judgement:
Special leave Petition (Civil) No. 6056 of 1979.
From the Judgment and Order dated 12 7 1979 of the Patna High Court in C.W.J.C. No. 1618/79.
P. Govindan Nair and S.K. Sinha for the Petitioner.
L.N. Sinha, Attorney General, V.P. Singh and R.B. Mahton for the Respondent.
The Order of the Court was delivered by KRISHNA IYER, J. An unusual grievance of a Government Pleader, the petitioner, ventilated in a writ petition, was given short shrift by the High Court in a laconic order, but undaunted by this summary brevity the petitioner has pursued his case to this Court under Article 136.
In utter nudity, his case is a claim of monopoly of all government cases in the Patna District, including lucrative land acquisition litigation, as part of the professional 'estate ' of a Government Pleader.
The prospective cash value of this heavy crop of cases is estimated by him to be around one lakh of rupees and this secret is perhaps at the back of this lawyer 's litigation.
Sri Govindan Nair, appearing for him, has, however, argued that his client 's claim as the sole representative of Government in courts is not a legal cover for seeking lucre but for vindicating the inviolability of the high public office of Government Pleader by politicking men in the Secretariat or by practitioners of favouritism dressed in 'little brief authority ', a deeper issue in which the Bar has a stake and the Bench must also be concerned.
We wholly endorse the view that at some vital levels of justice, the Besh Bench may hang limp if the Bar does not represent.
Justice to his office, not love of rupees, was urged as the respectable motivation for his persistent litigation, Maybe.
761 The fabric of facts, on which the grievance in law rests, may be appreciated first.
The petitioner was admittedly the Government Pleader for the Patna District, 'authorised to represent ' Government in all the civil cases.
During the currency of his term a plurality of nine Assistant Government Pleaders was appointed and one of them was put in charge of a bunch of land acquisition cases.
The petitioner was requested to make over those briefs to the new nominee.
Thereupon, the petitioner challenged the power of Government, like any other litigant, to appoint any other lawyer except under him and never by excluding him.
He went to the extent of writing to Government: "I am, therefore, unable to comply with your instruction in allowing any Assistant Government Pleader to work in this case.
I shall myself conduct this case and I have enough time for it.
" Government wrote back that in future he would not be given such cases.
Chagrined by this loss of income and mayhem to his monopoly he rushed to the High Court for the universal panacea of a writ.
The chemistry of Article 226 is governed by severe rules, and the High Court declined to dispense the magic remedy.
So he has sought special leave from this Court but Article 136 has its own conditions and limitations.
Sans substantial question of law of public importance which deserves to be decided by the Supreme Court or at least flaw in law which is fraught with manifest injustice, there is no other open sea same for this House of Justice.
That password has not been uttered here, despite exercises in professional martyrdom the petitioner claims to have suffered, and so we close the door but by a speaking order since counsel 's arguments have centered on the peril to the public office of Government Pleadership with potential menace to the administration of justice.
Mystic muteness, however correct, may sometimes mislead when plain speech may finally silence.
What is the gravamen of this Government Pleader 's legal grievance ? His economic grievance, however much he may hide it, is the prospective loss of fee from land acquisition cases which were spirited away.
This 'commercial ' aspect is an unhappy temptation against which the legal profession must take care.
Having due regard to the rhetoric and reality surrounding the profession, is an avidity for briefs, because they yield a lakh of rupees by way of fees, a clean linen to be washed in court ? What, in essence, is the orientation of the bar ? 'Geared to the people or ' a conspiracy against the laity ? 'The politicisation of government pleadership which is a public office and the lucre loving appetite for law offices, in the absence of a wholesome ceiling on lawyer 's fees, 762 are issues of moment in a developing society controlled by the politics of skill and enjoying a legal monopoly.
The State of Bihar, like many other States in the country, has an enormous volume of litigation.
Government litigation policy is vital for any State if resources are to be husbanded to reduce rather than increase its involvement in court proceedings.
It is lamentable that despite a national litigation policy for the States having been evolved at an all India Law Ministers ' Conference way back in 1957 and despite the recommendations of the Central Law Commission to promote settlement of disputes where Government is a party, what we find in actual practice is a proliferation of government cases in courts uninformed by any such policy.
Indeed, in this country where government litigation constitutes a sizeable bulk of the total volume, it is important that the State should be a model litigant with accent on settlement.
The Central Law Commission, recalling a Kerala decision, emphasised this aspect in 1973 and went to the extent of recommending a new provision to be read as Order 27 Rule 5B.
