Bhole Nath vs Pyare Lal

K.C. Agrawal, J.—This is a Defendant''s revision u/s 115 CPC against the judgments of the court below decreeing the suit of the Plaintiff opposite party for eviction. The suit was filed by the Plaintiff-opposite party on the basis that the Defendant was the tenant of the premises in question, as he had defaulted in payment of arrears of rent, therefore, was liable to eviction. 6th of April 1973 was the first day of hearing fixed in the suit. The Defendant filed a written statement on that date; fie further submitted a tender to the court for making the deposit. The said tender appears to have been passed by the court on the aforesaid date. He admittedly did not, however, make any offer to the landlord or tendered the rent to him on the aforesaid date. The trial court decreed the suit holding that the Defendant was a defaulter and as he had not paid or tendered the rent to the landlord on the first day of hearing, therefore, he was not entitled to get the benefit of Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. Aggrieved by the aforesaid judgment of the trial court the Defendant filed the revision u/s 25 of the Small Causes Courts Act. The revision was also rejected. The Defendant has now filed this revision.

The learned Counsel for the applicant urged that the court below committed an error of jurisdiction in not giving benefit of Section 20(4) of the Act to the applicant although the requirement of the said Act had been fulfilled by him. He invited my attention to the tender which has been submitted by him in the court on 6th of April 1973. He urged that the money in pursuance to that tender was deposited by the applicant on 9th of April, 1973. He accordingly submitted that the deposit made by the applicant on 9-4-1973 would relate back to 6-4-73 and as 6-4-1973 was the first date of hearing in the suit, therefore, the courts below should have held that the Defendant having complied with Section 20(4) of the Act was entitled to its benefit. The above argument of the learned counsel for the applicant has no substance. It has not been disputed before me that the applicant did not pay or tender rent on the aforesaid date. He only got the tender passed for making the deposit in the bank. Section 20(4) of the Act requires that the tenant should unconditionally pay or tender rent to the landlord along with the damages and interest for use and occupation. As stated there is no evidence on the record of this case that the Defendant either paid or tendered rent to the landlord on the aforesaid date. Submitting the tender by the applicant to the court for depositing the money in the State Bank would not fulfil the requirements of Sub-section (4) of Section 20. It is not the passing of the tender which secures the benefit. It is the actual payment or tender of rent by the tenant to the landlord which is intended to be complied with for relieving the tenant from eviction.

Sub-section (4) of Section 20 was enacted with a view to give another opportunity to the tenant to save his tenancy, if a suit for eviction has been filed against him on the ground of default. It appears that while enacting this provision the legislature has the cases of those tenants in its view, who may not have paid the rent to their landlords despite the service of the notice of demand. But payment of rent has to be made or tendered to the landlord for deriving the benefit. There is no difficulty so far as the question of understanding the true import of the word payment is concerned. The crucial word which deserves our notice is ''tenders''. The Oxford dictionary has given the meaning of the word ''tender'' as to offer (money) in discharge of a debt or liability, formal offer made by one party to another. According. to Websters Third International Dictionary the word ''tender'' means an unconditional offer of money to pay a debt or of service to be performed in satisfaction of a debt or obligation that is made in order to save a penalty or forfeiture that would be incurred by nonpayment or non-performance, something that may be offered in payment'' From these meanings it is clear that in order to establish that money has been tendered it is necessary to prove actual offer of the amount to the landlord. It is immaterial that the landlord does not accept it. The tenant shall be deemed to have discharged his obligation the moment he offers the payment. But mere willingness on his part to pay will not be sufficient. It must be accompanied by actual production of money.

In Corpus Juris Seccundum Vol. 86 at 556 the word ''tender'' is defined as under:

Tender is the act by which one produces and offers to a person holding a claim or demand against "him the amount of money which he considers and admits to be...due, in satisfaction of such claim or demand, without any stipulation or contention.... The word tender has definite legal significance, and imparts net merely the readiness and the ability to pay or perfrom at the time and place mentioned in the contract hut also the actual production of the thing to be paid or delivered over an offer, of it to the person to whom the tender is to be made an unqualified refusal to accept.

