A.N. Dikshita, J. - (1.) THIS is a tenant's writ petition under Article 226 of the Constitution of India for issuing a writ of certiorari to quash the orders dated 16 -3 -79 and 10 -10 -1980 passed by respondent Nos. 2 and 1 respectively. The facts giving rise to the present petition are that the petitioner is in occupation as a tenant of premises No. 134, Mohalla Katra Saidan, Muzaffarnagar on a monthly rent of Rs. 20/ - which is owned by respondent No. 3 Birla Singh. Various litigations in respect of this accommodation started from 1964 and a suit No. 841 of 1971 which was filed on the ground of default as it was alleged that the petitioner had not paid rent since 6 -9 -70 inspite of service of notice dated 30 -9 -70 followed by another notice dated 16 -8 -71, was dismissed after contest on 3 -3 -76. Prior to the filing of the suit the petitioner was allegedly subjected to litigation as contemplated under Section 3 of U.P. Act No. III of 1947 which was rejected on 21 -8 -1966. A revision against the said order was also dismissed on 7 -1 -68. Another application of the same nature under Section 3 of U.P. Act No. III of 1947 was again rejected followed by another suit No. 8 of 1969 as well as criminal proceedings initiated by respondent No. 3 against the petitioner. Aggrieved by the dismissal of suit No. 841 of 1976 by the judgment and order dated 5 -3 -76 respondent No. 3 preferred a revision (No. 46 of 1977) which was dismissed by the District Judge. Muzaffarnagar on 30 -8 -1976.
(2.) RESPONDENT No. 3 filed another suit against the petitioner in the court of respondent No. 2 for his eviction from the premises in suit and also for the recovery of arrears of rent and damages. It was alleged in the plaint that the defendant (petitioner) committed default in the payment of rent from 6 -9 -70. The plaintiff -respondent No. 3 sent a notice on 18 -7 -77 calling upon the defendant (petitioner) to pay rent due from 6 -9 -70 and also to furnish details of rent made by him in relation to proceeding of Suit No. 841 of 1971 referred to above. The defendant (petitioner) replied to this notice on 10 -8 -77. It was intimated by the defendant (petitioner) to the plaintiff -respondent No. 3 that besides deposits made during the pendency of suit No. 841 of 1971 in the trial court the defendant (petitioner) had also deposited a sum of Rs. 200/ - on 7 -4 -76 being rent from 6 -3 -76 to 5 -1 -77 during the pendency of S.C.C. Revision No. 46 of 1976 in the court of the District Judge, Muzaffanagar. The plaintiff -respondent No. 3 thus pleaded that rent only till 5 -3 -76 was deposited in suit No. 841 of 1971 while the rent w.e.f. 6 -3 -76 to 5 -1 -77 was deposited in the proceeding of the said revision No. 46 of 1976, thus claiming that the petitioner could get benefit of the such deposits only till 5 -9 -76. The petitioner having failed to pay rent from 6 -3 -76 within the period provided in the notice has committed default entitling the plaintiff -respondent No. 3 to a decree for eviction besides a decree for an amount of Rs. 348.40 being the rent w.e.f. 6 -3 -76 till 18 -8 -76. The allegations as contained in the plaint were denied by the defendant (petitioner) by filing a written statement and contesting the suit on the ground that he has never committed any default. It was further contended by the defendant -petitioner that the deposit of rent w.e.f. 6 -3 -76 to 5 -1 -77 amounting to Rs. 200/ - in Revision No. 46 of 76 would be deemed to be a deposit in the proceedings of Suit No. 841 of 1971 hence the rent till 5 -1 -77 stood paid and the petitioner cannot be deemed to be a defaulter in the payment of rent for the said period. It was also stated by the petitioner that after the decision of Revision No. 46 of 1976 a notice was sent to the respondent No. 3 on 27 -4 -77 apprising him about such deposit though the respondent No. 3 being party to the proceeding was aware about such deposits. The petitioner further stated that a money order for Rs. 60/ - was sent on 13 -4 -77 being rent w.e.f. 6 -1 -77 but the respondent No. 3 deliberately refused to accept the same. The respondent No. 3 was also called upon to reveal his intention about the manner in acceptance of rent. This notice sent by the petitioner on 27 -4 -77 was not replied by respondent No. 3. The petitioner then deposited the rent w.e.f. 6 -3 -76 to 5 -1 -77 