Uttarakhand High Court
Vijay Kumar Agarwal ... vs Ashok Kumar Handa on 29 August, 2020
Equivalent citations: AIRONLINE 2020 UTR 530
Author: Lok Pal Singh
Bench: Lok Pal Singh
RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No.28 of 2013
Vijay Kumar Agarwal .......Revisionist/landlord
Vs.
Ashok Kumar Handa .........Respondent/tenant
Mr. D.C.S. Rawat, Advocate for the revisionist
Mr. Siddhartha Singh, Advocate for the respondent
List of cases referred:
(i) (2007) 6 SCC 555, C.C. Alavi Haji v. Palapetty Muhammed and another
(ii) (2008) 8 SCC 485, Municipal Corporation, Hyderabad vs. Sunder Singh
(iii) (2008) 12 SCC 372, Bachahan Devi and another vs. Nagar Nigam,
Gorakhpur and another
(iv) (2005) 7 SCC 211 Atmaram Vs. Shakuntala Rani
(v) (2002) 9 SCC 499, Shyam Lal vs. Rasool Ahmed
(vi) 1985 154 ITR 556 PH, Punjab Haryana High Court, rendered in the
case of Ramesh Khosla vs. Income Tax Officer
Hon'ble Lok Pal Singh, J.
Instant civil revision is directed against the judgment and decree dated 24.12.2012 passed by Additional District Judge/F.T.C. III, Haridwar in SCC case no.02 of 2007 Vijay Kumar Agarwal vs. Ashok Kumar Handa and others, whereby the suit filed by the revisionist/landlord has been dismissed.
2. Factual matrix of the case is that the revisionist is the landlord and owner of shop in dispute being situated at Ganga Ajure Hotel, Railway Road, Haridwar. Respondent was the tenant @ ` 100/- per month in the disputed shop till July, 2000. In the year 2000, as the respondent/tenant was facing difficulties in running his shop due to less space, the revisionist/landlord permitted the respondent/tenant to use a small room adjoining the shop and also constructed a floor etc. and in lieu thereof it was agreed between the parties that the respondent/tenant will 2 pay rent @ ` 2500/- per month. The respondent/tenant also agreed to accept all the terms and conditions of the tenancy and rent was enhanced from ` 500/- per month to ` 2500/- per month w.e.f. 01.08.2000. It was also stated that the respondent/tenant paid rent of ` 2500/- per month till August 2005 but thereafter he did not pay the rent. The revisionist/landlord demanded the rent from him but he started making excuses. It was stated that the respondent/tenant has not paid the rent of the suit premises for the period 01.09.2005 to 30.11.2006, amounting to ` 37,500/-. The revisionist was thus constrained to issue a registered notice under Section 106 of The Transfer of Property Act, thereby demanding the due rent and terminating the tenancy of the respondent/tenant, on expiry of the period of 30 days. As the respondent/tenant refused to receive the said notice, present suit was instituted seeking a decree of eviction and recovery of rent and damages and mesne profits against the respondent.
3. On institution of the suit, trial court issued summons to the respondent on several dates by both ways, but he avoided the service. Thereafter, the steps were taken for substituted service and the service was effected upon the respondent through publication in the daily newspaper. After service of notice through publication, the respondent appeared before the court and filed his written statement paper no.19C denying the plaint averments. He contended that he is tenant in the suit premises @ ` 100/- per month. The adjoining room was not included to extend the area of the shop. It was also stated that the shop in question is situated in a building which was earlier known as Hotel Gurudev, which is now known as Hotel Ganga Ajure and Sardar Babu Singh was in ownership and 3 possession of the said building and he is the tenant in the shop in dispute @ Rs.100/- per month since the lifetime of Sardar Babu Singh. The revisionist/landlord had purchased the shop including the adjoining hotel and shops from the owners of Hotel Gurudev and as such the respondent became the tenant of the revisionist. It was also stated that the respondent is doing tailoring business with the name and style of M/s Sky Lark Tailor in the shop in dispute. The revisionist wanted to evict the respondent from the suit premises and therefore he deliberately has not accepted the rent. It was also stated that the respondent had paid the rent upto 31.12.1996 to the previous owner and as the revisionist was not accepting rent and wanted to terminate the tenancy of the respondent, the respondent sent the rent to the revisionist through money order for the period 01.01.1997 to 31.12.2006, which was also refused by the revisionist. The respondent, thus, deposited the rent for the period 01.01.1997 to 31.12.2006 before the trial court under Section 30 (1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred as U.P. Act No.13 of 1972) and thereafter the rent was deposited till 31.12.2007 in misc. case no.77/2006. It was contended that the defendant has not committed any default in payment of rent.