Dealing with the principle of tender Words and Phrases Vol. 5 page 177 says:

The principle of tender is that the Defendant has been always ready and Willing to perform the contract, and that he did perform it as far as he was able by tendering the requisite money, the Plaintiff himself precluding complete performance by refusing receive it.

Considering Section 114 of the Transfer of Property Act where the word used are ''tender to the lessee'' a Division Bench of our court in Budhi Ballabh v. Jai Kishan Kendpal 1963 AWR 188 held that "mere expression of willingness to pay cannot be sufficient and cannot amount to tender. In addition to such expression of willingness it must also be established that there was ability to pay and the expression was accompanied with some overtact like presenting amount of acceptance."

The principle laid down in the above case It helpful in considering the scope of Section 20(4) of the Act.

Further, the requirement of tendering the amount to the landlord at the first hearing of the suit also establishes that offer for payment is necessary on that date and not subsequent to it. Actual deposit of money made either in the court or in the Bank after the first hearing, would not relieve the tenant from the consequence of default in payment, as such a deposit cannot be deemed having been made at the first hearing. Accordingly getting the tender for deposit of money passed from the court of the first hearing would not be sufficient. Such an effort made by the tenant would only show his willingness to deposit the rent on a future date. Even if the deposit is made thereafter pursuant to the passing of the tender on the first day of hearing that will only mean that the deposit of the rent has been made on a subsequent date. Such a deposit cannot be considered to be in consonance with Sub-section (4) of Section 20 of the Act It may also be remembered that what is necessary u/s 20(4) is that the tenant unconditionally pays or tenders to the landlord the entire amount of rent and damages of use and occupation of the building. It is wholly inconsequential that the landlord does not accept it. The benefit intended to be given by this sub-section depends upon the act of the tenant and not that of the landlord, Therefore, if a tenant proves payment or tender of rent to the landlord, he becomes entitled to the benefit of this provision. Deposit made subsequently is wholly useless for this purpose.

The golden rule of Interpretation of statutes is that the scope of provision should be understood from the words used in that Section. From the language used in this section it is not possible to infer that deposit made in the court or in the Bank in pursuance of a tender passed by a court is also within its ambit. Contrary to this where the legislature wanted to provide for deposits in the court, it made a clear provision for the same in Section 39 of the Act. Although the said section has been enacted in a different context but broadly speaking the purpose is the same. Section 39 of the Act also provides for immunity from ejectment subject to the tenant depositing rent within the time stipulated by that section. But here the legislature clearly speaks of deposit. If the intention of the legislature had been to save tenants of the category falling u/s 20(4) merely be depositing rent, it would have expressly spoken about the same.

It is also a settled rule of construction that the meaning of a word mutt take colour from the context in which it is used. Applying the said test it cannot be said that the word ''tender'' used in Section 20(4) of the Act will include a case of a tender meant for depositing the money in the bank or the court. This word as mentioned above has been used in the sense of offer of rent by the tenant to the landlord. So it is not possible to accept the contention of the learned Counsel for the applicant that what is necessary for complying Section 20(4) is deposit of rent and not payment or tender of the same to the landlord. If this contention is accepted the result will be that a tenant, who may not have money for payment at the first hearing may claim its benefit simply by getting the tender passed and depositing the same subsequently at a later date. I accordingly do not find that the trial court committed any error of jurisdiction in refusing to give benefit of Section 20(4) to the applicant.

In the result the revision fails and is dismissed with costs.

Dr. J.N. Dubey, learned Counsel for the applicant has given under-taking before me that the applicant will vacate the premises within three months from today. The Respondent is, therefore directed not to execute the decree for a period of three months from today.