The Commission observed: "27.9.
We are of the view that there should be some provision emphasising the need for positive efforts at settlement, in suits to which the Government is a party.
27.10.
With the above end in view, we recommend the insertion of the following rule: 5 B(1) In every suit or proceeding to which the Government is a party or a public officer acting in his official capacity is a party, it shall be the duty of the Court in the first instance, in every case where it is possible to do so consistently with the nature of the circumstances of the case, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject matter of the suit.
(2) If in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub rule (2) is in addition to any other power of the court to adjourn the proceedings.
" The relevance of these wider observations is that avoidable litigation holds out money by way of fees and more fees if they are contested 763 cases and this lures a lawyer, like any other homo economics, to calculate income on a speculative basis, as this Government Pleader has done in hoping for a lakh of rupees.
We have been taken through the Bihar Governments rules for fees of Government Pleaders in subordinate courts.
Rule 115 appetises and is unrelated to the quantum or quality of work involved nor the time spent.
Ad valorem calculation in filing fees for land acquisition cases has a tendency to promote unearned income for lawyers.
The petitioner here has presumably fallen victim to this proclivity.
The time has come for State Governments to have a second economic look not only at litigation policy but lawyer 's fees rules (like rule 115 in the Bihar instance) especially in mass litigation involving ad valorem enormity and mechanical professionalism.
Even a ceiling on income from public sector sources may be a healthy contribution to toning up the moral level of the professional system.
After all, the cost of justice is the ultimate measure of the rule of law for a groaning people.
Government and other public sector undertakings should not pamper and thereby inflate the system of costs.
Maybe, this petition would not have been filed had the prospect of income without effort not been offered by Government Rules.
A closer look at the legal stand may be helpful.
The manifest injustice pleaded by the Government Pleader (the petitioner) is that the official income, expected from this heavy harvest of cases, of Rs. 1 lakh was being taken away by a brother practitioner.
In support of this alleged injustice, he has pressed into service section 2(7) of the Code of Civil Procedure which runs thus: "2(7). 'Government Pleader ' includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader.
" Manifestly, this is an inclusive definition and, read alongwith Order 27 Rule (4) and (8) B(c), clearly yields the inference that Government may have as many Government Pleaders as it likes to conduct its cases even as any client, who has a crowd of cases to be conducted, my engage a battery of lawyers.
Government is in no worse position that an ordinary litigant and is not bound to encourage monopoly within the profession.
Indeed, the root cause of the petitioner 's desire to corner all the litigation of the Government is that its policy of legal remuneration has no distributive bias nor socially sober ceiling.
Some States have already adopted such a 764 policy.
Indeed, the State must evolve a policy in regard to its Law Officers which concedes to counsel freedom to recommend settlement of cases if they feel it just to do so and further practises distributive justice which preempts the need for adjournment because of absence of counsel and, lastly, sets a limit on the total fee payable for government work executed.
Section 2(7) of the Code of Civil Procedure being an inclusive definition allows any number of Government pleaders.
It vests no sole control on one Government pleader over others and Government is perfectly free to put a particular Government pleader in charge of particular cases.
Each one of them is a Government Pleader and may depute other lawyers and exercise control over such surrogates.
In this view, there is no error in the summary despatch deservedly given by the High Court to the writ petition whose main merit was daring novelty.
We must state that the learned Attorney General, appearing for the State, was critical of a lawyer asking for or clinging to briefs and counsel for the petitioner (a former High Court Chief Justice) rightly slurred over the pecuniary part of the petition and veneered his submissions with the law of the high office of government pleadership.
We fully appreciate the perspective presented by counsel.
But before we come to that, let it be bluntly stated that if Government does an act offending the public office filled by a Government pleader what becomes the incumbent in the land of Gandhi is a dignified renunciation of office, not a chase for the lost briefs through the 'writ ' route.
Moreover, the legal position is plain.
As explained earlier, a bunch of Government pleaders is perfectly permissible consistently with Section 2(7) and Order 27 rule (4) Civil Procedure Code.
Nor do the Bihar rules regarding government pleaders help.
They are purely administrative prescriptions and serve as guidelines and cannot found a legal right, apart from the fact that they do not contradict Government 's power to appoint more than one Government Pleader.
Allocation of work or control inter se is an internal arrangement and we see no error even in that behaviour.
Not to have provided more government counsel when the volume of litigation demanded it, would have clogged the dockets in Court and helped one pleader to corner all the briefs without reference to expeditious or efficient disposals.
