- (1.) R. A. Sharma, J. A learned Single Judge has formulated the following question for decision by a larger Bench : "whether it is necessary for a tenant to deposit arrears of rent decreed in an earlier suit to get the benefit of sub-section (4) of Section 20 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. " This reference has been made by the learned Judge, because His Lordship was of the view that a Single Judge decision of this Court in Chhotey Lal v. Chhakki Lal, AIR 1953 All. 113, which has laid down that the words 'arrears of rent' include the decreed arrears of rent, does not lay down correct law and it requires reconsideration.
(2.) LANDLORD (respondent) filed a Suit No. 410 of 1975 for arrears of rent and ejectment of the tenant (petitioner) from the premises in dispute. This suit was decreed on 16. 7. 1975. In paragraph 3 of the writ petition and paragraph 4 of the counter affidavit, it has been stated that the said decree could not be executed due to the wrong particulars of the disputed property. The landlord thereafter filed another suit No. 244 of 1977 for ejectment, arrears of rent and mesne profits against the tenant. Although the tenant claimed to have deposited the amount for claiming the benefit under Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act), but according to the landlord he did not deposit the arrears or rent, which was decreed in the earlier suit. One of the questions which the court below was called upon to decide, was as to whether the tenant was required to deposit the arrears of rent, which were decreed in the earlier suit in order to get the benefit of sub-section (4) of Section 20 of the Act. Sub-section (1) of Section 20 prohibits filing of the suit for eviction of a tenant from a building to which the Act is applicable. Sub-section (2) of the same section, however, permits a suit for eviction of a tenant from such a building after the determination of his tenancy on any one or more of the grounds mentioned therein. One of such grounds mentioned in clause (a) of sub-section (2) of Section 20 on the basis of which a suit for eviction of a tenant can be filed is 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 of notice of demand upon him. Sub-section (4) of Section 20 of the Act, which is reproduced below relieves the tenant from eviction if he unconditionally pays or tenders to landlord or deposits in Court the entire amount of rent and damages: "20 (4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on the ground, pass an order relieving the tenant against his liability for eviction on that ground: Provided that nothing in this sub-section, shall apply in relation to a tenant who or My member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. Explanation.- For the purposes of this sub-section - (a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression "cost of the suit" includes one-half of the amount of counsel's fee taxable, for a contested suit. Every tenant is bound to pay the rent of the building in his occupation to the landlord. Court is one of the forums through which contractual/statutory obligations are enforced against a defaulting party. The Court enforces these obligations by means of a decree. As per Section 2 (2) of the Code of Civil Procedure 'decree' is a formal expression of adjudication of the rights of the parties with regard to the matter in controversy in the suit. By a decree, which a court passes, the defaulting party is required to do what it ought to have done suo moto in discharge of its contractual/statutory obligations. By such a decree neither an existing contract is substituted by another contract nor is it replaced by a decree/order of the court. A decree does not extinguish the liability of the judgment-debtor till it is satisfied and if the judgment-debtor was a defaulter in payment of rent, he cannot be said to be not in arrears of rent unless and until the amount is paid in execution of the decree. If a decree becomes unenforceable or is rendered ineffective, it is open to the concerned parties to have recourse to such other modes for enforcing the contractual/statutory obligations as may be provided by the contract or the law of the land. In Chunni Lal v. Banaspati Singh, IX ILR 23, a Division Bench of this Court has in this connection laid down as under: "the recovery of arrears of rent may be time-barred as a judgment-debtor, but the debt is not necessarily extinguished. The only effect of the decree being time-barred is that the rent is not recoverable in execution, but the debt exists nevertheless, so far as to enable the amount secured by mortgage to be recovered by suit in the civil court. " The object of the decree passed by a court in a suit for recovery of arrears of rent against a tenant is to compel him to pay rent, which he was bound to pay under the law. What is decreed is the rent and it does not become something else. The amount so decreed is the amount of rent and if it is not paid on account of decree becoming unenforceable or ineffective, the liability of the tenant to pay the rent remains in-tact and is not vanished. Sub-section (4) of Section 20 of the Act requires the tenant to pay or tender to the landlord or deposit in court "the entire amount of rent and damages for use and occupation of the building due from him" together with interest at the rate prescribed therein along with the cost. The