4. On pleadings of parties, trial court framed the following issues in the suit:-
(i) Whether the defendant was the tenant of the plaintiff in the property in dispute @ ` 100/- per month and because of the increase in the area of the shop, the rent was enhanced to ` 2500/- per month and due to non-payment of rent w.e.f.
01.09.2005, the tenancy of the defendant has been 4 terminated by the plaintiff by a notice dated 30.11.2006?
(ii) Whether rent of ` 40415/- is due on the defendant @ ` 2500/- per month w.e.f. 01.09.2005 to 01.05.2007 and the plaintiff is entitled to receive damages @ ` 200/- per day for use and occupation of the property in disputed?
(iii) Whether there was sufficient service of notice dated 30.11.2006 on the defendant and because of which the plaintiff is entitled to get a decree of eviction against the defendant?
(iv) Whether there is no rent due on the defendant and the defendant has deposited the entire rent in the trial court?
(v) Whether the area of the shop was never increased and the area of the shop was originally 22 X 10 as pleaded by the defendant?
(vi) To what relief the plaintiff is entitled for?
(vii) Whether the notice dated 30.11.2006 is illegal?
5. Thereafter, the parties led oral and documentary evidence. In oral evidence, plaintiff Vijay Kumar Agarwal got examined himself as PW1 and Chandra Mohan Sharma as PW2. In documentary evidence, notice, endorsement of refusal of notice, carbon copy of notice dated 30.11.2006 and list paper no.20C were filed on behalf of the plaintiff. On behalf of the defendant, defendant Ashok Kumar examined himself as DW1 and in documentary evidence, original receipt of rent dated 25.08.1977 vide paper no.37C, paper no.38C, paper no.39C and paper no.40C, rent receipt paper no.41C pertaining to rent deposit in the court, receipt paper no.42C, certified copy of misc. case no.77/2006, order passed in misc. case no.77/2006, certified copy of tax assessment dated 01.04.1979 and 5 certified copy of tax assessment dated 01.04.2001, were filed.
6. After hearing the learned counsel for the parties and upon perusal of the record, the trial court decided issue nos.1 and 4 together and recorded finding that the revisionist/landlord has failed to prove the fact that the monthly rent was enhanced from ` 100/- per month to ` 2500/- per month. It was also held that the respondent/tenant has deposited the rent upto 31.12.2006 @ ` 100/- per month in the court as per law and no rent is due on the defendant. Issue nos.3 and 7 were decided together and it was held that as the plaintiff has not proved the default in payment of rent at the hands of the defendant, the notice issued to the defendant terminating the tenancy of the defendant, is illegal. Issue nos.3 and 7 were decided against the plaintiffs. On issue no.5, the trial court recorded a finding that the plaintiff has not proved the enhancement of rent to ` 2500/- per month and thus the issue regarding increase in area of shop is irrelevant. On issue nos.2 and 6, the trial court on the basis of findings recorded on other issues, held that the plaintiff's suit is liable to be dismissed. Accordingly, by impugned judgment and decree, the trial court dismissed suit of the plaintiff.
7. I have heard learned counsel for the parties and perused the entire record.
8. Having heard learned counsel for the parties and on perusal of the record, following points of determination are formulated to adjudicate the present lis:-
(i) Whether the respondent/defendant is the tenant in the shop in dispute at the monthly rent of ` 100/- or 6 the rent was enhanced to ` 2500/- per month from May 2000?