Be that as it may, one of the major streams of litigation in which government finds itself entangled flows from land acquisition. 'The States ' developmental projects which necessarily must be large, involve acquisition of lands on a large scale.
Bihar is no exception.
Since com 765 pensation claims come in considerable number before the Civil courts, several lawyers have to be engaged by the State for expeditious attention to its court litigation.
The State, appreciating this need and with a view to help the court liquidate the docket explosion, appointed more than one government pleader for every District, depending on the case flow.
Thus, Government Pleaders and Assistant Government Pleaders were appointed according to administrative rules of the State.
Each one is a Government Pleader under Sec.
2(7), Code of Civil Procedure.
It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge.
It is in the best interest of the State that it should engage competent lawyers without hunting for political partisans regardless of capability.
Public offices and Government Pleadership is one shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum.
After all, the State is expected to fight and win its cases and sheer patronage is misuse of power.
One effective method of achieving this object is to act on the advice of the District Judge regarding the choice of Government pleaders.
When there were several thousand cases in the Patna courts and hundreds of cases before a plurality of tribunals, it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders on its behalf, for the sake of the lucrative practice of a single government Pleader.
It is inconceivable how he would have discharged his duties to the court and to his client if this crowd of land acquisition cases were posted in several courts more or less at the same time.
Adjournment to suit advocates ' convenience becomes a bane when it is used only for augmentation of counsel 's income, resisting democratisation and distributial justice within the profession.
These principles make poor appeal to, those who count, which is a pity.
Coming to the larger submission of counsel for the petitioner, we do recognise its importance in our era of infiltration of politicking even in forbidden areas.
A Government pleader is more than an advocate for a litigant.
He holds a public office.
We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran vs Alagiriswami and regard the view there, expressed about a Government Pleader 's office, as broadly correct even in the Bihar set up. " . the duties of the Government Pleader, Madras are duties of a public nature.
Besides, as already explained the public are genuinely concerned with the manner in 766 which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill.
The Rajasthan case does not take into account all the aspects of the matter.
(36) The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to the Government who are his principles and that he owes no duty to the public at all and that for that reason he would not be the holder of a Public office.
(37) It is difficult to accept this view.
The contention of the learned Advocate General may have been less untenable if the duties of the Government Pleader were merely to conduct in courts cases to which Government are a party.
But, as the rules stand, he has a number of other duties to discharge.
Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more than once before the public are interested in the manner in which he discharges his duties.
. . . (90) I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.
I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in ; The three criteria are, source of the office, the tenure and the duties.
I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible".
In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself.
After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people.
767 We dismiss the special leave petition but with a sad tag, which is the message of this martyrdom.
Professions shall not be concealed conspiracies with 'effete, aristocratic, protective coloration ', which at the same time enables one to make a considerable Sum of money without sullying his hands with a "job" or "trade".
The remarks of Tabachnik, in 'Professions for the People ', about English professions of the eighteenth century smell fresh: "One could carry on commerce by sleight of hand while donning, the vestments of professional altruism.
To boot, one could also work without appearing to derive in come directly from it.
As Reader explains: The whole subject of payment. seems to have caused professional men acute embarrassment, marking them take refuge in elaborate concealment, fiction, and artifice.
The root of the matter appears to lie in the feeling that it was not fitting for one gentleman to pay another for services rendered, particularly if the money passed directly.
Hence, the device of paying barrister 's fee to the attorney, not to the barrister himself.
Hence, also the convention that in many professional dealings the matter of the fee was never openly talked about, which could be very convenient, since it precluded the client or patient from arguing about whatever sum his advisor might eventually indicate as a fitting honorarium (1966 p 37).
The established professions the law, medicine, and the clergy held (or continued to hold) estate like positions: The three 'liberal professions ' of the eighteenth century were the nucleus about which the professional class of the nineteenth century was to form.
We have seen that they were united by the bond of classical education: that their broad and ill defined functions covered much that later would crystallize out into new, specialised, occupations: that each, ultimately, derived much of its standing with the established order in the State.
(1966, p. 23).
" The time has come to examine the quality of the product or service, control the price, floor to ceiling, enforce commitment to the people who are the third world clients, and practise internal distributive justice oriented on basic social justice so that the profession may flourish without wholly hitching the calling to the star of material amassment immunised by law from the liabilities of other occupations.
We do not suggest that lawyering in India needs a National 768 Commission right now as in England and elsewhere, nor do we subscribe to the U.S. situation on which the President and the Chief Justice have pronounced.
