- (1.) THIS Civil Second Appeal has been filed by the appellant against the judgment & decree dated October 4, 1991 in Civil Appeal No. 18/90, passed by learned Additional District Judge No. 4, Jaipur City, Jaipur, by which, the judgment & decree dated February 2, 1990 passed by learned Additional Civil Judge, Jaipur City, Jaipur was confirmed.
(2.) THIS Civil Second Appeal has been filed, in which, following three substantial questions of law are involved : " (i) Whether a tenant can deposit rent in the Court under Section 19-A without first taking recourse to the provision of Sec. 19-A (3) (a) and (b) of the Act. (ii) Whether any deposit made against the provisions of Section 19a is a valid deposit and the landlord can not get a decree for that amount from the Court. (iii) Whether the Appellant is a 'landlord' of the respondent with regard to. the share of rent of the minors and he is entitled to recover the arrears of rent from the respondent. " Briefly stated, a suit for recovery of rent was filed by appellant against respondent on July 31, 1986 alleging that a lease deed dated March 4, 1976 was executed by respondent in favour of Hakim Martin D'silva, Gregory D'silva, Stephen D'silva (appellant) and Smt. Patricia widow of late Michal D'silva in capacity of guardian of her two minor sons and one daughter. By this lease deed, a land situated in Subhash Chowk was given for constructing Cinema Hall. According to terms of the lease deed, the respondent was to pay Rs. 37,500/- per year to the above mentioned 4 persons. Each lessor was to be paid 1/4 share separately. Some time after lease agreement, Smt. Patricia left her home, leaving her minor children behind and without informing any member of the family. Since then the minor children are living with the appellant, who is their real uncle. It is given out that since 1976 nothing is heard of Smt. Patricia. It is submitted by Shri Tikku, learned counsel that on June 3, 1979 all the lessors gave an undertaking to the respondent that the amount of share of the minors be paid to the appellant and they took the responsibility that if any legal claim is made by Mrs. Patricia or the minors, they will be jointly and severally responsible to satisfy the claims. This undertaking was accepted by the respondent and acting on the same, he paid all the arrears upto June 6, 1979 amounting to Rs. 25,781. 25 and thereafter also continued to pay the rent upto March, 1983, leaving a balance of Rs. 502. 13 only. It is pointed out that respondent previously also did not pay lease amount of Rs. 7, 031. 25 from 1. 4. 83 to 31. 12. 83, amount of Rs. 502. 13 was already due before April, 1983, from 1. 7. 85 to 30. 6. 85 amount of Rs. 9,375/- became due. The interest thereon comes to Rs. 2430/- Thus, the total amount due became Rs. 19,338. A notice was, therefore, served upon the respondent on 27. 7. 85 where upon the respondent paid Rs. 10,932. 50 by cheque, which included rent from 1. 7. 84 to 30. 6. 85, and also rent for the month of July a. 08. 1985, but the remaining amount of Rs. 7533. 38 was not paid. This amount is regarding rent from 1. 4. 83 to 31. 12. 83 i. e. Rs. 7031. 25 and Rs. 502. 13 was already balance outstanding, totalling to Rs. 7533. 38 Plus interest upto 31. 3. 86 comes to Rs. 2,265 as per the terms of the lease deed. Thus, the total dues against the respondent are Rs. 9,738. 38. It is further pointed out that the respondent has paid the rent share of the minors to the appellant till 1986 and is still paying the rent except for the amount stated above, which is outstanding as arrears. It is submitted that since the respondent did not pay the above mentioned arrears of rent appellant filed a suit for recovery of rent as stated above. The respondent in his reply admitted the undertaking given by the appellant, but denied the claim, pleading inter-alia is that nothing is due against him as the appellant and his other partners refused to take rent whereupon the respondent deposited the rent in the Court under provisions of Section 19-A of the Act. It was further stated that the other three lessors/partners have withdrawn the amount from the Court and the appellant may also do the same if he is held to be entitled by the Court to withdraw the amount of the share of minors from the Court. It is also pointed out that the respondent-defendant filed the reply, but did not appear in witness box to support the same. The respondent stated in the reply that since he has deposited rent of Rs. 7, 538. 38 in Court under provisions of section 19-A of the Act in name of Mrs. Patricia, therefore, nothing is outstanding against him so far as the claim of the share of minor children is concerned. It is submitted by learned counsel that an application was filed under provisions of Section 19-A of the Act. However, no notice was given to Mrs. Patricia as required under law, since her whereabouts are not known. The application for depositing the rent in name of Mrs. Patricia was, therefore, dismissed by Court in default. It is, therefore, dismissed by court in default. It is, therefore, contended that the deposit under provisions of section 19-A was, therefore, invalid and void. It is contended that a tenant cannot deposit rent in Court u/s 19-A of the Act without first taking recourse to the provisions of Section-19-A (3) (a) (b) of the Act. The learned both the courts below have, therefore, seriously erred in holding that the amount was rightly deposited by respondent under provisions of Section 19-A and he is, therefore, absolved from any responsibility of paying the outstanding rent and interest to the appellant.
