S.N. Variava, J.
1. This Appeal is against a Judgment dated 30th July, 1998.
2. Briefly stated the facts are as follows:
The Appellants are the wife, son and daughter of one A.K. Gaur. Thesaid A.K. Gaur was the tenant of the Respondents 1 and 2 (hereinaftercalled landlords). The premises had been given on rent to the said A.K.Gaur at a monthly rent of Rs. 100/-. On 29th September, 1966 thelandlords sent a notice terminating the tenancy of A.K. Gaur with effectfrom the 31st day of the receipt of the notice. The tenancy wasterminated on the ground that the rent had not been regularly paid. Byhis letter in reply dated 6th October, 1966 A.K. Gaur claimed that therent up to September, 1966 had already been paid. The said A.K. Gaurclaimed that the rent was only Rs. 80/- per month as certain facilitieshad been withdrawn.
3. The landlords then filed Suit No. 2385 of 1966 for eviction, forrecovery of rent and for damages and mense profits. A.K. Gaur filed anapplication seeking permission to deposit the rent in the Court. Thispermission was granted by the Court. On 29th April, 1967 A.K. Gaurdeposited the rent due and payable for the period from 1st October,1966 to 31st March, 1967. On 6th October, 1967 he deposited rent forthe period from 1st April, 1967 to 30th September, 1967. On 25th April,1968 he deposited rent for the period from 1st October, 1967 to 31stMarch, 1968. All these deposits were at the rate of Rs. 80/- per month.The landlords then applied that they be allowed to withdraw theamounts lying deposited in Court. A.K. Gaur opposed this applicationon the ground that the landlords could only withdraw provided theyaccepted that Rs. 80/- per month was the rent of the premises. Thelandlords therefore did not pursue their application and no order waspassed thereon.
4. On 15th January, 1970 A.K. Gaur died. The Appellants werebrought on record as his heirs. On 15th July, 1972 the U. P. UrbanBuildings (Regulation of Letting, Rent and Eviction) Act, 1972(hereinafter referred to as the said Act) was enacted. Sections 3(a) and39 of the said Act read as follows:
'3. Definitions- In this Act, unless the context otherwiserequired
(a) 'tenant', in relation to a building, means a person by whomits rent is payable, and on the tenant's death:-
(1) In the case of a residential building, such only of hisheirs as normally resided with him in the building atthe time of his death ;
(2) In the case of a non-residential building, his heirs ;
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39. Pending suits for eviction relating to buildings broughtunder regulation for the first time. - In any suit for eviction ofa tenant from any building to which the old Act did not apply,pending on the date of commencement of this Act, where thetenant within one month from such date of commencement orfrom the date of his knowledge of the pendency of the suit,whichever be later, deposits in the court before which the suit ispending, the entire amount of rent and damages for use andoccupation (such damages for use and occupation being calculatedat the same rate as rent) together with interest thereon at therate of nine per cent per annum and the landlord's full cost of thesuit, no decree for eviction shall be passed except on any of thegrounds mentioned in the proviso to Sub-section (1) or in clauses(b) to (g) of Sub-section (2) of Section 20, and the parties shall beentitled to make necessary amendment in their pleadings and toadduce additional evidence where necessary.
Provided that a tenant the rent payable by whom does notexceed twenty-five rupees per month need not deposit anyinterest as aforesaid.'
5. It is an admitted position that the old Act did not apply to theconcerned premises. The Appellants made an application under Section39 of the said Act claiming that they had deposited all the rent andcalling upon the landlords to confirm the same. The landlords filed areply denying that all the rents had been deposited. The landlordshowever did not set out what had not been deposited. The Court,therefore, called upon the Landlords to indicate what according to themhad not been deposited. The landlords then gave particulars indicatingthat the deposits had only been made at the rate of Rs. 80/- per month,whilst the rent was Rs. 100/- per month. They also indicated that therehad been delay in deposits and that interest had not been deposited inresects thereof. The landlords claimed that the Appellants haddeposited Rs. 1491/- less and therefore were not entitled to the benefitof Section 39. The Landlords also claimed that as the tenancy of A.K.Gaur had been terminated the Appellants were not entitled to thebenefit of Section 39.
6. On 12th August, 1980 the suit filed by the landlords was decreed.It was held that the rent of the premises was Rs. 100/- per month. Itwas held that there was a short deposit and that therefore theAppellants could not claim the benefit of Section 39. It was also heldthat the Appellants were not the tenants under the said Act and,therefore, not entitled to the benefit of Section 39.
7. Civil Revision No. 128 of 1980 filed by the Appellants was allowedby a judgment dated 31st July, 1982. In this judgment it has been heldthat the Appellants were tenants within the meaning of the said Act. Itwas held that they had deposited all the amounts and were entitled tothe benefit of Section 39.
