Ram Deo v. Umrao Singh
SARKARIA, J. This appeal by special leave is directed against a
judgment, dated August 21. 1969, of the High Court of Allahabad,
affirming on second appeal the judgment of the Civil Judge, Dehra
Dun. It arises out of these facts :
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Umrao Singh, respqndent herein, who died during the pendency
of proceedings in this Court and is substituted by his legal representa
tives, instituted a suit on Septeml••r 26, 1961 against Ram Deo, appelc
larit herein, for damages and '\)!' eviction from House No. 122B, f
Choharpur, District Dehm Dun. Umrao Singh was the landlord of the
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suit premises. Ram Deo was occupying the premises at a monthly rent
of Rs. 25.
On June 13, 1960, a sum of Rs. 600 wa~ due to the respondent
from the appellant as arrears of rent and an agreement was execnted
between the parties on that date, according to which, the tenant had to
pay Rs. 50 every month to the respondent, to wit Rs. 25 toward~
liquidation of the compounded ar.rears of rent, and Rs. 25 per month
towards the current rent falling due. The appellant fell in arrears
again. Thereupon, the respondent served a notice of demand upon
the plaintiff on August 21, 1961, requiring him to pay Rs. 380 as
the arrears of rent (Rs. 5 being balance due from the period April 10,
1960 to May 9, 1960 and Rs. 370 for the period from May 10. 1960
to August 9, 1961) within one month from the receipt of the notice.
The tenant-appellant pleaded that the parties had acted upon the
said agreement dated June 12, 1960, and on settlement of accounts
in April 1961, a sum of Rs. 305 was alleged to be due to the respon
dent. Thereafter the appellant made another payment of Rs. 50 to
the respondent on June 6, 1961. On September 27. 1961 appellant
tendered to the respondent a sum of Rs. 200. The respondent did not
RAM DEO v. UMRAO SINGH ( Sarkaria, J.) 69
accept this tender, and instead, instituted the suit for damage& and
eviction of the appellant from the said premises.
The tenant further pleaded that the arrears of rent due at the date
of notice was Rs. 75 only which did not exceed three months' rent,
that the rest oti the amount (Rs .. 75) demanded represented only past
arrears covered by the agreement in respect of which the landlord had
waived his right of ejectment~
The trial court held that from Ex. A-2, it was clear that only
three months' rent was in arrears and therefore, no ground for eviction
had been made ont under Section 3(a) of the U.P. (Temporary)
Control of Rent and Eviction Act No. III of 1947 (hereinafter referred
to as the Act) . With this reasoning, the trial court dismissed the
respondent's petition for eviction.
On appeal, the Additional Civil Judge, Dehra Dun, by his judg
ment dated May 29, 1963, reversed the, finding of the Munsif and
held that thei rent which was in arrears upto June! 13, 1960 and· which
was the subject-matter of the agreement of that date, did not lose its
character as "ar.rears of rent" merely because there was an agreement
to pay the same in instalments. On these premises, he allowed the
appeal and directed eviction of the tenant.
The tenant carried a further appeal to the High Court. The High
Court affirmed the finding of the Civil Judge and dismissed the appeal.
Hence this appeal by the tenant.
Dr. Barlingay, learned counsel for the appellant has advanced two
contentions. First, that out of the amount of Rs. 150 due to the
respondent at the date of the notice, Rs. 75 was due under the agree
ment dated June 12, 1960, and that amount could not be treated as·
arrears, of rent and tacked on to three months current rent in
arrears, for the purpose of chmse (a) of Section 3 ( {) of the Act. It
is argued that the liability to pay the past amount of Rs. 75 arises
out of the aforesaid agreement which furnished an independent cause
of action different from that founded on the rent note or the lease of
the premises. Second, that Section 114 of the Transfer of Property
Act will be applicable to the sitnation because this is a matter on
which the Rent Act is silent. Since the tenant has cleared all the arrears
of ren~ on the first hearing of the suit, he could not be evicted in view
of the provisions contained in Section 114 of the Transfer of Property
Act.