We quote "We are over lawyered. .
Lawyers of great influence and prestige led the fight against civil rights and economic justice.
They have fought innovations even in their own profession.
Lawyers as a profession have resisted both social change and economic reform." (President Carter, May, 1978) "We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of justices in numbers, never before contemplated." (U.S. Chief Justice Burger) Law Reform includes Lawyer Reform, an issue which the petitioner has unwittingly laid bare.
After all, as Prof. Connel states "Criticism of relatively conservative institutions in times of social questioning is hardly a new phenomenon." (Australian Law Journal, Vol. 51, p. 351) This long judicial journey vindicates the Short High Court order Dismissed.
P.B.R. Petition dismissed.

summary/full:
The petitioner, who was an Advocate, was authorised by the Government to represent it in all the civil cases in a district court.
Considering the pendency of a large number of Government cases before courts and tribunals the Government appointed nine Assistant Government Pleaders during the term of office of the petitioner as Government Pleader and asked him to make over all the land acquisition cases to one of the Assistant Government Pleaders.
The petitioner refused to comply with the Government 's instructions and stated That he would himself conduct all the cases.
The Government, however, stuck to its stand.
His writ petition impugning the Government 's decision was dismissed by the High Court.
Dismissing the petition under article 136.
^ HELD: 1.
The definition of Government Pleader contained in section 2(7) of the Code of Civil Procedure is an inclusive definition which, read along with O. 21, rr. 4 and 8(c) clearly yields the inference that Government may have as many Government Pleaders as it likes to conduct its cases.
The section vests no sole control on one Government Pleader over others and the Government is perfectly free to put a particular Government Pleader in charge of particular cases.
Government Pleaders and Assistant Government Pleaders who had been appointed according to administrative rules of the State are Government Pleaders within the meaning of the definition in section 2(7) of the Code.
Each one of them may depute other lawyers and exercise control over such surrogates.
[763 G; 764 C] 2.
The Bihar Rules regarding Government Pleaders, which are purely administrative prescriptions and which serve as guidelines and on which no legal right can be founded do not help the petitioner.
The allocation of work or control inter se is an internal arrangement and there is no error in the behaviour of the Government.
[764F G] 3.
When there were several thousand cases in the courts in the State and hundreds of cases before Tribunals it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders.
It is inconceivable how the petitioner would have discharged his duties to the court and to the client of this crowd of land acquisition cases was posted in several courts more or less at the same time.
[765D E] Ramachandran vs Alagiriswami, A.I.R. 1961 Madras 450, approved.
Despite the national litigation policy evolved by the All India Law Ministers ' Conference in 1957 and the recommendation of the Law Commission there is still a proliferation of government cases in courts uninformed 760 by such policy.
It is important that the State should be a model litigant with accent on settlement.
Time has come for State Governments to have a second look, not only at the litigation policy but lawyers ' fees rules especially in mass litigation involving ad valorem calculations in fixing fees in land acquisition cases.
[762 B; 763 CI 2.
The politicisation of Government Pleadership which is a public office is an issue of moment in a developing society controlled by the politics of skill and enjoying a legal monopoly.
It is a healthy practice that the Government appoints these lawyers after consultation with the District Judge.
Governments under our Constitution shall not play with law offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself [765 C]


judgement:
Civil Appeal No. 80 of 1977.
Appeal by Special Leave from the Judgment and order dated 4 11 1976 of the Punjab and Haryana High Court in Civil Rev. No. 226 of 1971.
Suresh Sethi (Amicus Curiae) for the Appellant.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court dated 4th November, 1976 dismissing the revision petition filed by the appellant before the High Court.
This case has rather a chequered career and travelled through various stages and finally when it came to the High Court the case was remanded and after remand another re vision petition was filed before the High Court which was heard by a Single Judge who referred it to a Division Bench as in his opinion a substantial question of law was involved in the case.
When the case went before the Division Bench consisting of Pandit and B. section Dhillon, JJ.
the two Judges differed from each other and the case was referred to a third Judge, namely, Mittal, J. who agreed with Pandit, J. and dismissed the petition.
Hence this appeal.
In order to understand the point of law involved in this case, it may be necessary to give a brief resume of the facts leading to the appeal.
It appears that the appellant defendant was a tenant of a shop belonging to one Sher Singh and was situated in Gurgaon Cantonment.
