by the landlord, tenant is legally entitled to deposit the same in the Court under Section 30, but if thereafter, landlord serves notice of demand again at a higher rate, tenant need not tender the amount which has been deposited under Section 30 again but he will be under obligation to tender the amount of rent due at the correct or admitted rate of rent. Without tendering the said amount, the tenant will have no right to deposit the same under Section 30 of the Act. Question No. 3 30. So far as question of burden of proof with regard to the existence of ar rears of rent is concerned, provisions of evidence Act apply to the proceedings of a suit for ejectment and recovery of rent before Judge, Small Causes Court. 31. The phrase 'burden' of proof has two meanings. Burden of proof as a matter of law and pleadings and the other burden of establishing a case under Section 101 of the Evidence Act. The burden of proof as a matter of law and pleading is upon the party which comes across to get a decision on the existence of certain facts which he asserts. That burden is constant through out the trial, but the burden of proof in the sense of adducing of evidence shifts from time to time having regard to the evidence adduced by one party or the other or presumption of fact or law raised in favour of one or the other as held in K. S. Nangi v. Jata Shanker, AIR 1961 SC1474 and In Kundan Lal AIR 1961 SC 1316. In a case for ejectment on the ground of default the plaintiff is supposed to plead and prove that defendant/tenant was in arrears of rent for 4 months or more. Once,' the said burden is discharged by producing relevant and admissible evidence, oral or documentary, burden shifts to the tenant/defendant to prove that he was not in arrears of rent. Thus, both the parties are required to produce evidence. In such a case onus or proof is never permanently fixed but constantly fluctuates. When both the parties produce their evidence, the question one whom initially onus lay cease to be of much importance and Court would be perfectly at liberty to draw such reasonable inference from the evidence afforded by both the parties and thereby question of onus of proof loses its impor tance. The Court thereafter shall be at liberty to record finding on a consideration of entire evidence on the record. A refer ence in this regard may be made to the decisions of Apex Court in Ramji Dayanwala & Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2085, Ram Kishore v. Union of India, AIR 1966 SC644, Narani Bhagwant Rao Gosani Balijiwala v. Gopal Vmayak Gosavi, AIR 1960 SC 100, Prem Lal v. Arhat Kumar, 1973 (3) SCC 718, Bhika v. Ch. Singh, AIR 1959 SC 960 and Paras Nath v. Mohini Dasi, AIR 1959sc1204. 32. This Court while dealing with cases under Section 20 (2) (a) of the Act, held that where the plaintiff claims arrears of rent and where the rate of rent is dis puted by the tenant, the burden of proof of the rate of rent land arrears lies on the plaintiff. However, the burden of proof of the fact that rent was already paid or there were no arrears as claimed by plaintiff, lies on the defendant. A reference in this regard may be made to the decisions in Mahesh Chandra v. Smt. Angoori Devi, 1989 (1) ARC 540, Smt. Vijai Laxmi Gangal v. Mahendra Pratap Garg, 1985 (2) ARC 298, Sukhanand v. IV A. D. J. , Bulandshahr, 1993 (2) ARC 39 and Smt. Pushpa Kumari v. Smt. Shakuntala Shukla, 1984 (2) ARC 259. 33. Thus, the initial burden to prove that defendant was in arrears of rent at a particular rate lies on the plaintiff. Once the said burden is discharged, the burden to prove that there were no arrears of rent shifts to the defendants and, where both the parties produce evidence oral and documentary, the question of burden of proof loses its importance. In that even, the Court shall be at liberty to peruse evidence on the record and to record finding on the questions of rate and arrears of rent. 34. In view of the aforesaid discus sions, three questions referred to the Full Bench, are answered as under:- 1. A notice of demand, by which rent is demanded at higher rate than the correct rate, cannot be said to be invalid or mala fide. On receipt of such notice of demand, the tenant is not absolved form his duty to comply with the said notice. He can, how ever, tender arrears of rent at the admitted rate to the landlord. 