8. The landlords then filed Writ Petition 11858 of 1982 in the HighCourt of Allahabad. This Writ Petition came to be allowed by theimpugned Judgment dated 30th July, 1998. It is held that rent, at therate of Rs. 100/- per month, had not been deposited and the entireamount of the rent had not been deposited. It is held that the depositsat the rate of Rs. 80/- per month were not made on time and interestfor the delayed periods had also not been deposited. The Court,therefore, set aside the Order dated 31st July, 1982 and restored thedecree of the trial Court. The question whether the Appellants couldclaim the benefit of Section 39 was not answered on the footing thateven if the said Act applied the Appellants had not complied with therequirements of Section 39.
9. Mr. Sudhir Kumar Gupta, the learned counsel for the tenant-Appellants has submitted that, according to the Appellants, the rent wasRs. 80/- per month. He submitted that even prior to the coming intoforce of the said Act the Appellants had deposited the rent in Court. Hesubmitted that at the time the said Act came into force there were noarrears. He submitted that, as there were no arrears, no interest waspayable. He pointed out that after the said Act came into force, theAppellants and deposited the difference of Rs. 20/- per month andinterest thereon. He submitted that therefore the Appellants have fullycomplied with Section 39 of the Said Act.
10. Mr. Sudhir Kumar Gupta relied upon the definition of 'tenant',under Section 3(a) of the said Act. He submitted that the heirs of thetenant were deemed to be the tenants under the said Act.
11. Mr. Sudhir Kumar Gupta relied upon the case of Damadilal v.Parashram reported in : AIR1976SC2229 : AIR1976SC2229 , wherein it has been held asfollows:
'11. We find it difficult to appreciate how in this country wecan proceed on the basis that a tenant whose contractual tenancyhas determined but who is protected against eviction by thestatute, has no right of property but only a personal right toremain in occupation, without ascertaining what his rights areunder the statute. The concept of a statutory tenant having noestate or property in the premises which he occupies is derivedfrom the provisions of the English Rent Acts. But it is not clearhow it can be assumed that the position is the same in thiscountry without any reference to the provisions of the relevantstatute. Tenancy has its origin in contract. There is no disputethat a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of thetenancy. It cannot be assumed, however, that with thedetermination of the tenancy the estate must necessarilydisappear and the statute can only preserve his status ofirremovability and not the estate he had in the premises in hisoccupation. It is not possible to claim that the 'sanctity' ofcontract cannot be touched by legislation. it is thereforenecessary to examine the provisions of the Madhya PradeshAccommodation Control Act, 1961 to find out whether therespondents' predecessors-in-interest retained a heritable interestin the disputed premises even after the termination of theirtenancy.
12. Section 2(1) of the Madhya Pradesh AccommodationControl Act, 1961 defines 'tenant' to mean, unless the contextotherwise requires a person by whom or on whose account or behalf therent of any accommodation is, or, but for a contract express or implied, wouldbe payable for any accommodation and includes any person occupying theaccommodation as a sub-tenant and also any person continuing in possessionafter the termination of his tenancy whether before or after the commencementof this Act; but shall not include any person against whom any order or decreefor eviction has been made.
The definition makes a person continuing in possession after thedetermination of his tenancy a tenant unless a decree or order foreviction has been made against him, thus putting him on par witha person whose contractual tenancy still subsists. The incidents ofsuch tenancy and a contractual tenancy must therefore be thesame unless any provision of the act conveyed a contraryintention. That under this Act such a tenant retains an interest inthe premises, not merely a personal right of occupation, will alsoappear from Section 14 which contains provisions restricting thetenant's power of subletting. Section 14 is in these terms:
Section 14. Restrictions on sub-letting.- (1) NO tenant shall, withoutthe previous consent in writing of the landlord-
(a) sub-let the whole or any part of the accommodation held by him as atenant; or(b) transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim or receive the payment of any sum aspremium or pugree or claim or receive any consideration whatsoever in cash orin kind for giving his consent to the sub-letting of the whole or any part of theaccommodation held by the tenant.
There is nothing to suggest that this section does not apply to alltenants as defined in Section 2(i). A contractual tenant has anestate or interest in premises from which he carves out what hegives to the sub-tenant. Section 14 read with Section 2(i) makesit clear that the so-called statutory tenant has the right to subletin common with a contractual tenant and this is because he alsohas an interest in the premises occupied by him. Considering theposition of the sub-tenant of a statutory tenant in England LordDenning said in Solomon v. Orwell (1954) 1 All ER 874:
When a statutory tenant sublets a part of the premises, he does notthereby confer any estate or interest on the sub-tenant. A statutory tenant hasno estate or interest himself, and he cannot carve something out of nothing.The sub-tenant, like the statutory tenant, has only a personal right or privilege.
In England the statutory tenant's right to sublet is derived fromspecific provisions of the Acts conceding this right to him; in theAct we are concerned with in this appeal, the right flows from hisstatus as a tenant. This is the basic difference between theEnglish Rent Restrictions Acts and the Act under consideration andsimilar other Indian statutes. In a Special Bench decision of theCalcutta High Court, Krishna Prosad Bose v. Sm. Sarajubala Dasi : AIR1961Cal505 , , Bachawat, J., considering the questionwhether a statutory tenant continuing in occupation by virtue ofthe West Bengal Premises Rent Control (Temporary Provisions)Act, 1950 could sublet the premises let to him, said:
The Rent Control and Tenancy Acts create a special world of their own.They speak of life after death. The statutory tenancy arises phoenix-like out ofthe ashes of the contractual tenancy. The contractual tenant may die but thestatutory tenant may live long thereafter. The statutory tenant is an ex-tenantand yet he is a tenant.