(ii) Whether the tenancy of the defendant was terminated by a legal notice dated 30.11.2006?
(iii) Whether the respondent/tenant has committed default in payment of rent for more than four months?
9. In order to appreciate the controversy, it would be necessary to place the relevant provisions of Sections 20 and 30 of the Act as also the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:-
"Section 20. Bar of suit for eviction of tenant except on specified grounds. - (1) Save as provided in sub- section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:
......
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
..............
(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such 7 damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:
Section 30 - Deposit of rent in court in certain circumstances. - (1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.
Order XV Rule 5 CPC (as amended by State of U.P and applicable in the State of Uttarakhand) "5. Striking off defence for failure to deposit admitted rent, etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence.8
Explanation 1.- The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2.- The expression "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Explanation 3.- (1) The expression "monthly amount due"
means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account.
(2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:
Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:
Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."9
Point of determination No.(i) - Whether the respondent/defendant is the tenant in the shop in dispute at the monthly rent of ` 100/- or the rent was enhanced to ` 2500/- per month from May 2000?
10. In the plaint, revisionist/plaintiff has averred that the respondent/defendant was tenant in the shop prior to his ownership in the shop @ ` 100/- per month. On the request of the respondent/defendant, an adjoining room was included in the shop and the rent was enhanced to ` 2500/- per month. Revisionist/landlord examined himself as PW1 and deposed that both the parties i.e. the landlord and the tenant had agreed to enhance the rent @ ` 2500/- per month from May 2000 and he used to give receipt of rent of ` 2500/- per month in a paper to the respondent/tenant. PW2 Chandra Mohan Sharma, Manager of the revisionist/the plaintiff was also examined, who supported the plaint averments and stated that a small room behind the shop was included in the shop and some development was made in flooring and other repairing work of the shop was done and rent was enhanced to ` 2500/- per month and the respondent/tenant was also paying ` 2500/- per month. He further stated that in the absence of the revisionist/landlord, sometimes the respondent/tenant used to handover ` 2500/- to him towards monthly rent. Though, the revisionist/landlord adduced oral evidence in regard to enhancement of rent to ` 2500/- per month but neither he could specify the date on which the alleged oral agreement, enhancing the rent, was entered into between the parties nor did he file any receipts showing rent of Rs.2500/- per month, whereas on the other hand, the respondent/tenant by oral and documentary evidence, 10 proved the fact that the rent was Rs.100/- per month and it was not enhanced. The respondent/tenant filed the rent receipts to the tune of Rs.100/- per month which has not been specifically denied by the revisionist/landlord. In the above circumstances, it is held that the revisionist/plaintiff has failed to prove the rent @ Rs.2500/- per month. Point of determination (i) is accordingly disposed of.
Point of determination No. (ii) - Whether the tenancy of the defendant was terminated by a legal notice dated 30.11.2006?
11. By oral and documentary evidence, revisionist/landlord has successfully proved the fact that a legal notice u/s 106 of Transfer of Property Act was sent to the defendant by registered post, demanding arrears of rent and termination of tenancy, which was refused by the respondent/tenant. In this regard, the revisionist/landlord filed registered A.D. notice sent to the respondent/tenant wherein the Postman has specifically made an endorsement dated 06.12.2006 "ys d kj". On the other uslsba hand, the respondent/tenant has not filed any evidence in rebuttal nor he has specifically denied that the postman came to his house to serve the notice. Besides this, record of the trial court reveals that respondent/tenant not only refused to receive the notice sent by the revisionist/landlord under Section 106 of the Transfer of Property Act, but he also avoided the summons sent by the trial court in the suit. On several dates, notices were issued to the respondent/tenant in the suit by both ways, but the same remain unserved. Subsequently, the service was effected upon him through publication in a daily newspaper. Such conduct of the respondent/tenant shows that he deliberately refused to receive the notice sent by 11 the revisionist/landlord. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him.