Sher Singh gave an application on 21 3 1967 under the provisions of the East Punjab Urban Rent Restriction Act 1949 (hereinafter referred to as the Act) against the defendant appellant for eviction from the shop on the ground that he had defaulted in payment of the rent and arrears for the period 9 11 1965 to 8 3 1967.
Notice of this application for 11th May 1967 was issued on the 22nd March, 1967 and was actually served on the defendant appellant on 22nd April, 1967.
on the 29th April, 1967 the defendant appellant made an application before the Senior Sub Judge who was also the Rent Controller for depositing a sum of Rs. 179.48 being the rent along with interest due.
The amount was however deposited before the Rent Controller on the 4th May, 1967.
It appears that the first date of the hearing of the 839 application was 11th May, 1967 on which date the Rent Controller made the following order: "Present: Mr. Vijay Pal Singh for the petitioner Mr. P. L. Kakkar for the respondent The respondent 's counsel Sh.
P. L. Kakkar has been informed that the petitioner has deposited Rs. 179.48 paise on 4 5 67.
Papers are filed.
" Even before this date when the amount was actually deposited by the appellant, the Rent Controller had passed the following order: "Present: Sh.
Shiv Narain Petitioner .
The rent be deposited at the responsibility of the petitioner and after that notice be issued on payment of P.F. for the respondent for 11 5 67.
" It is, therefore, manifest that in the instant case a deposit of the rent and the arrears along with interest had actually been made before the first date of hearing to the knowledge of the Court and the Court had acknowledged the fact of the deposit of the amount.
Again, on the first date of hearing i.e. 11th May, 1967 the Rent Controller informed counsel for the applicant respondent that a sum of Rs. 179.48 had been deposited.
It is, therefore, clear that the applicant respondent 1 ' was apprised clearly of the fact that the amount in question had actually been deposited and was at his disposal and he could withdraw the same from the Court of the Rent Controller whenever he liked.
Despite these facts, the Rent Controller held in its order dated the 2nd December, 1967 that the deposit was not made in accordance with the proviso to section 13(2) (i) of the Act, and, therefore, the appellant being a defaulter the application was allowed and ejectment was ordered.
Thereafter, the appellant went up in appeal to the District Judge who was the Appellate Authority under the Act which differed from the view taken by the Rent Controller and by his order dated 22nd February, 1968 having held that the deposit was valid dismissed the application filed by the respondent for evicting the appellant.
Thereafter a revision was filed to the High Court which was remanded to the District Judge for deciding the case afresh, and particularly having regard to the decision of this Court in the case of Shri Vidya Prachar Trust vs Pandit Basant Ram(l).
On remand the District Judge accepted the application of the respondent and affirmed the order of the Rent Controller directing ejectment of the appellant.
Thereafter the 840 appellant filed a revision before the High Court which, as already indicated, had a varied career before the High Court and was ultimately decided against the appellant and in favour of the applicant respondent The three Judges of the High Court who heard the case have been greatly influenced by the decision of this Court in Shri Vidya Prachar Trust case (supra).
It appears that the previous Division Bench of the Punjab and Haryana High Court in the case of Mehnga Singh & Ors.
vs Dewan Dilbagh Rai & ors had followed the Supreme Court decision and taken the view that the deposit in the circumstances was not valid.
We have gone through the judgment of the Judges of the High Court and we are unable to agree with the interpretation placed by them oh the proviso to section 13(2)(i) of the Act.
We are also constrained to observe that the High Court has misapplied the decision of this Court in Vidya Prachar Trust case (supra) which is clearly distinguishable from the facts and circumstances of this case.
Before dealing with the point of law involved it may be necessary to extract portions of the Act with which we are concerned.
In the instant case, we are mainly concerned with section 13 of the Act which may be extracted thus: "13.
(1) x x x (2) A landlord who seeks to evict his tenant shall apply to.
the Controller for a direction in that behalf.
If the Con troller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the .
agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the application for ejectment after the due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.
X X X X X 841 The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application.
" The decision of the case mainly turns upon the interpretation of the proviso to section 13, which requires three essential conditions: (1) that there must be an application for ejectment before the Court, (2) that even after due service the tenant does not pay or tender the arrears of rent and interest at 6 per cent per annum together with costs assessed by the Controller, (3) that if the payment as required by the aforesaid two conditions is made then the tenant shall be deemed to have paid rent within the time required by law.
The last part of section 13 enjoins that where the conditions of the proviso are not fulfilled the Controller shall make an order directing the tenant to put the landlord in possession and where he is satisfied that the rent has been paid, the application of the landlord must be rejected.
