Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. From the pleadings of the parties, it is clear that new construction was completed by April, 1990 and the defendant was put in r possession of the shop room in April, 1990. Appellate Court, after considering the evidence on record has held that the monthly rent of the shop premises is Rs. 2400/- per month from the date of taking possession i.e. April, 1990. It is the case of the defendant that even after taking t!1e: <::'·, possession of newly constructed shop he has paid the rent at the rate of Rs. 700/- per month which was the old rate of rent. From April, 1994, c [2017) 3 S.C.R. the defendant claims to deposit the rent i.e. Rs. 700/- per month in the court in the miscellaneous case.
14. Section 5 of the 1972 Act, contains a heading "Bar against passing and execution of decree and order for ejection". Section 5( 1 )(e) and Section 5( 4) which are relevant for the present case are as follows: "5(1). No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy: Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:- (a)… . …….. (e) where the tenant has not paid the rent lm1fully due from him in respect of the house within a fortnight of its falling due, or (4). Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may, within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord, and on receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be ~erved on the landlord, and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section(l/ of this section. "
15. The provision of Section 5(1 )( e) clearly indicates that where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, he is not saved from ejectment. Section 5 sub-sectio11 { 4) fu11her provides that where the landlord refuses to accept the lawful rent offered by his tenant, the tenant.may, within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord.
16. In view of Clause 6 of the Agreement dated 01.08.1988 and as per findings reco~ded by the Appellate Court as well as High Court monthly rent from April, 1990 was Rs.2400/-. Taking into consideration MANIK CHAND JAIN v. MD. AHIYA [ASHOK BHUSHAN, J.] Clause 7 of the Agreement, which provided for adjustment of 50% of the rent towards advance and payment of rent at the rate of Rs.1200/-, the defendant was liable to pay rent at the rate of Rs.1200/-. The other part ofRs.1200/- was to be adjusted towards the advance made. Till the entire advance is not adjusted the rent was also not to be increased as per condition of the agreement. Thus, lawful payment which was entitled to be received by the plaintiff-landlord was Rs.1200/-. Admittedly, the defendant-tenant has paid only Rs.700/-, even after taking possession of shop in April, 1990 and deposited the same amount of Rs.700/- in the court from April, 1994. The deposit made by the defendant-tenant in the court was not the deposit of the lawful rent and no error has been committed by the courts below in holding the defendant as defaulter. The decree passed by the Appellate Court for ejectment and arrears of rent as confirmed by the High Court was based on appreciation of relevant evidence on record.
17. The submission which has been pressed by Dr. Raj iv Dhawan is non-consideration of adjustment of advance to the extent of Rs.1,82,785.95/- by the High Cou1t. Although the High Court has not considered the question of adjustment of the advance rent, but the Appellate Court has specifically considered the adjustment of the above advance. It is useful to extract the detail consideration by the Appellate Court towards the adjustment of above advance. Following has been held by the Appellate Cou1t: "It is admitted by the defendant in his written stalement !hat the defendant took possession of the newly construcled suit room in the monlh of April, 1990 and in issue No. 3 it is decided !hat the defendant is liable to pay rent to Rs. 24001 – p.m. since the 111onth of April, 1990 but the defendant has paid only at the rate of 7001- p.m. in re~pect of suit room till dale. Since the monlh of April, 1990 till July, 1999(date of filing suit) the defendant is liable to pay rent at the rate of 2400/-p.m. for a period of 112 111011/hs which comes to Rs. 2,68,8001- (Rs.24001- x 112 111011ths). But the defendant has paid the rent at the rale of 7001- p.111. for the said period which comes to Rs. 78, 4001- hence the defendant is liable to pay arrear rent of Rs.I, 90, 4001- till the monlh of July, 1999. Jn issue No. 8 it is held that !he defendant paid Rs.1,85, 785.95 in favour of plaintiff as advance and c c … – [2017) 3 S.C.R. security. So, after adjustment of said advance of Rs.1,82, 785.95 from the an'ear due of Rs.J,90,4001-, the arrear rent of Rs. 7614.05 (Rs. 1,90,.1001- – Rs. 1,82, 785.95)" remains due till the 111011/h of July. 1999. From the above, it is clear that no advance amow1t remain to be adjusted. The advance amount has already been adjusted with the monthly rent and the plaintiff is entitled to receive arrear rent of Rs. 7614.05. As the plaintiff has not clai111ed future rent, hence no relief can be granted to him for future rent. Jn view of the decision of the foregoing points, the Appeal is dismissed and the cross appeal is partly allowed with cost. The plaintiff is entitled to get the decree for ejectment of the defendant from the Schedule A premises by removing his men and materials and recovery of arrear rent of Rs. 7611.05. Prepare the decree accordingly. "
18. From the foidings of the Appellate Cou1t, as noted above, it is clear that even after adjustment of the entire advance amount still there is a default of Rs. 7614/-. The appellate Court, thus, proceeded to adjust the entire advance made by the defendant and still default having been . found decree of ejectment had been passed which needs no interference by this Court in exercise of our jurisdiction under Article 136.
19. The default on the part of defendant is also proved looking . into the matter in accordance with the Agreement dated 0 l.08.1988. We have already extracted Clause 7 of the Agreement which refers to the adjustment of the rent to the extent of 50% of the rent and further contemplates payment of 50% of rent in cash. Thus the liability of the defendant to pay the rent from the date of taking the possession in cash was Rs.1200/- with adjustment of balance Rs.1200/-. The advance was to be adjusted in accordance with the aforesaid condition. Lawful rent in cash, which was to be paid by the defendant-tenant was Rs. 1200/- per month. Right from April, 1990 till the institution of suit, defendant- tenant has claimed the payment of rent at the rate of Rs.700/- per month only. Lawful rent, thus, was not paid by the defendant-tenant to which the plaintiff-landlord was entitled to as per Agreement dated 01.08.1988. TheAgreement dated 01.08.1988 being admitted to the tenant, he cannot be heard in saying that by mere payment of Rs. 700/- per month i.e. payment at the old rate, he can be saved from the eviction. MANIK CHAND JAIN v. MD. AHIYA [ASHOK BHUSHAN, J.]
20. In view of the foregoing discussion, we are of the co11sidered opinion that Appellate Court has rightly considered the entire evidence on record and answered the issues framed by trial court correctly. The findings of the Appellate Court that defendant is defaulter affirmed by the High Court are findings of the facts based on appreciation of entire evidence. We do not find any error in the judgment and order of the Appellate Court directi1Jg eviction and arrears of rent. The High Cou11 did not commit any error in dismissing the revision. 2 I. In result, the appeal is dismissed. Devika Gujral Appeal dismissed.