2. If the landlord has been refusing to accept the rent at correct rate and has been claiming rent at higher rate, the tenant as a consequence of landlord's earlier refusal in past, deposited the rent in the Court under Section 30 and if thereafter landlord serves formal notice of demand again at the higher rate and expresses his willing ness to accept the rent, the tenant after receipt of notice is under an obligation to tender the rent at least at the rate admitted to him to the landlord and has got no right to straight away deposit the same under Section30 (1) of the Act. 3. Initial burden of proof with regard to the existence of arrears of rent lies upon the landlord. Once said burden is dis charged, the tenant will have to prove the payment of rent. Where the landlord and tenant both produce evidence with regard to the existence of arrfears and payment of rent, the question of burden to proof loses its importance. 35. Now coming to the decision of W. P. No. 2575 (RC) 1979 and WP. rto. 132 (RC) 1980 on merits. In the suit giving rise to Writ Petition No. 2575 (RC) 1979 as stated above, landlord demanded rent @ 40 per month from May, 72 to September, 76 amounting to Rs. 2120. Petitioner claimed that rate of rent was Rs. 15 per month and not Rs. 40 per month and that on the refusal made by the landlord, rent was deposited under Section 30 of the Act, which could be withdrawn by the landlord. The trial Court held that the rate of rent was Rs. 15 per month and not Rs. 40 per month and that on the date of service of notice nine months' rent was due. After receipt of the notice of demand, rent was not tendered to the landlord, therefore, the petitioner had no right to deposit the rent under Section 30. It was also held that before 1-5-72, landlord never refused to ac cept the rent. The petitioner was, thus, held to be defaulter. Issue No. 3 which related to the substantial damages to the building was decided in negative and in favour of the petitioner. On the aforesaid findings, the suit was decreed for ejectment and recovery of rent by judgment and decree dated 17-1-79. The revision filed by the petitioner was also dismissed by the Court below by judg ment and order dated 30- 8-79 and the find ings recorded by the trial Court was affirmed. In this case, the Courts below have recorded concurrent findings of fact against the petitioner, which are based on relevant evidence on the record and are not vitiated by any error of law or jurisdiction. In view of our answers to above noted three ques tions, the writ petition has got no merit, same is liable to be dismissed. Writ peti tion fails and is dismissed with costs. 36. In the suit giving rise to W. P. No. 132 (RC) 1980, landlord claimed that rate of rent was Rs. 25 per month and the petitioner was in arrear of rent from April, 74 to March 30, 1975. On receipt of the notice of demand, petitioner gave reply contenting that the rate of rent of the shop in dispute was Rs. 15 per month, which used to be paid to the landlord regularly and that on the date of receipt of the notice one months rent was already paid in ad vance. The trial Court held that rate of rent was Rs. 15 per month and that the plaintiff failed to prove that rent was due from 1-4-74 and the notice of demand was bad in law. While dealing with issue Nos. 3 and 4 it was held that the provisions of the Act were applicable to the shop in dispute and that the petitioner was entitled to the benefit of Section 39 as amount of rent etc. was already paid by him. Having recorded the said findings, the suit was dismissed by judgment and decree dated 7- 4-79. Ag grieved by the decree passed by the trial Court, landlord filed revision before the Court below. The Court below affirmed the findings recorded by the trial Court on the question of rate of rent and held that rent up to 31-3-74 only was paid and that the notice of demand was valid. While dealing with issue Nos. 3 and 4, it was held that amount deposited by the petitioner was inade quate the meet the requirement of Section 39 of the Act, petitioner was, therefore, not entitled to the benefit of Section 39 of the Act. Having recorded the said findings, revision was allowed and the suit was decreed for ejectment and recovery of rent @ Rs. 15 per month. The Court below have recorded concurrent findings on the question of rate of rent in favour of the petitioner, but notice of demand, as stated above, cannot be held to be invalid merely because the rent was demanded at the higher rate. The amount deposited by the petitioner has been found insufficient to meet the requirement of Section 39, he has, therefore, rightly been held not entitled to the benefit of said section. The judgment and order passed by the Court below, does not suffer from any error of law or jurisdiction. This writ petition has also got no force and same is dismissed. 37. Records of Writ Petition No. 1677 (RC) 1979 and 2800 (RC) 1979, may be returned to learned Single Judge along with the copies of judgment for decision on merits at an early date. Ordered accordingly. .;