Thus, the sole question which has to be determined in the instant case is as to whether or not the deposit made by the appellant was legally valid.
The grounds on which the High Court held the deposit to b invalid were (1) that the rent was deposited in the Court of the Rent Controller without there being any express provision in the Act requiring the tenant to deposit the rent in Court, (2) that even if the deposit be held to be valid since it was made not on the date of the first hearing but before that date, the deposit did not conform to the conditions required in the proviso.
Thirdly, the High Court relied mainly on the decision of this Court in Vidya Prachar Trust case (supra) and held that the deposit was not valid.
Before examining the case of this Court in the case of Vidya Prachar Trust case (supra) it may be necessary to comment on the reasons given by the High Court in rejecting the case of the appellant.
We have already indicated above that tho appellant first moved the Rent Controller for making a deposit of Rs. 179.48 and then made the actual deposit on the 4th May, 1967 i.e. to say a week before the date of the first hearing fixed by the Rent Controller.
It is also not disputed before us or for that matter also, also before the courts below that the amount deposited by the appellant consisted of not only the arrears of rent but also costs and interest as required by the proviso to section 13 of the Act.
Fourthly, it is also established that after the deposit was made before the Rent Controller he did not return the same to the appellant on the ground that he had no jurisdiction to receive it but oh the other hand directed that notice of the deposit may be given to the respondent 842 for 11 5 1967.
Furthermore, the trial court on 11 5 1967 that is the first date of hearing recorded an order that the respondent 's counsel had been informed that the amount had been deposited.
There is magical formula or prescribed manner in which rent can be deposited by the tenant with the landlord.
The rent can be deposited by placing the money in the hands of the landlord which would amount to actual tender.
The second mode of payment is to deposit the amount in the court where a case is pending in such a manner so as to make the amount available to the landlord without any hitch or hindrance whenever he wants it.
Even the Act does not prescribe any particular mode of deposit.
In fact, the use of the words "tender or deposit" in the proviso clearly postulate that the rent can be given to the landlord in either of the two modes.
(1) It may be tendered to the landlord personally or to his authorised agent or it may be deposited in Court which is.
dealing with the case of the landlord to this knowledge so that the landlord may withdraw the deposit whenever he likes.
In the instant case the appellant tenant chose the second course.
How can it be said that a deposit before the Rent Controller where the case of the landlord was sub judice would not be a valid deposit if it was in fact in existence on the date of the first hearing to the knowledge of the landlord.
The reasoning of the High Court that the rent was deposited earlier than 11 S 1967 and is therefore, invalid does not appear to us at all.
In fact, if the tenant deposits the rent even before the first date of hearing it is a solid proof of his bonafides in the matter and the Legal position would be that if the rent is deposited before the first date of hearing, it will be deemed to have been deposited on the date of the hearing also because the deposit continues to remain in the court on that date and the position would be as if the tenant has deposited the rent in court for payment to the landlord.
This is ' more particularly so when the Controller gave notice to counsel for the respondent on the first date of hearing that the amount had been deposited with the Controller.
In these circumstances, we ar, satisfied that all the conditions necessary for the application of the proviso have been completely fulfilled in this case and the High Court was not at all justified in allowing the application of the landlord and directing ejectment of the appellant.
Coming now to the case of Vidya Prachar Trust case (supra) which is the sheet anchor of the judgment of the High Court we think that it is clearly distinguishable from the facts of this case.
In the first place, although in that case also an application under section 13 of the Act had been made by the applicant for the eviction of the respondent on the ground that rent was not paid, the tenant on the first date of hearing did not tender the rent, cost and interest as required 843 by the proviso but only a part of the rent.
It is, therefore, manifest A that in the case which was being dealt with by the Supreme Court the first condition enjoined by the proviso was not fulfilled at all and on that ground alone it could be held that the deposit was not valid.
Secondly, the deposit in that case was made not before the Rent Controller under the proviso to section 13 of the Act but was made before the Judge under section 31 of the Punjab Relief of Indebtedness Act which had absolutely no application to proceedings for eviction taken under the Act.
Thus, a deposit made before some other court had no nexus with the arrears of rent for which an application for ejectment was filed before the Rent Controller.
Thirdly, it was pointed out by this Court that the tenant had deposited even on. month 's rent in advance which under the provisions of section 19 read with section 6 of the Act was an offence if the landlord had withdrawn the rent.
Thus, the tenant in that case had deposited the rent in a manner and under circumstances under which it could not be made available to the landlord even if he wanted to withdraw it because the landlord may have entailed a criminal penalty.
