ORDER
1. This is a petition under Section 29 of the Delhi and Ajmer Rent Control Act, 1952 (hereinafter called the `Act') and Art. 227 of the Constitution of India against the judgment of the Additional Senior Sub-Judge dated 18th July, 1963 by which he set aside the judgment of the trial-court and remanded the case to the trial-court.
2. The petitioners are the landlords of the building in dispute. A suit for ejectment was brought by them on the allegation that the respondent was a tenant under them on a monthly rental and that he was liable to be evicted on the ground that he had failed to pay the rent. It was also claimed that the premises were required bona fide for the personal occupation by the landlord. The respondent controverter the allegations. He denied that he was the tenant under the appellant and contended that he was not liable to be evicted on any of the grounds. Along with the written statement, Rs.1400/- on account of arrears of rent and costs were deposited in court by the respondent-defendant. Thereafter an application was filed by the plaintiff-petitioner on 23rd of March, 1959 requesting that he be permitted to withdraw this amount. Notice of this application having been given to the respondent he filed reply dated 18th of April, 1959 in which it was stated that the defendant had denied that the plaintiffs are the landlords and the owners of the premises in question. It was also stated that the amount has been deposited and the plaintiffs are not entitled to realise the amount till it is decided that they are the landlords and the owners of the premises. It was, thereforee prayed that this application for withdrawal of the amount by the plaintiffs be dismissed.
3. The trial court, however, by its order dated 27th April, 1959 allowed the application of the plaintiffs to withdraw the amount as it was of the view that the defendant could not prevent the amount from being made over to the plaintiffs, once the same had been deposited in the court by him. The tenant was not satisfied with this order and took the matter in appeal. It is common ground that this appeal of the tenant was also dismissed.
4. The parties had gone on trial on the following issued:-
1. Is the suit for personal necessity?
2. Is the defendant liable to ejectment on any of the grounds mentioned in the plaint?
3. Is the defendant not a tenant of the plaintiff?
4. What is the standard rent of the premises in dispute and can it be determined in these proceedings.
It was in these circumstances that at the time of final disposal the plaintiff pleaded that the tenant was liable for eviction as he was not protected by Section 13(2) of the Act. Now one of the grounds in Section 13(1) Proviso (a) for the eviction of the tenant is that the tenant has neither paid nor tendered the whole of the arrears of rent due within one month of the date on which notice of demand of the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882. Sub-section (2) of S. 13 provides that no decree or order for recovery of possession shall be passed on the grounds specified in Clause (a) of proviso to subsection (1), if on the first day of hearing of the suit or within such further time, as has to be allowed by the court, the tenant pays in court the arrears of rent then due, together with costs of the suit. The argument of the petitioners in the trial-court was that though the amount has been deposited by the tenant on the first day of hearing but as he had objected later on to the withdrawal of the same by the landlord, sub-section (2) of S. 13 did not give him any protection and thereforee he was liable to be evicted, as he was liable to be evicted as he must be considered not to have deposited the arrears as required by the Act. The contention found favor with the trial court and he came to the conclusion that the tenant was liable to be evicted as he had not deposited the arrears of rent as required by the statute. As regards the other ground namely, the ground of personal necessity, the trial court did not decide it in view of the finding that the tenant was liable to be evicted on the ground of non-payment of rent.
5. Under issue No. 3 the trial court came to the conclusion that the defendant-respondent is a tenant of the plaintiff and decided this issue in favor of the plaintiff.
6. As regards issue NO. 4 he observed that the issue of standard rent did not arise though otherwise also he was not satisfied that there was any evidence by which, the standard rent could be fixed. The trial court, thereforee, by its judgment dated 27th of April, 1961, passed a decree for ejectment against the respondent-tenant. An appeal was taken by the tenant which was heard by the Additional Senior Sub-Judge, Delhi. The lower-appellate court came to the conclusion that as the deposit was made by the tenant without any condition, the same was in compliance with the statue and the tenant was protected by virtue of Section 13(2) of the Act. The lower appellate court also went into the question whether the defendant was a tenant of the plaintiffs and after referring to various admissions in the letters, written by the defendant, came to the conclusion that the defendant was a tenant of the plaintiff. In view of his finding that the tenant was not liable to ejectment on the ground of non-payment of rent, the appellate court by his judgment dated 18th of July, 1963 remanded the case to the trial court to determine other points which had been left undecided by the trial court. It also gave a direction that the trial court should also find out the standard rent. It is against this judgment that the present revision petition has been filed in this court.
