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SUPREME COURT OF INDIA
K. Ramaswamy and N.P. Singh, JJ.
Civil Appeal No. 3425 of 1983
Decided On: 23.09.1993
Umesh Chand Gandhi Appellants
Vs.
Ist Addl. Dist. & Sessions Judge and Anr. Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: Joseph Vellapally, Senior Adv. and D.K. Garg, Adv.
For Respondents/Defendant: Satish Chandra, Senior Adv., Sangeeta Kumar and Vijay Kumar, Advs.
U.P. (Temporary Control of Rent and Eviction) Act, 1947 - Sections 20(2), 39 - Constitution of India,1950- Articles 226,227 - Due to error in calculation a sum of was deposited within one month leaving a deficit of - Trial Court decreed ejectment but on revision Dist Judge that appellant had substantially complied with Section 39 - A sum of was not deposited due to bonafide mistake of calculation - Though alternative remedy was available instead filed a writ petition in High Court under Article 227 in Civil Misc - Suit Petition - When matter came up before Single Judge respondent restricted his case to three contentions namely When tenant committee default in deposit of full amount within one month as enjoined under Section 39 whether court has jurisdiction to go into question of bona fide mistake of calculation or substantial compliance - Whether tenant should not be treated as a defaulter and - Whether finding of courts below that short fall in deposit made by tenant was caused by a bona fide mistake of calculation is manifestly unsustainable - Single Judge answered latter two questions against but on first question since there was a conflict of decisions for its resolution referred matter to division bench which by its order that if deposit made by a tenant falls short of amount or amounts required to be deposited under Section 39 tenant would not be entitled to principle of substantial compliance for benefit of Section 39 - Court applying principle of de minimis non curat lex if amount is found to be small which has no consequence court would be justified in ignoring said mistake by extending de minimis rule to such a case - As to what is a case deserving benefit of aforesaid rule is a question of fact to be decided in each case for which no rigid and exhaustive law can be laid down - In a case of de minimis Court ignores short fall and extends benefit contemplated by Section 39 to defaulting tenant - It will not grant any decree of amount short deposited - Defence of substantial compliance does not absolve tenant of his liability to pay entire amount - It further that whether mistake to calculate arrears could have no consequence at all and same cannot be regarded as false or misleading in a material respect and hence a tenant is required to prove his bona fide by bringing evidence of reason e.g clerical mistake in calculation etc - For getting advantage of rule of de minimis - On facts in this case division bench concluded that Court have noted that total amount which tenant was required to deposit was and there was a deficiency of - Amount of was not a small sum which could qualify requirement of getting benefit of rule of de minimis - On receipt of finding on reference Single Judge by impugned judgment allowed writ petition set aside order of appellate authority and granted decree of eviction - This appeal by special leave - Held, Court find no justification to put compliance of Section 39 in a straight jacket formula - Each case has to be considered on its own facts and it is for courts below to consider and decide on basis of factual matrix - In this case High Court found that a deficit of is not a trifle - In facts and circumstances it calls for no interference by this court - Appellant has been in possession of demised premises for commercial use as a shop - It is agreed by parties across bar that appellant be given two years time from today for use and occupation of demised premises - Court approve of consensus - Appellant shall pay market rent from - Dist Munsiff is directed to determine prevailing market rent within a period of two months from date of receipt of this order - On such determination appellant shall pay same without taking any further judicial remedy of an appeal a revision or a writ petition under Article 226 of Constitution - He should pay arrears within one month from date of determination of market rent to respondent against receipt or on his refusal to deposit amount to credit of suit till he vacates premises - Present rent shall be continued to be paid till date of determination of market rent - Arrears if any as on date shall also be deposited within a period of two months from today - It there ia ny default in payment of rent for two successive months it is open to respondent to have decree executed - Appellant shall file usual undertaking in this Court within a period of six weeks from today - Appeal Disposed Of
ORDER
1. The appellant/tenant had the demised premises on a monthly rent of Rs. 40 from Ram Lal, the landlord. Ram Lal initiated action for ejectment of the appellant in the Court of the Small Cause (District Munsif), Saharanpur under the U.P. (Temporary Control of Rent and Eviction) Act, 1947. Pending proceedings this Act was repealed and U.P. (Urban Building Regulation of Letting Rent and Eviction) Act, 1972, for short the Act came into force w.e.f. July 15, 1972. Section 39 permitted the appellant to deposit the arrears, interest accrued thereon and full costs of the suit within one month from the date of the commencement of the Act. As on date a sum of Rs. 2,048 was due. Due to error in calculation a sum of Rs. 1,944 was deposited within one month leaving a deficit of Rs. 104. The Trial Court decreed ejectment, but on revision, the Dist. Judge held that the appellant had substantially complied with Section 39. A sum of Rs. 104 was not deposited due to bonafide mistake of calculation. Though alternative remedy was available, Ram Lal instead filed a writ petition in the High Court under Article 227 in Civil Misc. Suit Petition No. 9296/79. When the matter came up before the learned Single Judge, the respondent restricted his case to three contentions, namely: (1) When the tenant committee default in deposit of the full amount within one month as enjoined under Section 39, whether the court has jurisdiction to go into the question of bona fide mistake of calculation; or substantial compliance; (2) whether the tenant should not be treated as a defaulter; and (3) whether the finding of the courts below that the short fall in the deposit made by the tenant was caused by a bona fide mistake of calculation is manifestly unsustainable. The learned Single Judge answered the latter two questions against Ram Lal but on the first question since there was a conflict of decisions, for its resolution referred the matter to the division bench which by its order dated September 10, 1982 held that "if the deposit made by a tenant falls short of the amount or amounts required to be deposited under Section 39, the tenant would not be entitled to the principle of substantial compliance for the benefit of Section 39." The court applying the principle of de minimis non curat lex held thus "if the amount is found to be small, which has no consequence, the court would be justified in ignoring the said mistake by extending the de minimis rule to such a case. As to what is a case deserving the benefit of the aforesaid rule is a question of fact to be decided in each case for which no rigid and exhaustive law can be laid down.... In a case of de minimis, the Court ignores the short fall and extends the benefit contemplated by Section 39 to the defaulting tenant. It will not grant any decree of the amount short deposited. The defence of substantial compliance does not absolve the tenant of his liability to pay the entire amount". It further held that whether the mistake to calculate arrears could have no consequence at all and same cannot be regarded as false or misleading in a material respect and hence a tenant is required to prove his bona fide by bringing evidence of the reason, e.g. clerical mistake in calculation etc. for getting the advantage of the rule of de minimis. On the facts in this case, the division bench concluded that "we have noted that the total amount which the tenant was required to deposit was Rs. 1,944 (Rs. 2,048) and there was a deficiency of Rs. 104. The amount of Rs. 104 was not a small sum which could qualify the requirement of getting the benefit of rule of de minimis." On receipt of the finding on reference the learned Single Judge by the impugned judgment dated November 11, 1982 allowed the writ petition, set aside the order of the appellate authority and granted decree of eviction. Thus this appeal by special leave.
2. 1.01 Section 39 confers right on the tenant to absolve his default and save his tenancy provided he compl
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