on 2 -6 -77 in the proceeding of Misc. Case No. 156 of 1977 under Section 30 of the Act in the Court of Munsif, Muzaffarnagar. This application was allowed on 29 -10 -77. The petitioner lastly contended that the instant suit has been filed with mala fide intention as another proceedings claiming eviction of the petitioner under Section 21 of Act No. XIII of 1972 has also been filed. The trial court (respondent No. 2) decreed the suit vide its judgment and order dated 16 -3 -79. Aggrieved against the judgment and order passed by respondent No. 2 decreeing the suit the petitioner preferred a revision under Section 25 of Provincial Small Causes Courts Act before the District Judge. Muzaffarnagar which was numbered as J.S.C.C. Revision No. 66 of 1979 which was transferred to the Court of I Addl. District Judge, Muzaffarnagar. This revision failed and was dismissed on 10 -10 -80 The instant petition has thus been filed under Article 226 of the Constitution of India for quashing the judgment and order dated 10 -10 -80 dismissing the revision by respondent No. 1.
(3.) THE case of the petitioner as is evident from the perusal of the record is that admittedly respondent No. 3 after the disposal of suit No. 841 of 1971 was allowed to withdraw the entire amount of rent deposited in the said suit. The revision arising out of the dismissal of the suit No. 841 of 1971 was also dismissed on 30 -8 -76 was confirmed. In view of the judgment and order of the trial court dismissing the suit the amount deposited during the pendency of the revision amounting to Rs. 200/ - on 17 -4 -76 was also liable to be withdrawn by respondent No. 3 who was fully competent and entitled to withdraw it. The deposit having been made in the proceeding either in the court of respondent No. 2 or in the court of respondent No. 1 itself gave a valid discharge to the petitioner from his liability to pay the amount of rent till 15 -1 -77. In any case the petitioner cannot be deemed to be defaulter in the eye of law. In any case the contention of the petitioner is that he has acted in a bona fide manner in tendering every amount due to respondent No. 3 and which the latter could have withdrawn. The willingness to withdraw the amount is also apparent from the perusal of the notice dated 18 -7 -77 sent by respondent No. 3 to the petitioner which clearly shows that the details of the deposits were sought for from the petitioner so that the respondent No. 3 may withdraw the amount. The compliance of this notice was achieved by the petitioner. The respondent No. 3 however, did not give any reply to the notice sent by the petitioner in reply to the notice thus giving belief to the petitioner that respondent No. 3 had agreed to withdraw the amount and had finally consented thereto. In view of the decision of Suit No. 841 of 1971 and Revision No. 46 of 79 respondent No. 3 had full control over the amount and the petitioner in any case cannot be penalised for a willful and deliberate default on the part of the respondent No. 3 in refusing to make an application for withdrawal of such amounts. However, the petitioner in view of such deposits cannot be deemed to be a defaulter. The contention of the petitioner is that in view of the deposits of rent upto 15 -1 -77 in Revision No. 46 of 1976 the courts below respondent Nos. 2 and 1 respectively erroneously held that the deposit will not be deemed to be a valid tender in respect of the rent for the period w.e.f. 6 -9 -76 to 5 -1 -77 as the revision was dismissed on 30 -8 -76. The rent was deposited with the permission of the court in revision No. 46 of 1976 on 14 -4 -76. The petitioner claims that the courts below committed manifest error in holding that the rent deposited in advance will not be deemed to be a valid deposit under Order XV rule 5 C.P.C. as it had not become due till then. The petitioner further contended that the court below have no doubt found that a liberal interpretation has to be given while scanning Section 20(4) of the Act and also that the petitioner had at no stage any intention of not paying the rent still the petitioner was held to be a defaulter. Further it has been stressed by the petitioner that an amount which remained in custodia legis in a law court would not hold a tenant guilty of committing a default within postulates of Section 20 of the Act in respect of the same amount.;