LexMANGAL SEN versus KANCHHID MAL
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' \ • - . .. MANGAL SEN v. KANCHHID MAL August 20, 1981 [R.S. PATHAK, E.S. VENKATARAMIAH AND V. BALAKRISHNA ERADI, JJ.] 331 U.P. Urban Buildings (Regulation uf Letting, Rent and Eviction) Act, 1972, secUon 20(2) (a) ( 4)-Scope of. The respondent-landlord filed a suit under section 20(2)(a) of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 against the appellant praying for his eviction from the suit premises. It was alleged that the tenant was in arrears of rent for not less than four months from April 9, 1972, that he had failed to pay the same within one month from the date of the notice to him and that the tenant had declined to pay arrears of rent despite the notice. While denying the allegation of default in payn1ent of rent the tenant claimed that since he stood surety for the landlord for th•! payment of arrears A B c I> of sales tax payable by him there could not b~ any question of arrears of rent E being outstanding against him to the landlord. Although the trial Court found it as a fact that the tenant had committed default in payment of rent for more than four tnonths after the notice of demand had been issued it held that the landlord's action in inducing the tenant to stand surety for him for payment of arrears of sales tax constituted waiver of the demand for rent and that for this reason the landlord was not entitled to the relief of eje<:tmen t. In revision the District Judge found that the tenant had at no stage of the proceedings before the trial Court put forward the plea of waiver but that an issue had been framed by the trial Court of its own accord. On merits the District Judge held that no conduct on the part of the landlord which amounted to waiver had been established because the tenant had not actually made any payment on behalf of the landlord towards the sales tax dues. The High Court dismissed the tenant's revision petition under section 115 C.P.C. F G [Since in the special leave petition the tenant contended that the revision H petition filed by him in the High Court was not maintainable in Iaw, this Court granted special leave to appeal against the judgment of the District Court.] 332 SUPREME COURT REPORTS [ 1982] 1 S.C.R, A Dismissing the appeal, B c D E F G H HELD : The District Court was right in holding that in the absence of any plea of waiver put forward by the tenant the trial Court was not really called upon to go into that question. Therefore, the finding of the trial Court that the landlord's notice had been effaced by his (landlord's) subsequent conduct w·hich amounted to waiver was manifestly illegal and perverse. It was the specific case of the tenant that no an1ount whatever had been paid by him to the sales tax authorities on behalf of, the landlord. Neither did the landlord make any endorsement on the rent deed adjusting the proposed payment of sales tax against arrears of rent. [335 A·D] Having failed to establish that he had complied with the conditions specified in section 20(4) of the Act the tenant is not entitled to be relieved against his liability for eviction on the ground set out in section 20(2J(a) of the Act. [336 H-337 A] The provisions of section 20(4) will get attracted only if the tenant bad at the first hearing of the suit unconditionally paid or tendered to the Jandlord the entire amount of rent and damages due from him for use and occupation of the building together with interest thereon at 9% per annum. There is nothing on record to show that the deposit was made on the first date of hearing and that it was made by way of unconditional t~nder for payment to the landlord. On the contrary the tenant in his written statement, had stated that since he had stood surety for the landlord's arrears of sales tax, there was no default by him in the payn1ent of rent. In the face of a plea disputing the existence of any anears of rent and denying the default the deposit even if made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Nor is there anything on the record to show that what was deposited was the correct amount calculated in accordance with the provisions of section 20(4) of the Act. (336 D-H] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 965 of 1980 Appeal by special leave from the judgment dated the 28th November, 1979 of the Allahabad High Court in Civil Revision No. 661
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