7. During the pendency of this petition in this Court an application was filed being Civil Miscellaneous No. 1408-J of 1970 on behalf of S. Hukam Singh and S. Kartar Singh. In this application it was stated that these applicants have become the owners of the entire property by means of a deed of conveyance dated the 18th of January, 1968 and it was prayed that they may be substituted for the original petitioners. This application came up before me on 10th November, 1970 when I granted it subject to just counsel for the respondent Mr. Marwah appeared and stated that he would like to reply to the application objecting to the right of the applicant to be imp leaded. I consequently directed by my order of the same date that this Miscellaneous application be put up along with the main case and they will be heard together. Reply was filed by the respondent in which it was stated that the application for substitution of the applicants does not lie. It was also stated that the revision petition itself had become infructuous as the original petitioners are no longer landlords and the applicants cannot be substituted in place of the present petitioners. I shall have occasions to say something about this petition later on in my judgment.
8. Mr. Gurcharan Singh, the learned counsel for the petitioner-land-lord challenges finding of the lower appellate court which had held that the payment having been made in court by the tenant on the 1st day of hearing, the same was a valid tender within the meaning of Section 13(2) of the Act. The learned counsel concedes that when Rs.1400/- was paid in court, the same was deposited unconditionally. But it is urged that the benefit of Section 13(2) could not be availed of by the tenant because he later on objected to the withdrawal of this amount by the landlord. This according to the learned counsel makes the original tender a conditional one. In this connection he referred to me to a Division Bench judgment in re Jiwaana Mal v. Khushi Ram, where the tenant, deposited the rent in the court on the date of hearing but it was under protest with a prayer that it should not be paid to the landlord and it was held that this was not an unconditional tender and thereforee the requirement of the proviso to Section 13(2)(i) of the E.P. Urban Rent Restriction Act, 1949 (which is almost in similar terms of Section 13(2) of the Delhi and Ajmer Rent Control act, 1952), were not complied with. The contention is that it is not open to the tenant to first deposit the arrears unconditionally and then to object later on its withdrawal being made to the landlord and still avail of the benefit of Section 13(2) of the Act. It is suggested that in these circumstances it would amount to a conditional deposit hence no compliance with Section 13(2) of the Act.
Though it is true that the action of the tenant in objecting to the withdrawal of deposit by the landlord is hardly to be commended and to say the least is contumacious, yet the question that has still be answered is whether the requirement of Section 13(2) has been complied with in the present case or not. Now Section 13(2) specifically says that no decree or order for eviction will be passed if on the first day of hearing of the suit or within such further time, as may be allowed by the court, the tenant pays in court the arrears of rent then due together with the costs of the suit. It is not disputed that the tenant did pay in court the arrears of rent together with costs on the first day of hearing. At the time of the payment in court no condition was made either specifically or by implication that the deposit was not being made unconditionally. prima facie the requirement of paying the money in court was fulfillled when the money was paid in court on the first day of hearing. In this context the case is obviously distinguishable from the Division Bench judgment noted above. In the case of the tenant filed a written statement on 29th of October, 1949 and in that very statement pleaded that the sum which he was depositing under protest should not be paid to the landlord. It was in that situation that the Division Bench held that this was a conditional tender and did not comply with the requirement of the Rent Act.
In the present case, however, in the written statement, which is dated 21st March, 1959, it is only mentioned that the answering defendant has deposited Rs. 1400/- There is no such condition implied or even mentioned in the written statement that though the money is being deposited in the court, the same should not be paid to the plaintiff or that the court cannot deal with it in any manner it likes. It is well settled that the money deposited in a Court by a tenant under the provisions of Rent Control Act is custodia legis and is not even liable to attachment in execution of a decree and can only be dealt with by the Court Vide Roop Chand v. Gulzari, Lal, , Now, thereforee, this money which was paid in court by the defendant was custodia legis as the same was deposited without any condition on the first date of hearing. It thereforee cannot be said that the money was not deposited as required by S. 13(2) of the Act. It is at the point of time when the deposit is made that determines whether the same is conditional or un-conditional. Thus, if the tenant on the first day of hearing was to pay the money in court but with a condition he would not get the benefit of S. 13(2) even if later on he was to waive the condition. This is because the statute requires the money to be paid in court unconditionally on the first day of hearing. On the same parity of reasoning thereforee, if once the tenant pays the money in court unconditionally on the first date of hearing the said deposit becomes custodia legis and the court can deal with it in any manner it likes. mere fact that the tenant later on, whether out of spite or ill-advice chooses to put difficulties in the way of withdrawal of that amount by the landlord would not mean that the original tender, which was unconditional had ceased to be so, by subsequent act.
