JUDGMENT
S.U. Khan, J.
1. This is tenant’s writ petition arising out of suit (S.C.C. Suit No. 6 of 1991) filed by landlord-respondent against him for ejectment from the tenanted accommodation and for recovery of arrears of rent and damages for use and occupation. The ejectment was sought on the ground of default and material alteration. The suit was decreed and revision of the tenant was dismissed against which tenant-petitioner filed Writ Petition No. 38691 of 1996. The said writ petition was allowed on 3.12.1996 and the matter was remanded to J.S.C.C. to decide as to whether deposits made by the tenant under Section 30 of U., P. Act No. 13 of 1972 (hereinafter referred to as the Act) were validly made or not and whether constructions and alterations made by tenant disfigured the building and diminished its value and utility. After remand J.S.C.C., Bijnor again decreed the suit on 2.4.1997. Revision filed against the same being Revision No. 25 of 1997 has also been dismissed on 15.10.1998 by Special Judge/Additional District Judge, Bijnor hence this writ petition.
2. According to the plaint rate of rent is Rs. 50 per month and apart from that tenant is also liable to pay house tax and water tax at the rate of 17.5% per annum. Regarding rate of rent there is no dispute. In the plaint it was stated that rent had not been paid since May, 1978 and that inspite of notice of termination of tenancy and demanding the rent dated 18.7.1991 served upon the tenant on 19.7.1991 the same was not paid to the landlord within a month from the date of receipt of notice. The tenant sent the rent through money order dated 23.8.1991, which was refused by the landlord on the ground that it was sent after one month from the date of receipt of notice. The tenant in order to bring the money order of arrears of rent sent by him within the period of one month of receipt of notice tried to stretch and contract both the ends of the same at the belated stage of the case. First the tenant tried to assert that he received the notice on 24.7.1991 and not 19.7.1991. Thereafter, tenant sought to adduce some money order coupon dated 7.8.1991 through additional evidence in revision after remand by the High Court which was rejected by the revisional court. In my opinion the courts below have rightly held that the notice was served on 19.7.1991 and not 24.7.1991 and money order was sent by the tenant on 23.8.1991 and not 7.8.1991. There is, therefore, no error in the finding recorded by the courts below that the arrears of rent were sent through money order by the tenant to the landlord after one month from the date of receipt of notice.
3. The tenant deposited rent from May, 1978 till October, 1979 in S.C.C. Suit No. 123 of 1978, which had earlier been filed by the landlord. It is also admitted to the landlord and conceded by learned counsel for the landlord that the money order for Rs. 771.25 sent by the tenant was accepted by the landlord on 7.4.1984. This included rent from January to March, 1984. The rest of the amount was probably sent towards arrears of taxes. The landlord in his notice demanded the rent with effect from May, 1978. The landlord included even the rent deposited in earlier suit (S.C.C. Suit No. 123 of 1978) and the amount, which had been received by him through money order on 7.4.1984 in the said notice. However, in view of Full Bench authority in 2000 (1) ARC 653, wrong demand of rent in notice does not render the notice invalid.
4. The tenant deposited the rent under Section 30 of the Act thrice. The first case was registered as Misc. Case No. 43 of 1980, second as Misc. Case No. 8 of 1985 and the third as Misc. Case No. 66 of 1991. It is the deposit under the third case which was mainly challenged by the landlord as being invalid. In fact J.S.C.C. after remand from the High Court considered only the deposit made under Section 30 of the Act in the third case and held the same to be invalid. Regarding deposits under the first two misc. cases no discussion was made by the trial court in its judgment. The revisional court has held the deposits under the first two misc. cases also to be invalid.
5. As far as the third deposit in Misc. Case No. 66 of 1991 is concerned it is undisputed that the rent from 1.7.1990 to 30.9.1991 was deposited on 19.9.1991 and the rent from 1.10.1991 to 31.3.1992 was deposited on 3.1.1992. Meanwhile, the suit giving rise to the instant writ petition had been filed on 29.8.1991. The summons of the suit had not been served upon the tenant until 3.1.1992 when he deposited the rent from October, 1991 to March, 1992 under Section 30 in Misc. Case No. 66 of 1991. After service of summons of the suit the tenant deposited the amount of tax and costs, etc. in the suit on 29.2.1992 after adjusting the amounts deposited by him as rent under Section 30 of the Act. There is no dispute that if the amounts deposited by the tenant in misc. cases under Section 30 of the Act are taken to be valid deposit then the tenant cannot be termed as defaulter or atleast he will be entitled to the benefit of Section 20 (4) of the Act. The argument of the learned counsel for landlord that interest was not deposited is not tenable as under Section 20 (4) of the Act only arrears of tax, costs and counsel’s fees was deposited and not rent as it had already been deposited under Section 30 of the Act.