12. In C.C. Alavi Haji v. Palapetty Muhammed and another1, Hon'ble Apex Court has held as under:
"14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (vide jagdish Singh v. Nathu Singh, 1992 (1) SCC 647; State of M.P. v. Hiralal, 1996 (7) SCC 523 and V. Raja Kumari v. P. subbarama Naidu, (2004) 8 SCC 774). It is therefore manifesh that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice un- served."
13. In regard of refusal of notice by the addressee, there is also a decision of Hon'ble Punjab Haryana High Court, rendered in the case of Ramesh Khosla vs. Income Tax Officer6, wherein it was held as under:-
12"The stand of the respondent authorities with regard to the actual posting of the notices in a registered cover as detailed above is neither disputed nor refused on behalf of the petitioner. Further, it is needless for me elaborate is any detailed manner that even in cases where the address has refused to accept the registered envelops tendered to him by the postman, he is to be imputed with the knowledge of the contents thereof and in spite of that refusal, the notice or the contents of the envelop are to be deemed to have been duly served on the addressee. For this view of mine, I seek support from the observations of their Lordships of the Supreme Court in Har Charan Singh v. Shiv Rani AIR 1981 SC 1284. Thus, in the instant case, the notices which have been duly dispatched to the petitioner through registered post and not been received back or received back or received back as "refused" have to be taken as duly served on the petitioner. I have no hesitation in rejecting the stand of the petitioner when he says that none of these notices was received by him. Firstly, he has disclosed no reasons in his petition as to why the said notices sent to him through registered post should not have normally reached him. Secondly, it is the categoric stand of the respondent authorities that in response to all registered notices issued to him under s. 143 Act during the course of assessment of tax of the various years, he always responded to the same. Thirdly, I see a deliberate attempt on the part of the petitioner to avoid payment of tax on one pretext or the other. In the normal course, he being an assessee and a person running a well established concern as owner or proprietor, is supposed to be in touch with his tax matters. In the given circumstances of this case, it is difficult to accept his feigned ignorance of those matters or eight long years. As per the averments in the petition itself, it was in January, 1979, that he came to know that certain demands had been raised against him and on his asking, his chartered 13 accountants inspected the relevant records in the office of the Income Tax Office, Jullundur, and after collecting the detailed information as referred to in annexure P-1 (22 items covering the the entire amount of Rs. 3,16,152) addressed a letter on February 29, 1979 (annexure P-2), to the CIT, Jullundur, offering pay the arrears of the "valid income the demand due" in monthly instalments of Rs. 5,000 each. This approach to the Commissioner was necessitated for the petitioner because he wanted to go abroad and for that purpose he needed the I.T. Verification Certificate (I.V.C.). In reply to this letter of his, the Department agreed to accept to accept the payment in proposed instalments provided the petitioner will not dispute the validity of the demand and service of demand notices and challans on him or, in other words, accepted the and genuineness of the demands against him. In spite of this correspondence and being fully aware of the details of the demands against him, he did not choose to prefer any appeal to the higher authorities against the said demands and rather after dilly dallying the matter for some time filed this petition in February 15, 1980. It cannot possibly be disputed in the light of the provisions of s. 249 of the Act that he could reasonably plead, had he been truthful, for condonation of dealy in filing of these appeals or could very well treat the date of intimation or acquisition of knowledge of the demands against him as the starting point of limitation against him. He did not choose any such course apparently for the reason that he was not in mood to pay the tax due from him."
14. In view of the settled proposition of law, there is presumption of service of notice on respondent/tenant. It is accordingly held that tenancy of the respondent/tenant was terminated by a legal notice dated 30.11.2006.
14Point of determination No. (iii) - Whether the respondent/tenant has committed default in payment of rent for more than four months?