In Air 1955 p&h; 3596 Bhandari, C. J. held that when the tender was deposited in the court but the tenant prayed that the amount tendered should not be handed over to the landlord as certain disputes had arisen between them, the same did not amount to conditional tender and was a valid tender. The Division Bench authority in was noticed but distinguished. In Maya Ram v. Shivji Maharaj Idal Mandir Shawala (1956) 58 Pun Lr 2 Harnam Singh, J. held that statement of the tenant on the first day of hearing that he was prepared to pay the same in the presence of court in order to avoid a controversy but that it is not admitted that the petitioner is a landlord and is entitled to the amount, did not make the tender a conditional one. His Lordship, further held that in deciding whether the tender was conditional or unconditional, all that had to be seen was whether the person tendering it had made the offer conditional upon the other party doing something. The earlier case of to which Harnam Singh, J. was a party was distinguished by his Landship.
9. In the present case, apart from the fact that at the time of the deposit there was no condition imposed by the tenant at all, even in the reply to the application for withdrawal of the amount by the landlord all that was stated how the plaintiffs were entitled to be allowed to draw the amount. This was because the defendant had denied that relationship of the landlord and tenant existed between the parties. Thus no doubt hurdle was placed in the way of the landlord withdrawing the deposited amount yet it cannot be held that this subsequent action amounted to making the first deposit which was an unconditional one into a conditional one. As a matter of fact, the trail court by its order, of 27th of April, 1959 by which it allowed the landlord to withdraw the amount, had already taken a view that the deposit made by the tenant was an unconditional one. The trial court in support of its decision had relied on Oliver Ruby Brown v. G. I. P Rly. Co. and Amar Nath Misra v. Sreenarain Mansianka, : AIR1951Cal442 . In that case, however, the only point was that a deposit had been made by the judgment debtor but the same could not be paid to the decree-holder because of the application by the judgment-debtor. In these circumstances it was held that as the judgment-holder had prevented the decretal amount from reaching the decree-holder he was liable to pay interest. The authority has no relevance to the present case.
10. The second case referred to is : AIR1951Cal442 . In that case, which was under the West Bengal Premises Rent Control Act, it was observed that Section 12(2) of the Act enjoined the tenant to pay through Court within a period of one month and that this required that the money must be paid or lodged in court in sufficient time so as to reach the hands of the landlord within a month and that the obligation of a tenant does not end by simply depositing the money in court but he must see that the money to the landlord within the prescribed period. In that case, the suit was filed on 9th May, 1949 and Section 13(2) of the Act provided that if a tenant was to take benefit, he had to deposit through the court within a period of one month the arrears of rent along with the interest. Notice of the deposit was given to the landlord, on 20th June 1949 and on 26th June, 1949 the landlord became entitled to withdraw the money from the court. Bose, J. after holding that no interest under Section 12(2) of the Act was deposited and thereforee the tenant could not be benefited went on to observe that the deposit should have been made sufficiently in time so that the money could reach the tenant within one month. In that case, the observations that the money should be paid through court within one month means that the money should reach the landlord within one month was in the nature of obiter and not necessary for the decision of the case. The case was being decided on the point that interest having not been deposited the tenant was not protected. Moreover, with respect, I cannot agree that payment through court within one month should be held to mean the further requirement that it should also reach the landlord within one month. That seems to me to be adding something to the statute which is not permissible. Another distinction is and which is noticed by Bose J., namely phraseology between payment into the court and payment through court. The observations are made with regard to the phrase `payment through court' While in the present case phraseology in S. 13(2) is `pay in court'.
11. It is, thereforee, quite clear on the authorities that all that Section 13(2) requires is that the tenant pays in court the arrears along with interest and costs on the first day of hearing without any condition. It is important to note that the point of time is relevant to determine whether the tenant is conditional or otherwise is at the time of deposit. It is at that time that it has to be decided whether the tenant can be given benefit under Section 13(2) of the Act. It was not contended by the counsel for the petitioner that at the relevant time when money was paid in court, the same was in any manner conditional. The payment made in court was unconditional and thereforee it was a compliance of Section 13(2) of the Act made at the relevant point. Now subsequently the tenant did raise objections to the withdrawal of the amount by the landlord, but that could not convert a valid tender into an invalid tender because the relevant point of time to determine that had since gone by, namely 1st day of hearing and on that date admittedly it was unconditional tender.
12. Thus finding of the lower appellate court that the defendant was not liable to be evicted on the ground of non-payment of rent has to be upheld and is affirmed.