These are the facts on the basis of which this Court held that the deposit was not valid.
In this connection this Court observed as follows: "There is only one saving for the tenant and that is when he tenders the full rent in Court before the Rent Controller together with interest and costs.
In the present case, the tenant did tender rent but only for a portion of the period and he relied on his deposit under the Relief of Indebtedness Act as due discharge of his liability for the earlier period.
It may be stated that the deposit before the Senior Sub Judge was made not only of arrears of rent but prospectively for some future period for which the rent was then not due.
" It appears from the observations of this Court extracted above that the deposit was prima facie invalid.
This Court further observed as follows: It is impossible to think that the landlords would be required to go to the Court of the Senior Sub Judge with a view to finding out whether their tenants have deposited rent due to them or not. on the whole, therefore, we are of opinion that the deposit under section 31 of the Relief of Indebtedness Act did not save the tenant from the consequences of the default as contemplated by section 13 of the Urban Rent Restriction Act.
" 844 The effect of this observation is that the deposit was made in a wrong court and under such circumstances that the deposit could not be available to the landlord whenever he wanted.
It was against the background of these special facts and circumstances that this Court in the Vidya Prachar Trust case (supra) held that the deposit was not valid.
In the instant case we find that the deposit made by the appellant does not suffer from any such infirmities as were present in Vidya Prachar Trust case (supra).
Finally, we would like to observe that the Rent Control Act is a piece of social legislation designed to protect the tenant from eviction by landlords on frivolous, insufficient or purely technical grounds.
Even as the Act allows eviction of the tenant on the ground of non payment of arrears of rent the proviso affords sufficient protection to the tenant against eviction if the tenant deposits the rent in accordance with the proviso.
Vidya Prachar Trust case (supra) was reconsidered by this Court in a recent decision in the case of Duli Chand vs Maman Chand by a Bench of three Hon 'ble Judges of which one of us (Kailasam, J.) was a party and while distinguishing the case this Court made the following observations: "We need not deal with all the contents that have been canvassed on both sides.
Nor do we feel the necessity of reconsidering the decision in Vidya Prachar Trust vs Basant Ram because on facts, the instant case is clearly distinguish able from that case.
Here, before us, the rent for the months of February, March and April 1964 was deposited by the tenant to the credit of the landlord in the very court of the Rent Controller in which the landlord subsequently filed the eviction petition.
The deposit lying in the Treasury was in the legal custody and control of the court of the Rent Controller, and at the first hearing, if not earlier, the landlord was informed that he was entitled to withdraw that deposit.
Thus, even if the tenant had obtained the order of the Rent Controller for making the deposit, by referring to section 31 of the Relief Act, the fact remained that the money was in custodia legis and could be ordered to be paid to the land lord there and then by the Court at the first hearing.
" It was further held by this Court that where the tenant makes the deposit of the arrears of rent and interest informing the landlord at the 845 first hearing then the requirement of the law has been sufficiently complied with.
In this connection, the Court observed thus: "The tenant by making deposit of the arrears of rent and interest and costs and informing the landlord at the first hearing that he could receive the same from the Court, had substantially complied with the requirement of the said.
proviso.
" In the instant case w, have already pointed out that the appellant had fulfilled all the conditions of the proviso and had deposited the rent arrears, costs and interest on the first date of hearing and he, therefore, complied with all the requirements of the proviso and was, therefore, entitled to the protection given by the statute.
In view of the legal opinion we have formed regarding the interpretation of proviso to section 13 of the Act it is manifest that the judgment of the High Court is legally erroneous and the case of Mehnga Singh (supra) is hereby overruled, as it had wrongly applied and misconstrued the decision of this Court in Vidya Prachar Trust case (supra).
For these reasons, therefore, we allow this appeal, set aside the judgment of the High Court and dismiss the application of the respondent for ejectment of the appellant.
In the peculiar facts and circumstances of this case the parties will pay and bear their own costs throughout.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The proviso to clause (1) of sub section (2) of section 13 of the East Punjab Urban Rent Restriction Act, 1949, states that "if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest @ 65% per annum or such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time showed in clause (i) of sub section (2) of section 13 of the Act, 1949".
In such circumstances, an order for eviction against the tenant cannot be passed.
The appellant was a tenant under the respondent landlord Sher Singh.
On 21 3 67, Sher Singh tiled an application under Section 13 of the East Punjab Urban Rent Restrictions Act, 1949 for ejectment of the appellant tenant from the tenanted shop situate in Gurgaon Cantonment, on the ground of arrears of rent for the period from 9 11 65 to 8 3 67 at the agreed rate @ Rs. 15/ pm.