15. In the written statement, it was the admitted case of the respondent that the rent was due upon him for the period 01.01.1997 to 31.12.2006, which he deposited in the court of Civil judge (J.D.), Haridwar in misc. case no.77 of 2006 under Section 30(1) of U.P. Act No.13 of 1972. Thereafter, he also deposited the rent till December 2007 @ ` 100/- before the trial court. Record reveals that during the pendency of the suit, the respondent/tenant had moved an application under Order XV Rule 5 read with Section 151 of CPC being paper no.25-C dated 15.02.2008 before the SCC court stating therein that he has already deposited the rent upto December 2007 and for subsequent six months he gave ` 600 @ ` 100/- per month to the clerk of his counsel on 05.02.2008 but when he met his counsel on 10.10.2008 to receive the deposit slip then he was informed that the rent could not be deposited as his clerk fell ill. Thus, he prayed that the delay in tender of rent may be condoned and he may be permitted to deposit the rent. Copy of the said application was not served upon the plaintiff. On the said application, the trial court passed an order "put up on the date fixed". On the next date fixed, the respondent/tenant moved an adjournment application, which was allowed by the court at the cost of ` 1,000/-. Thereafter, on several dates, the suit was adjourned at the request of the defendant/respondent and the application moved under Order XV Rule 5 r/w Section 151 CPC was not pressed and it remained undecided.
16. From the above, it is evidently clear that notice dated 30.11.2006 was issued to the respondent to whom 15 he refused to receive. Despite service of notice presumed to be effected on the respondent, neither he vacated the suit property nor did he pay the due rent. The revisionist, thus, constrained to institute the suit. In the suit again, the respondent tried his best to avoid the service of summons but he was served through publication. Since his appearance before the court below, he has not deposited any rent in the suit. Any amount deposit by the revisionist u/s 30 (1) of the U.P. Act No.13 of 1972 before or after institution of the suit will not absolve the respondent from his liability of depositing the rent before the competent court. No rent has been deposited by the respondent before the Judge, SCC. In such circumstances, the deposit made by the respondent in misc. case no.77 of 2006 is not a valid deposit.
17. In the case of Atmaram Vs. Shakuntala Rani4, Hon'ble Supreme Court emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with the condition failing which, he can not take advantage of the benefit conferred by such a provision. It has been further emphasized that the rent must be deposited in the court where it is required to be deposited under the Rent Control Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently, the tenant must be held to be in default. Relevant paragraphs of the said judgment are extracted hereunder:-
"19. It will thus appear that this Court has consistently taken the views that in Rent Control Legislations if the tenant wishes to take advantage of the 16 beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.
20. Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent a written receipt for the amount paid to him, signed by the landlord or his authorized agent. It is also open to the tenant to remit the rent to his landlord by postal money order. The relevant part of Section 27 of the Act reads as under :-
"27. Deposit of rent by the tenant. (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner :
Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.
(2) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely :-
(a) the premises for which the rent is deposited with a description sufficient for identifying the premises ;
(b) the period for which the rent is deposited ;
(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent ;
(d) the reasons and circumstances for which the application for depositing the rent is made ;
(e) such other particulars as may be prescribed. (3) On such deposit of the rent being made, the Controller shall send in the prescribed manner a copy or copies of the application to the landlord or persons claiming 17 to be entitled to the rent with an endorsement of the date of the deposit.
(4) If an application is made for the withdrawal of any deposit of rent, the Controller shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed."
21. The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default."
18. In view of the above, it is abundantly clear that the tenant has not only committed default in payment of rent for not more than four months but it is a case of continuous default of non-payment of rent by the tenant.