13. Mr. Marwah also addressed lengthy arguments on the question whether the applicants who have moved C. M. No. 1408-J of 1970 could be imp leaded in the revision before me. His contention was that before the eviction application could succeed the landlord, who files the application must continue to be landlord till the date of decree and even during further subsequent proceedings in appeal or revision. The learned counsel for the petitioner, however, countered this and submitted that once a cause of action had arisen to the landlord and an application for eviction had been filed, it was immaterial whether he remained a landlord subsequently or not. A decree must follow once an eviction application had been made and if the grounds of eviction are made out. The learned counsel for the petitioner had also contended that the application for substitution was only of a mere academic interest, as the original petitioners, landlords are on record and even though they may have sold the property, it will still be open to them to carry on this litigation. He submitted that Order 22, Rule 10 gives benefit to the transferee to get himself imp leaded to the pending proceedings but that did not deprive the original parties to continue the litigation as the said provision was for the benefit of the transferee. According to the learned counsel for the petitioner the present petition, thereforee would not be infructuous both on the ground that it could be continued by the present petitioners and also because applicants could be validly substituted.
14. Mr. Marwal also addressed arguments and urged that even if it was to be held that the defendant had defaulted to make payment of arrears as required by Section 13(2) yet he was not liable to eviction as he was not a tenant of the landlord and hence no order for eviction could be passed. He contended before me a it was contended in the courts below that decision on the question of his being a tenant had been wrongly decided by the lower-appellate court a it was beyond the pleadings. He referred me to the pleadings and the notice issued by the landlord in support of his contention that the case of the plaintiff had been that defendant became a tenant by operation of law, and was, in fact a tenant under the previous landlord. Findings of the courts below now are that he was not a tenant of the previous landlord but had become a tenant by his conduct and dealings with the present petitioners.
15. Mr. Marwah had contended that it was not open to the courts below to have come to this conclusion a this finding that he was a tenant by conduct was beyond the pleadings. This argument had been addressed by Mr. Marwah on the assumptions that even if I was to take a vie different from that of the lower appellate court on the question of the deposit of rent it was open to him to argue and support the judgment of the lower court on a point which had been decided against him namely of tenancy.
Mr. Gurcharan Singh, the learned counsel for the petitioners had disputed the right of the defendant to argue this point and re-open the findings given by the lower appellant court that the defendant was a tenant of the plaintiff. The counsel for the petitioners had contended that a revision petition had been filed by the plaintiff and it was not open to the defendant to re-open the findings, on the points decided against him. It was contended that Order 41 R. 22 was not applicable in revision. But even on the assumption that this provision applied to revisions, the defendant, it was urged, could not re-open that finding The argument was that if the contention of the defendant was to be accepted, this would result in the dismissal of application of the landlord on the ground that there was no relationship of landlord and tenant between the parties. This, it was submitted, would not be upholding or supporting the order of the lower appellate court but would be asking for substitution of an order entirely different from the one which has been passed by the lower appellate court. This would not be within the purview of Order 41 Rule 22, Civil P.C. assuming it was applicable in revision. Such a course was not permissible without the defendant having filed a revision, Prima facie I see force in the contention of the counsel for the petitioners.
16. Mr. Marwah had addressed arguments on this point on the assumption that the decision of the lower appellate court on the deposit of rent may be set aside by me. But a I am affirming the said finding on the point of deposit of arrears or rent, it is not necessary for me to decide whether it is open to the defendant to re-open the other findings, as the question is no longer of any material interest. I would thereforee refrain from re-opening the other findings given by the lower appellate court, and which have not been challenged by finding a separate revision petition by the respondents.
17. As regard the objection raised by Mr. Marwah to the application that applicants in C.M. No. 1408-J of 1970 be imp leaded, I find that there is no force in it. If the contention of Mr. Marwah is that ......... because of conveyance the applicants alone are entitled to maintain the present revision petition, then no objection can be taken if permission is given to them to be imp leaded to the present petition. If, on the other hand, a was contended by Mr. Marwah that the assignment had not taken place even then, the original petitioners are on record and are competent to maintain the petition. It is laid down in Sukhdip Singh v. Arjan Singh, that the person acquiring the interest of a party to legal proceedings may continue the same but it does not by itself incapacitate the original party from continuing the proceedings and the former is bound and can benefit by the steps taken by the latter. Thus the original petitioners can maintain the present petition even if they had assigned their full rights to the applicants in C.M. No. 1408-J of 1970.