The notice of the application for ejectment with the first date of hearing as 11 5 67 was served on the appellant tenant on 22 4 67.
On 29 4 1967 the appellant tenant made an application before the very same Rent Controller praying for payment of arrears of rent i.e. Rs. 178.48 for the above period computed @ Rs. 10.62 p.m., being the fair rent fixed by that Court on 20 4 67 in an earlier application for fixation of fair rent.
The said amount was actually deposited on the court of the Rent Controller on 4 5 67.
On 11 5 67 the appellant tenant tendered in the court to the landlord a further sum of Rs. 25/ being the costs and Rs. 2/ being the interest.
This was not accepted on the ground that the lender was not a valid one within the meaning of section 13(2)(i) of the Act.
This objection was accepted by the Rent Controller and an ejectment order was passed.
On first appeal the District Judge reversed the said order.
In the Revision before the High Court, the High Court remanded the matter to the first Appellate Court for fresh orders in view of this Court 's ruling in Vidya Prachar Trust vs Basant Ram [1970] 1 S.C.R. 66.
The First Appellate Court affirmed the ejectment order.
In the further revision to the High Court, the learned single Judge referred it to the Division Bench which in turn referred it to a third Judge.
The third Judge agreed with the single Judge that the payment of fair rent fixed on 4 5 67 was not a valid tender within the meaning of section 13(2)(i) of the Act.
The single Judge, therefore, dismissed the revision petition and confirmed the orders of ejectment of the courts below.
Allowing the appeal by special leave, the Court.
837 ^ HELD : 1.
Proviso to section 13(2)(i) of the East Punjab Urban Rent Restrictions Act, 1949 requires three essential conditions: (1) that there must be an application for ejectment before the Court, (2) that even after due service the tenant does not pay or tender the arrears of rent and interest at 6 per cent per annum together with costs assessed by the Controller, (3 ) that if the payment as required by the aforesaid two conditions is made then the tenant shall be deemed to have paid rent within the time required by law.
The last part of section 13 enjoins that where the conditions of the proviso are not fulfilled the Controller shall make an order directing the tenant to put the landlord in possession and where he is satisfied that the rent has been paid, the application of the Landlord must be rejected.
[841 A C] 2.
There is no magical formula or any prescribed manner in which rent can be deposited by the tenant with the landlord.
The rent can be deposited by placing the money in the hands of the landlord which could amount to actual tender.
The second mode of payment is to deposit the amount in the court where a case is pending in such a manner so as to make the amount available to the landlord without any hitch or hindrance whenever he wants it.
Even the Act does not prescribe any particular mode of deposit.
In fact, the use of the words "tender or deposit" in the proviso clearly postulate that the rent can be given to the landlord in either of the two modes.
(I) It may be tendered to the landlord personally or to his authorised agent or it may be deposited in Court which is dealing with the case of the landlord to his Knowledge so that the landlord may withdraw the deposit whenever he likes.
In the instant case the appellant tenant chose the second course.
[842 A C] 3.
A deposit before the Rent Controller where the case of the landlord was subjudice would be a valid deposit, if it was in fact in.
existence on the date of the first hearing to the knowledge of the landlord.
In fact, if the tenant deposits the rent even before the first date of hearing it is a solid proof of his bonafides in the matter and the legal position would be that if the lent is deposited before the first date of hearing, it will be deemed to have been deposited on the date of the hearing also because the deposit continues to remain in the court on that date and the position would be as if the tenant had deposited the rent in court for payment to the landlord.
[842 D E] In the instant case, all the conditions necessary for the application of the proviso have been completely fulfilled.
This is more particularly so when the Controller gave notice to the counsel for the respondent on the first date of hearing that the amount had been deposited with the Controller.
[842 E F] Vidya Prachar Trust vs Pandit Basant Ram, [1970] 1 S.C.R. explained and distinguished.
Dulichand vs Maman Chand, C.A. 1744/69 dated 27 3 79 followed Mehnga Singh & Ors.
vs Dewan Dilbagh Rai & Ors., overruled.
Observation: The Rent Control Act is a piece of social legislation designed to project the tenant from eviction by landlords on frivolous, insufficient or purely technical ground.
Even as the Act allows eviction of the tenant on the ground of 838 non payment of arrears of rent the proviso affords sufficient protection to the tenant against eviction if the tenant deposits the rent in accordance with the proviso.
[844 B C]