D.P. Uniyal & A.K. Krty, J. - (1.) WE have had the advantage of reading the judgment of our learned brother B. Dayal, J. but regret our inability to agree with the opinion expressed by him. We now proceed to give our reasons for the view we have taken of the case.
(2.) ALL the material facts have been set out in detail in the judgment of B. Dayal, J. and need not be repeated. The rent for the accommodation payable by the tenant Din Elahi was Rs. 3/8/ - p.m. There being no special contract, Rs. 3/8/ - on account of rent would fall due on the expiry of each month and become payable in each succeeding month. It was alleged by the Plaintiff that the Defendant had not paid rent for the months of March, April, May and June, 1958. On 7 -7 -1958 the Plaintiff gave a composite notice to the Defendant demanding payment of the arrears of rent for the period March to June, 1953, and also terminating the tenancy. It has been factually found that the Defendant had sent Rs. 3/8/ - by money order in the month of May, 1958 and another sum of Rs. 7/ - by money order in the month of June, 1958 and that both these money orders were refused by the Plaintiff. It is also an admitted fact that after service of notice dated 7 -7 -1958 the Defendant did not actually pay or remit by money order the amount demanded by the Plaintiff on account of arrears of rent for the period March to June, 1958. The question of law which arises on these facts and for the consideration of which the Full Bench was constituted is whether Din Elahi was a tenant in arrears of rent for more than three months so as to come under the mischief of Section 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act). It is, therefore, necessary to examine the language of Section 3(1)(a) of the Act, which is reproduced below: 3 (1) Subject to any order passed Under Sub -section (3) no suit shall, without the permission of the DM, 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) That the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of a demand.... Except to the extent specifically provided for in the Act, the general law in regard to landlord and tenant under the Transfer of Property Act remains unaffected in other respects. The rights and obligations of the lessor and the lessee are still governed by the provisions of the Transfer of Property Act, except, of course, in regard to matters which have been specifically provided for in the Act. Therefore, it will also have to be examined as to whether under the provisions of the Transfer of Property Act Din Elahi could be said to be a tenant in arrears of rent, because the first condition for the applicability of Section 3(1)(a) of the Act is that the tenant concerned is in arrears of rent for more than three months. If the tenant is not in arrears of rent for more than three months then the landlord will have no right to give a notice Under Section 3(1)(a) of the Act and to file a suit for ejectment on the tenant's refusal to pay the amount demanded under the notice. This necessarily poses a question of prime importance, viz. when is a tenant in arrears of rent. We may advert to the definition of lease Under Section 105 of the Transfer of Properly Act. The definition is: A lease of immoveable 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, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called rent. The definition requires the transferee i.e. the lessee to render periodically or on specified occasions moneys, share of crops etc. in consideration of which the right to enjoy the subject matter of the lease has been transferred. Section 108 of the Transfer of Property Act provides for the rights and liabilities of the lessor and the lessee, which are applicable in the absence of a contract or a local usage to the contrary. We may refer to Clauses (c) and (1) of Section 108 of the Transfer of Property Act, which are reproduced below: (c) The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and perform the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. (1) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf; From the aforesaid clauses of Section 108, as also the definition of lease Under Section 105, it will be apparent that the legal obligation of the lessee is fully discharged either by payment of rent or by tendering it at the proper time and place to the lessor or his agent. If this has been done by the lessee he would be entitled to hold the property during the time limited by the lease without interruption. In Clause (c) the word "tender" has not been used, but in the context the word "pays" used in Clause (c) must be treated as synonymous with the word "tenders" otherwise it will result in an obvious legal anomaly, viz. that even though a tenant by offering to pay rent or tendering the same to the lessor or his agent fulfils his legal obligation and is discharged from his statutory liability still the lessor may refuse to perform his legal obligation Under Clause (c) of Section 108. The lessor may inspite of offer or tender of payment very well say that he will not permit the lessee to hold the property as the lessee has not actually paid the rent reserved by the lease to him. The two clauses, therefore, in our opinion, have got to be harmoniously construed and upon a harmonious construction of the same it must be held that a proper tender is equated to actual payment. If this be so, then a tenant who has tendered payment of rent at proper time and place, as and when it fell due, cannot, in our opinion, be said to be in arrears of rent.
(3.) LEASE is created by a combination of contract, and conveyance. Section 4 of the Transfer of Property Act itself provides that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, in so far as the contractual part of the lease is concerned, the provisions of the Contract Act may also be examined apart from the provisions contained in the Transfer of Property Act. Section 37 of the Contract Act provides that the parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of that Act, or any other law. Section 38 of the said Act further provides that when the promisor has made an offer of performance of the promise, and the offer has not been accepted, the promisor is not responsible for the nonperformance nor does he thereby lose his rights under the contract. The offer to perform the promise must be unconditional and must be made at proper time and place. Under Section 46 of the same Act a promisor is required to perform his promise within a reasonable time in cases where the promise is to be performed under the contract without application by the promisor and no time for performance is specified. In the case of a lease, the payment of rent rests on the promise of the lessee to periodically pay rent as agreed with the lessor. Therefore, apart from the provisions of Section 108 of the Transfer of Property Act, even under the Contract Act, the lessee is bound to perform his promise to pay rent and this promise may be discharged either by actual performance or by offer of performance in accordance with the provisions of the Contract Act referred to above. So, a lessee who has proved that he had tendered rent which had fallen due to the lessor cannot be said to be in arrears of rent. Tender under certain circumstances must perforce be held to be tantamount to payment. Only by holding so can the anomaly which otherwise would result be avoided and the various provisions of the Act, the Contract Act and the Transfer of Property Act be harmoniously construed.;