tenant, therefore, has to pay the 'entire' amount of rent, if he wants an order from a court under Section 20 (4) of the Act relieving him against the liability for eviction on the ground of non- payment of arrears of rent. A learned Single Judge in Chhotey Lal v. Chhakki Lal, AIR 1953 All 113, has in this connection laid down as under: "the words 'arrears of rent' have no technical meaning. Rent that is not paid on the date on which it falls due becomes an arrears of rent and it remains so even though a suit is brought for its recovery and decreed. The only effect of the passing of the decree is that the cause of action is merged in the decree and that the. landlord can realise the decreed amount in a certain manner; it has not the effect of changing the arrear of rent into something other than arrear of rent. So long as the rent has not been paid, whether a decree has been passed for the same or not, it is rent in arrear. It remains 'rent' even if a decree is passed, and so long as it is not paid it is in arrear. There is no reason for thinking that the words 'arrears of rent' in Section 3 (a) mean only undecreed arrears of rent. If a tenant can be ejected on the ground of his failure to pay undecreed arrears of rent within a month of the receipt of a notice of demand, there is all the greater reason for his being ejected on the ground of his failure to pay the arrears of rent within a month of the receipt of a notice of demand in spite of a decree for the same having been passed against him. A tenant who does not pay the arrears of rent in spite of a decree having been passed against him undoubtedly stands in a weaker position than one against whom no decree has been passed. Because the landlord can realize the decreed arrears by executing the decree, he gets no licence for not paying them at all, or unless a warrant of attachment or arrest is issued against him. " In Behari Lal v. Babu Ram, 1964 ALJ 459, after referring to the case of Chootey Lal v. Chhakilal (supra) Hon'ble Satish Chandra, J. has laid down as under: "in Chunni Lal Banaspati Singh a Bench of this Court held that when a decree for rent becomes time- barred, the only effect is that the debt was not recoverable in execution: but the debt continued to exist nevertheless. It is thus clear that the passing of a decree does not extinguish the debt. The passing of a decree and its execution becoming barred by time is no discharge of the tenant's liability to pay the debt, which a rent in arrear is. In view of Section 4, Transfer of Property Act, the provisions of the Indian Contract Act are applicable supplementary to transfers based on contracts like sales, mortgages, leases. Under Section 108 (e), Transfer of Property Act, a tenant is bound to pay the rent to the lesser. Section 37, Contract Act, says that a party to a contract must perform his promise unless the performance is excused or dispensed with 'under the provisions of this Act, or of any other law. ' An obligation created by contract subsists until discharged. The discharge can be by satisfaction, rescission (Section 64, Contract Act), novation (Section 62) or assignment (Section 40), It can under the Contract Act, also be effected by the promises disposing with or remitting its performance (Section 63 Contract Act) or the contract becoming void (Section 66. Contract Act ). The 'other law' must be such as to unllify the obligation itself, e. g. , the Insolvency Acts or the Rule Damdupat under the Hindu Law (See AIR 1946 Nag 210 ). The Limitation Act is not such a law. It bars only the remedy of suit. " In Khadi Gramodyog Mandal v. Ram Chandraji, 1977 ARC 326) a learned Single Judge while considering the question as to whether "arrears of rent" includes the amount not recoverable in law in view of the Law of Limitation, held that the term 'arrears of rent' "is wide enough to include even those arrears, which could not be recovered in a court of law. " It was further held that the expression 'arrears of rent' would also include the rent for which a decree has been passed though its execution might have become time-barred, because passing of a decree does not extinguish the debt. It was accordingly laid as follows: - "clause (a) of Section 3 (1) of the 1947 Rent Control Act provided a conditional protection to the tenant. The purpose and object of clause (4) of section 20 of the 1972 Act is similar. It affords relief against liability for eviction subject to the condition that the tenant pays the entire amount of rent due from him. The word 'entire' clarifies the legislative intent that whatever amount has not been paid should be paid or deposited to enable the tenant to pray that he be relieved against liability for eviction. " The aforesaid decision of this Court in Khadi Gramodyog Mandal v. Sri Ram Chandraji has been approved by the Hon'ble Supreme Court in Khadi Gram Udyog Trust v. Ram Chandraji Virrajman Mandir, AIR 1978 SC 287, wherein it was laid down as under : "it will be seen that under Section 20 (2) of the Act, the landlord gets a cause of action for evicting the tenant when 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. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with Section 20 (2 ). The tenant can take advantage of the benefit conferred by Section 20 (4) only when he pays the entire amount of rent due as required u/s. 20 (4 ). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred by limitation. " 5, The decision of the Supreme Court in Ram Deo v. Umrao Singh, AIR 1980 SC 323, on which reliance has been placed by the learned counsel for the tenant-petitioner, deals with a different controversy. Facts of the case are that the tenant, who was occupying the premises at a monthly rent of Rs. 25 was in arrears of rent amounting to Rs. 600. The tenant executed a fresh agreement with the landlord on 13. 6. 1960, according to which the tenant has to pay Rs. 50 per month to the landlord, Rs. 25 of which amount shall be towards the liquidation of the compounded arrears of rent and Rs. 25 per month towards the current rent. The tenant fell in arrears again giving rise to the suit by the landlord. The question raised before the Supreme Court was as to whether part of unpaid compounded arrears of rent regarding which a fresh agreement was executed between the tenant and the landlord could be treated as "arrears of rent. Supreme Court has held that pre-agreement arrears have ceased to be arrears of rent as it has become consolidated debt payable by monthly instalment because the agreement in respect of the past arrears has given birth to a new cause of action and created a liability against the tenant independent and distinct from the contract of tenancy/rent-note. The relevant passage from the said decision of the Supreme Court is reproduced below : "as a result of the aforesaid 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 in monthly instalments. 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 instalment, 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 19, 1960. Thus the arrears of three instalments 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 ). " Before the Supreme Court was a case where a contract of tenancy under which the tenant has undertaken the obligation to pay the rent at Rs. 25 per month was substituted by a new contract so far as the arrears of rent amounting to Rs. 600 was concerned, according to which the tenant was to pay Rs. 25 per month along with the current rent. Section 62 of the Contract Act has laid down that the original contract is not to be performed if the parties to it have agreed to substitute a new contract for it or to rescined or alter it. In view of the agreement dated 13. 6. 1960 a new liability distinct from the contract of tenancy or rent note was created against the tenant. The landlord, therefore, could not have claimed the rent for the period for which the agreement was made on 13. 6. 1960 on the basis of the original rent-note. Supreme Court accordingly held that new agreement brought about a new cause of action and created a liability against the tenant, which was "independent and distinct from that founded on the rent note or lease of the premises. " Breach of such an agreement could be remedied only through a fresh suit. Such a result was a natural consequence of novation of contract under which liability created under the old contract or part of it, as the case may be, cannot be enforced. 6. The above principle cannot be applied when a decree for arrears of rent remains unsatisfied. In such a case the liability of the tenant to pay the arrear of rent regarding which decree was passed by the Court remains in tact and till that liability is discharged it continues to be the arrears of rent. As sub-section (4) of Section 20 requires the tenant to pay the "entire amount of rent" which includes the rent for which the decree was passed, he cannot take benefit of those provisions, because by a decree neither a contract is substituted by another contract nor the liability regarding which the decree was passed stands discharged unless the amount is paid. 7. It is true that as held by the learned Single Judge in Smt. Durgadevi v. 1st Additional District Judge, 1986 ALJ 962, sub-section (4) of Section 20 of the Act has been enacted for the benefit of a tenant and it should be construed liberally in this favour. But howsoever liberal approach may be the express provision contained in the statute cannot be ignored. This provisions requires the tenant to pay the entire amount of rent. If he fails to do so he cannot get the benefit conferred by it. When a benefit is conferred on a person or class of persons subject to certain conditions, unless those conditions are satisfied they cannot get benefit. Equitable consideration cannot be made applicable in such cases. Equity cannot operate to annul a statute. Here reference may be made to R. M. Paranjype v. A. M. Mali, AIR 1962 SC 753, in which it was laid down as under:- "in our opinion the authorities were clearly in error in thinking that they could grant relief in those cases on equitable principles. . . . . . Equity does not operate to annul a statute. This appears to us to be well established; but we may refer to White and Tudor's leading cases in equity (9th Ed.) p. 238, where it is stated: although, in case of contract between the panics. Equity will often relieve against penalties and forfeitures, where compensation can he granted relief can never be given against the provisions of a statute. " 8. For the reasons given above, Chhotey Lal v. Chhakki Lal, AIR 1953 All 113, (supra) lays down the correct law and does not require reconsideration. 9. Let the papers of this case be placed before the learned Single Judge for deciding the writ petition in accordance with law. Decided accordingly. .;