Judgment

K. JAGANNATHA SHETTY, J:- The appeal concerns the scope and construction of S. 13 sub-sec. (2)(i) proviso of the East Punjab Urban Rent Restriction Act, 1949 (called shortly as The Act). The point at issue relates to the validity of the arrears; of rent deposited by the tenant under the proviso.

2. Milkhi Ram- the respondent in this appeal is the landlord of the premises consisting of a shop at Ludhiana. In February, 1958 the shop was taken on rent by Amar Chand. The rent agreed was Rs. 45/- per month. In December, 1975 Amar Chand died. His brother Diwan Chand succeeded to the tenancy rights. In November, 1976 he also died leaving behind his widow Pushpa Devi and his minor son Yashpal. They are respondents 1 and 2 in this appeal. The landlord brought an action for eviction under S. 13 of the Act on the ground of arrears of rent, subletting etc. His case was that respondents 1 and 2 inducted Saligram respondent No. 3 as sub-tenant and delivered exclusive possession of the shop premises. The eviction was also sought on the ground that the tenant has made alterations resulting in material impairment in the value and utility of the premises. The respondents case was that the shop was taken on lease by Amar Chand as partner of the firm M/s. Amar Chand in which Amar Chand, Diwan Chand and Saligram were all partners in the business from very commencement of tenancy. They denied that Saligram was inducted as subtenant. They also refuted the allegations as to material alterations affecting the value and utility of the premises.

3. Before the Rent Controller the respondents on the first date of hearing tendered the arrears of rent, with interest and cost determined by the Controller. The amount was rendered evidently under the proviso to S. 13, sub-sec. (2)(i) of the Act. Mr. Satpal Singh the common counsel for all the respondents tendered the amount along with his statement, which reads as follows:

"I tender Rs. 2025/- as arrears of rent from 1-12-1975 to 31-8-1979, Rs. 240/- as interest and Rs. 25 / - as costs as assessed on behalf of all the respondents, total amounting to Rs. 2290/ -.

4. The landlord did not accept the amount but made the following endorsement:

"I do not accept the tender as it is neither legal nor valid. The respondent No. 3 Saligram, is a sub-tenant."

The Rent Controller at that stage did not state whether the objection of the landlord was legal and justified. Since the eviction was also based on other grounds, he allowed the parties to lead evidence on all the questions. After considering the evidence adduced by the parries, the Controller found no substance in the allegations that the tenant has made any material alteration simpering the utility of the building. On the question of original tenancy agreement, he found that the original tenant was not in the partnership firm of which Amar Chand was partner, but Amar Chand took the premises in his personal name and the tenancy was therefore personal to him. He also accepted the case of unauthorised subletting and held that respondent No. 3 was a sub-tenant inducted into the premises without consent of the landlord. On the validity of the amount tendered on behalf of all respondents including Saligram it was held that the tender was not legal and valid since Saligram was not a tenant. In other words, he held that the rent tendered by counsel for and on behalf of all the respondents was not a legal tender in terms of S. 13 sub-see. (2)(i) proviso and the undisputed tenant alone ought to have tendered the rent. With these findings the Controller accepted the eviction petition and directed the tenants eviction from the premises.

5. The appeal preferred by the tenant was disposed of on a preliminary point, that is, on the validity of the amount deposited by the common counsel for the parties on the first date of hearing of the case. The appellate authority held that the amount deposited on behalf of the three respondents was not valid since Saligram was a stranger. On