18. It has also been held by the Supreme Court in Ramchander Narsey and Co. v. Wamanrao V. Shenoy 1969 Ren Cr 398 : AIR 19690 Nsc 72 that if a suit have been validly instituted the same cannot be dismissed on the sole ground that the original landlord had assigned his rights to a subsequent transferee. Their Lordships have held that once a suit have been validly instituted, a decree must necessarily follow unless the law prescribes otherwise. The argument that a arrears of rent were due to the previous landlord and by assigning they became mere debt and thereforee would not furnish a cause of action subsequently was not accepted by their Lordships. In that case they distinguished the decision of : AIR1960Cal278 which was cited by Mr. Marwah. Mr. Marwah in this connection referred me to the authority of Madan Lal v. Harkishah Lal, (1966) 68 Pun Lr 14 and contended that after the transfer was made by the original landlord the viction proceedings could not have been continued. Assuming that this authority lays down the law correctly, the present application in C. M. 1408-J of 1970 has been filed to serve this very purpose. In this very authority it has been observed that no application was made by the transferor landlord to implead the transferee or by the transferee to be imp leaded a party in these proceedings. In the absence of such an application, his Lordship held that the eviction proceedings could not be continued.
In the present case, however, C. M. 1408-J of 1970 has been filed with a specific request that the transferee of the original landlord be imp leaded a parties of the petition. If that application is allowed, the objection that the original petitioners were landlord and had transferred their rights and that there was no landlord before the Court no longer survives. This is another good reason why the application of the applicants for being imp leaded should be allowed. I may observe that the observations of the learned Judge in (1966) 68 Pun Lr 14 that the moment the property was sold by the landlord, the eviction proceedings could not continue would seem to run counter to the (to which Mahajan J. was a party) wherein it has been observed that the original party is not incapacitated from continuing the proceedings even if he has transferred rights during the pendency of the suit.
Another Division Bench of Punjab High Court in Pritam Singh v. Raja Ram, Air 1969 Punj 362 has also held that a transferee form a landlord can claim ejectment of the tenant on the ground of the substituting sub-lease which was entered into during the time of his predecessor-in-interest so long a sub-lease took place after the commencement of the Act and without the written consent of the landlord. It was sought to be urged before the Bench that the word `Landlord' must be restricted to the landlord during whose terms the sub-lease had taken place. This plea was negatived and it was held that a transferee form a landlord can maintain eviction petition and that right was not restricted to the original landlord. The observations of Mahajan J. in (1966) 68 Pun Lr 14 if meant to lay down that an application for eviction becomes incompetent if during its pendency the landlord transfers the property even though the transferee seek to be imp leaded would seem to run counter to 1969 Ren Cr 398 : AIR 1969 Nsc 782 whether their Lordships did not accept the plea that the eviction application has to fail simply on the ground that there has been a transfer of interest by the landlord after the filing of an eviction application. It has been clearly laid don in that authority that a suit validly instituted will not be defeated by the mere fact of the transfer of the original landlord. On principle also, there does not seem any justification to hold that by the transfer of the property, the eviction application which may has e been properly filed could not be proceeded by the transferee. As a tenant can take benefit of a permission having been given by the original landlord and cannot be evicted because no permission was taken from the transferee of the landlord a waheld in Air 1964 Punj 363 similarly if a proper application had been filed by the original landlord the same can be maintained and continued by the transferee of the landlord and it will not be dismissed on the mere ground that the application is no longer maintainable. This argument restricts the meaning of the word `landlord;' to the person who filed eviction application and seek to bar the transferee or even the legal representatives from continuing the application. No justification in any principle can be spelled out for such an extreme proposition. It would be seen that the judgment of Mahajan J. was based on the fact that because the transferee had not applied to he imp leaded a party. It was in that context that his Lordship took the vie that the original Lordship took the view that the original landlord had ceased to be landlord and the transferee was not before him and thereforee eviction order could not be passed. This authority thereforee cannot support the contention that applicants in C.M. NO. 1408-J of 1970 cannot be pleaded in the revision petition. I would, thereforee, direct that appellants in Civil Misc. No. 1408-J of 1970 be also imp leaded as petitioners to the Civil Revision No. 450-D of 1963 and I order accordingly.
19. In view, however of my finding of the first point in which I have upheld the order of the lower appellate court, the case has to go back to the trial court as ordered by it. The consequence is that the Revision is dismissed and the judgment of the lower appellate court is affirmed. A conduct of the defendant had been rather contumacious and not commendable, there will be no order as the courts of this revision petition.
20. The parties through their counsel are directed to appear before the District Judge on 16-1-1971.
21. Revision dismissed.