In reply, Mr. Aneja submits that the pre-agreement arrears of rent
did not lose their original character as arrears cJ. rent, merely because
tlte landlord had agreed to allow the ·tenant to clear them in instal-
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ments. It is emphasised that what was intended to be an accommoda
tion could not be turned into a handicap for the landlord. It is argued
that since on the date of the demand notice served upon the appellant,
the latter was admittedly liable to pay Rs. 150; Rs. 75 towards tl1e
rent of 3 months prior to August 12, 1961 and Rs. i5 towards the
rent of three months preceding the demand notice, he was in arrears,
of rent for a period of "mOirn than three months" within the meaning
of clause (a) of Section 3 of the Act, and, as such, was liable to be
evicted.
W6 will now deal with the first contention canvassed by Dr.
Barlingay.
The material part of Section 3 of the Act reads as follows :
"3 ( 1). Subject to any order passed under sub-section ( 3)
no suit shall, without the permission of the District Magis
trate, be filed in :my civil court against a tenant for his
eviction from any accommodation, except on one or mare 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 demand.
:E (b) to (g) .................................... "
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In order to make out a ground for ·eviction under clause (a) of
Section 3 (1;, the landlcrd must establish three facts : (i) that the
tenant is in arrears of rent; (ii) that such arrears are of rent for more
than three months; and (iii) the tenant has failed to pay the same to
the landlord within one month of the service upon him of a notice of
demand. If any one of these factual ingredients is not established, no
order of eviction can be passed under this Clause. In the present
case, there is no dispute that at· the date of the notice, the tenant owed
an amount of Rs. 150 to the landlord, out of which Rs. 75 represented
tlrree months' rent preceding the notice. There is also no dispute that
ttle balance of Rs. 75 due from the tenant related to the period prior
to the agreement, dated June 12, 1960, and under the agreement, the
tenant was bound to pay the same in three monthly instalments, which
he had, in breach of the agreement, failed to pay. Controversy centres
round the question, whether this balance of Rs. 75 could also be
treated as "arrears of rent" and tacked on to the anears of rent
relating to the three months preceding the notice for the purpose of
clause (a) of Section 3(1) of the Act. In our opinion, the answer ta
this question must be in the negative. As a result of the aforesaid
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RAM DEO v. UMRAO SINGH (Sarkaria, !.} 71
agreement, the pre-agreement arrears lost their original character a~
"arrears of rent" and assumed the ,character of a consolidated debt
which; under the terms of the agreement, was payable by the debtor
(appellant) 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 12, 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 d~e at the date of the notice,
for the purposes of clause (a) of Sectio,n 3 (I).
The proposition can be tested by taking an example. Supposing,
the appellant had defaulted to pay four monthly instalments of Rs. 25
each in accordance with the aforesaid a1j1'eement, but had regularly paid
the rent as it fell due every month for the post-agreement period. Will
the respondent in such a situatiO!n be entitled to sue for the eviction
of the tenant on the ground that he has committed four successive
breathe~ and Clefaults under the said. agreement ? The answer is an ·
·obvious 'No'. The respondent's remedy in such a situation, will only
he to sue for the recovery of the amounts due on the· foo;t of the
oaforesaid agreement.
In the light of the above discussion the conclusion is inescapable,
that for the purposes of clause (a) of Section 3 ( 1) the appellant was
in arrears of rent for thre.e months, only. In other words, he was
not in "arrears of rent for mo.re than three months" within the meaning
-of clause (a), and, as such, was not liable to be evicted under that
.clause. The High Court and the first appellate court were in error in
holding t0 the contrary.
In the view we take, it is not necessary to deal with the second
·contention canvassed by Dr. Barlingay.
In the result, we allow this appeal, set aside' the decree of the
High Court and dismiss the respondent's suit. In the circumstances
of the case however, we leave the partie~ to pay and Qea:r their own
costs in this Court.
P.B.R. · · · ~ppeal allowed.
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