The concept of statutory tenancy under the English Rent Acts andunder the Indian statutes like the one we are concerned with inthis appeal rests on different foundations. It must therefore beheld that the predecessors-in-interest of the present respondentshad a heritable interest in the premises and consequently therespondents had the right to prosecute the appeal in the HighCourt. Mr. Gupte's first submission thus fails.'
He also relied upon the judgment in the case of Mam Chand Pal v.Shanti Agarwal (Smt.) reported in : [2002]1SCR1032 : [2002]1SCR1032 . In this case it hasbeen held that a very rigid or technical view should not be taken inrespect of deposit of rent. It has been held that if the tenant hassubstantially complied with the provisions then the benefit of the statuteshould be given to the tenant. Mr. Sudhir Kumar Gupta submitted thatthe Rent Control Act was a beneficial legislation and therefore it must beliberally interpreted in favour of the tenant.
12. On the other hand, Mr. Upadyaya, the learned counsel for thelandlord-Respondents submitted that the Appellants were not thetenants. He submitted that the tenancy of A.K. Gaur had beenterminated by a Notice dated 29th September, 1966. He submitted thatthereafter Shri A.K. Gaur was not a tenant. He submitted that at thetime when the said Act came into force Shri A.K. Gaur would not havebeen a tenant as no rent was payable by him. He submitted thattherefore the Appellants also would not be tenants. He relied on thecases of Anand Nivas Private Ltd. v. Anandji Kalyanji Pedhi and Ors.reported in : [1964]4SCR892 and Jagdish Chander Chatterjee v. ShiKishan : [1973]1SCR850 . In both these cases it has beenheld that a person in occupation after termination of tenancy has noestate or interest in the premises occupied by him.
13. We are unable to accept this submission of Mr. Upadhaya. InJagdish Chander's case the ratio laid down in Anand Nivas's case wasapproved. In Damadilal's case (supra) both these decisions have beenconsidered and the principles laid down therein have been disapproved.Damadilal's case lays down that the provisions of the concerned statutehave to be looked at in order to ascertain what the rights are availableunder the statute. The definition of a 'tenant' as contained in Section3(a) of the said Act includes the heirs and legal representatives residingwith the tenant at the time of his death. Admittedly, the Appellantswere residing with A.K. Gaur at the time of his death. On the cominginto force of the new Act, even though the tenancy had beenterminated, rent was payable on behalf of Shri A.K. Gaur and thereforehe would have been a tenant. On his death the Appellants who wereresiding with him at the time of his death would be tenants.
14. Mr. Upadhaya then submitted that the High Court was right inconcluding that even if Section 39 applied the Appellants had notdeposited the entire amount of the rent and interest. He pointed outthat the trial Court had fixed the rent at Rs. 100/- per month. Hesubmitted that the Appellants took a risk in depositing rent bycalculating it at the rate of only Rs. 80/- per month. He submitted thatonce the trial Court fixed the rent at Rs. 100/- per month there wasshortfall in deposit and thus the Appellants could not be said to havedeposited the entire amount of rent. He submitted that even otherwisethe interest had been paid only on the difference of Rs. 20/-, eventhought the deposits at rate of Rs. 80/- per month were not on time. Hesubmitted that therefore the High Court was right in confirming thedecree of eviction passed by the trial Court.
15. We find that the deposits of rent at the rate of Rs. 80/- per monthwere not on time. The first deposit was on 29th April, 1967 (for theperiod from 1st October, 1966 to 31st March, 1967). Thus from October1966 to March 1967 there had been no deposits. Interest would havebeen payable on this delayed payment. Admittedly this interest amounthad not been deposited. The second deposit was only on 6th October,1967 (for the period from 1st April, 1967 to 30th September, 1967).Even here no interest had been deposited for the delayed payments.The third deposit is on 25th April, 1968 (for the period from 1st October,1967 to 31st March, 1968). Here again interest had not been depositedfor the delayed payments. More importantly, the Appellants chose todeposit at the rate of Rs. 80/- per month when the actual rent was Rs.100/- per month. By choosing to deposit at the rate of Rs. 80/- permonth they took a risk that if the Court did not accept their contentionsthere would be no full deposit. The trial Court in its decree dated 12thAugust, 1980 held that the rent was Rs. 100/- per month. This portionof the decree has not been challenged. Once it was held that the rentwas Rs. 100/- there was no deposit of the full rent within one month ofthe coming into force the said Act as envisaged by Section 39. Thus onthis ground the High Court was right in confirming the decree foreviction.
16. We therefore see no reason to interefer. The Appeal standsdismissed with no order as to costs.
17. Mr. Sudhir Kumar Gupta applies for time to enable his clients tovacate. We grant time of 4 months from today for the Appellants tovacate the premises on their filling in this Court within 3 weeks fromtoday the usual undertaking.