6. In my opinion after refusal of the rent by landlord sent through money order dated 23.8.1991 the tenant was entitled to deposit the same under Section 30 of the Act even though he remitted the rent through money order after one month from the date of receipt of notice. Even after expiry of one month’s period from the receipt of notice liability to pay rent continued. If the landlord refused the rent after expiry of period of one month from the receipt of notice he lost his right to file suit for ejectment on the ground of default. In this regard reference may be made to AIR 2002 SC 562. In this authority Supreme Court has held that if the rent is accepted by the landlord even after expiry of period of notice then he cannot file suit for ejectment, as on the date of suit tenant is not defaulter.
7. The effect of refusal of money order by landlord of arrears of rent sent by tenant was considered in a Full Bench of this Court in Indrasani v. Din Ilahi. 1968 AWR 167 (FB). In the Full Bench decision of Gorkaran Singh v. Ist A.D.J., Hardoi, 2000 (1) ARC 653, the earlier Full Bench decision in Indrasani’s case has been approved and in para 18 of the latter Full Bench the following passages from the earlier Full Bench have been quoted :
………….”A tenant can be said to be in arrears of rent only when by non” performance of his legal obligations he has deprived the lessor of the benefit of the accrued rent.”………………We may point out that there is a clear distinction between a case in which the tenant is in arrears of rent and a case in the rent is in arrears. In the former case arrears of rent are the consequence of the default committed by the tenant in paying rent, in the latter case the arrears of rent may be due to causes attributable to be improper conduct of the landlord in refusing to accept rent lawfully tendered to him. Where such is the case and arrears of rent are due to reasons beyond the control of the tenant, the Courts will give a beneficial construction to the provisions of the Act keeping in view aims and objects to fulfil which it was enacted.”
8. In view of the above Full Bench pronouncement after the refusal of money order by landlord on 23.8.1991 rent was in arrears but the tenant was not in arrears of rent.
9. The matter may be looked from another angle also. Rent sent through money order was refused by the landlord on 23.8.1991 hence tenant was entitled to deposit the same under Section 30. The tenant deposited the rent under Section 30 on 19.9.1991 and 3.1.1992. Even though suit for ejectment had been filed prior to 19.9.1991 (i.e., on 29.8.1991) however, tenant was not aware of the filing of suit for ejectment hence deposits made by him under Section 30 on 19.9.1991 and 3.1.1992 amount to payment to the landlord under Section 30 (6) of the Act. The tenant was not therefore a defaulter regarding that rent and not required to deposit the same again under Section 20 (4) of the Act.
10. The revisional court further held that the deposits made by the tenant in first two misc. cases under Section 30 of the Act (Misc. Case No. 43 of 1980 and Misc. Case No. 8 of 1985) were also not valid. As the trial court had not considered the said question hence it was proper for the revisional court to remand the matter to the trial court to consider the validity of deposit made in both the aforesaid misc. cases. However, no useful purpose will be served by remanding the matter on this account to the trial court as in my opinion the suit was liable to be decreed on the ground of constructions made by the tenant in the building as discussed hereinafter.
11. The tenant admitted and the courts below found that tenant had made some constructions by erecting iron angles and concrete pillars. The trial court has also recorded a finding that the tenant on the chabutra in front of the shop had constructed a wooden shop and after constructing a chabutra in the path way had covered it by tin shed, which was placed upon concrete pillars and angle irons. Constructing a wooden shop or placing a tin on the existing walls may not amount to such changes as are mentioned in Section 20 (2) (c) of the Act. However constructing concrete pillars and placing tin shed thereupon does amount to such structural change. Finding has been recorded that the changes effected and constructions made by the tenant have blocked the shop in dispute and path way has also been narrowed. The constructions therefore disfigured the shop in dispute. In this regard reference may be made to 1988 (2) ARC 243 (SC). In the said authority tin shed had been fixed on pucca pillars.
12. Accordingly, I hold that the suit of the plaintiff landlord was liable to be decreed on the ground mentioned in Section 20 (2) (c) of U.P. Act No. 13 of 1972.
13. The authorities in 1990 (1) ARC 114 and 1991 (1) ARC 557, regarding material alteration have not taken into consideration the authority of the Supreme Court in 1988 (2) ARC 243 (supra). The facts in the the authority in 1990 (2) ARC 460 were different from the facts of the instant case. In the said authority construction was supported on poles embedded in ground. In the said authority concrete pillars had not been constructed.
14. Various authorities have been cited by both the sides regarding validity of deposit under Section 30 of the Act. In all these authorities it has been held that it is only valid deposit, which can amount to payment to landlord.
15. Accordingly writ petition is dismissed.
16. However, tenant petitioner is granted time till 15.9.2004 to vacate provided that within one month from today he files an undertaking before the prescribed authority to the effect that on or before 15.9.2004, he will willingly vacate and handover the possession of the properly in dispute to the landlord. Within one month from today tenant petitioner shall also pay all the arrears of rent due till 15.9.2004 after adjusting the amount already deposited by him.