(3.) SECTION 19-A was inserted in the Act in the year 1976 with a view to remove difficulties of tenants in paying rent to the landlord in certain situations. The SECTION 19-A, therefore, provides for depositing rent in Court. If the rent is deposited in Court after following the procedure laid down under the said section then the tenant will be absolved from paying the rent for that particular period to the landlord, the amount of which has been deposited in Court. It is, therefore, mandatory to follow the procedure laid down in SECTION-19a to get the advantage of the provisions of this SECTION. Sub-SECTION (3) of SECTION 19-A lays down the methods, by which, the rent can be deposited in Court by a tenant. It provides that rent can be sent by money order or tenant may give notice in writing to the landlord to specify a bank and account number, in which, the rent may be deposited by the tenant to the credit of the landlord. Clause (c) of sub- section (3) provides as under : - " (c) Where he has remitted the rent by postal money- order under clause (a) and the money order is received back by him under a postal endorsement of refusal or unfound and where the landlord does not specify a bank and account number under clause (b) or where there is bonafide doubt as to the person or persons the whom rent is payable, the tenant may deposit such rent with the court within fifteen days of the expiry of the period of ten days referred to in clause (b) and in the case of such bonafide doubt as aforesaid, within fifteen days of the time referred to in sub-section (1) and further continue to deposit with the court any rent which may subsequently become due in respect of the premises. " In the matter under consideration neither the rent was sent by postal money order nor any notice was given to Mrs. Patricia regarding payment of rent. If there was any bonafide doubt as to person or persons to whom the rent had to be deposited in court within 10 days/15 days referred to in clause (b) or in sub-section (1) of the Act. The tenant is thereafter, expected to further continue to deposit any rent, which may subsequently become due in respect of premises. None of this procedure was followed and amount of arrears of rent was deposited in the Court u/s 19-A of the Act. Since the address/whereabouts of Mrs. Patricia were not known and no notice could be issued to her from Court regarding the deposit of rent, the application u/s 19a was rightly dismissed. Thus, it is evident that the deposit of rent in the Court u/s 19-A was illegal and against the mandatory provisions of section 19 A of the Act. It can, therefore, be said that the respondent did not exhaust the methods laid down in sub-section (3) and (4) of the Act, therefore, such deposit of rent is invalid and such account of rent remains outstanding dbspite its deposit in Court. So far as the second substantial question of law is concerned, as discussed above, the rent deposited by the respondent under provisions of Section 19-A was illegal and dismissed by the Court. This deposit of rent is, therefore, of no consequence whatsoever. There is no provision u/s 19-A regarding depositing any outstanding arrears of rent. What is provided is that where there is a bonafide doubt as to the person or persons to whom the rent is payable, the tenant can deposit said rent in the court within 15 days of the period of 10 days/15 days referred in sub-clause (3) of Section 19a of the Act. The amount deposited by the respondent u/s 19a of the Act is, therefore, illegal and invalid and does not absolve him from payment of rent, which is admittedly due and has not been paid to the landlord. Therefore, the landlord-appellant was entitled to get a decree regarding arrears of rent etc. from the Court in the suit filed by him. So far as the third substantial question of law is concerned, it will be proper to extract the definition of word 'landlord' as defined in clause (iii) of Section 3 of the Act, which reads as under : - "3 Defmitions-In this Act, unless there is anything repugnant in the subject or context - (iii) "landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as any agent, trustee, guardian or receiver or any other person or who would so receive or be entitled to receive the rent if the premises were let to a tenant, it includes a tenant in relation to a sub-tenant. " It is evident that Mrs. Patricia without informing any of the family member left the home, leaving her minor children behind. These children are living with the appellant, who is their real uncle. Nothing has been heard of Mrs. Patricia since then. On June 3, 1979 all the lessors gave an undertaking to the respondent that the amount of share of minors be paid to the appellant and took the responsibility that if any legal claim is made by Mrs. Patricia or the minors, they will be jointly and severally responsible to satisfy the claims. The respondent accepted this undertaking and paid all the arrears of rent uptill 6. 6. 1979 amounting to Rs. 5,781. 25. Thereafter, also continued to pay rent upto March, 1983 leaving a balance of Rs. 502, 13. Thus, it is clear that the respondent has paid rent on behalf of the minor children for years together to the appellant and accepted the undertaking given not only by the appellant, but also by the other co-sharers of the property, who were also his landlords. A bare reading of definition of 'landlord' as extracted above, shows that any person, who for the time being is receiving rent of any premises, whether on his own account or as guardian/trustee/agent would come within the definition of landlord. The respondent accepted the undertaking and paid rent of several years to appellant on behalf of the minor children. It is further stated by the learned counsel for the appellant that the respondent is even now paying the current rent to the appellant on behalf of the minors. However, the respondent has not paid rent for the period claimed in the suit. Thus, it is clear that the appellant is 'landlord' within the meaning of definition as proveded in clause (iii) of Section 3 of the Act and the respondent is liable to pay the arrears of rent alongwith interest, as claimed in the suit. The same view was taken by the Court in Bajranglal vs. Ram Deo (1 ). ;