19. The purpose of enactment of sub-section (4) of Section 20 of the U.P. Act No.13 of 1972 is that an unscrupulous landlord may not seek eviction of a bonafide tenant on the ground of default in payment of rent. In cases, where the rent is deliberately refused by the landlord with malafide intention to evict the tenant, sub- section (4) of Section 20 of the U.P. Act No.13 of 1972 comes into rescue of a bonafide tenant to save his tenancy whereby he has been permitted to deposit or tender the rent at the first date of hearing but in the instant case the 18 respondent has not availed such remedy. Here, the respondent/tenant has neither claimed nor is he entitled to get the benefit of sub-section (4) of Section 20 of the U.P. Act No.13 of 1972. The defendant, instead of filing an application under Section sub-section (4) of Section 20 of the U.P. Act No.13 of 1972, has moved an application under Order XV Rule 5 read with Section 151 of CPC, but that too was not pressed by the respondent/tenant during the pendency of the suit, nor the provisions of the Rule 5 of Order XV of CPC were complied with by the respondent/tenant. Order XV Rule 5 of CPC also gives an opportunity to the tenant to deposit the entire amount admitted by him to be due at or before the first date of hearing. But, on a careful analysis of the provisions of Order XV Rule 5, C.P.C. it transpires that it is divided in two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit. In the present case, as observed aforesaid, the respondent/tenant has not deposited/paid any amount towards the rent before the court and is enjoying the suit premises free of cost. As such, it is held that the respondent/tenant has committed default in payment of rent for more than four months. Point of determination (iii) is accordingly decided in favour of the revisionist/tenant.
20. It was the contention of the learned counsel for the respondent that in case this Court is of the view that the impugned judgment and decree is liable to be set aside in that event this Court instead of deciding the revision on merit, may pass an order for remand of the case to the trial 19 court. This submission of learned counsel for the respondent/tenant is misconceived.
21. In the decision of Municipal Corporation, Hyderabad vs. Sunder Singh2, it has been held by the Hon'ble Supreme Court that an order of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary powers conferred under Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was necessary and also give finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand should be passed.
22. In another decision of Bachahan Devi and another vs. Nagar Nigam, Gorakhpur and another3, Hon'ble Apex Court has held there was no compulsion upon the appellate court to remand the matter since the power of the appellate court is co-extensive under the Code as that of the trial Court. The First Appellate Court would have powers to analyse factual position and can also decide an issue or an additional issue. Therefore, an order of remand should not be passed as a matter of routine. It is only when an issue requires additional evidence that a remand to the trial Court may be justified.
23. Instant civil revision has been filed under Section 25 of the Provincial Small Cause Courts Act. The scope of revision under Section 25 of Provincial Small Cause Courts Act is much wider than that of Section 151 of CPC. A reference may be made to a decision of Shyam Lal vs. Rasool Ahmed5, wherein it has been held as under:-
20"4. Lastly, it was submitted that the District Court exercising revisional jurisdiction did not have jurisdiction to interfere with the findings of fact arrived at by the trial court. This submission is also liable to be rejected. Firstly, it was a revision preferred under Section 25 of the Provincial Small Cause Courts Act, the jurisdiction whereunder I not so limited as it may be under Section 115 of the Code of Civil Procedure. Secondly, as we have already pointed out the learned District Judge had assigned convincing reasons for arriving at a finding different from the one arrived at by the trial court and on material available on record, the District Judge though exercising revisional jurisdiction was fully justified in interfering with findings of fact arrived at by the trial court which overlooked the weighty relevant material available on record and clinching the issue."
24. In view of the above, as the entire record of the court below is before this Court and no further evidence is required in the case, there is no justification in remanding the matter to the SCC court.
25. For the foregoing reasons, civil revision is allowed. Impugned judgment and decree dated 24.12.2012 is hereby set aside. Revisionist/plaintiff's suit for a decree of eviction, rent and damages is allowed. Let a decree be prepared accordingly. Having considered the fact that the respondent is running a tailoring shop in the suit property, he is granted time till 28.02.2021 to him to handover the vacant and peaceful possession of the suit, subject to the following undertaking:-
i) The respondent shall file an undertaking before the court below within one month to the effect that he shall vacate the suit property on or before 28th February, 2021 and shall handover the vacant and 21 peaceful possession of the property in question to the revisionist.
ii) The revisionist/tenant shall pay the entire decretal amount within three months.
iii) The revisionist shall pay mesne profits @ ` 100/-
per month from the date of institution of suit till the vacation of the suit premises.
iv) The revisionist/tenant shall not create any third party interest over the property in question.
v) In the event of default of any of the aforesaid conditions, the decree holder shall be entitled to get the decree executed forthwith.
(Lok Pal Singh, J.) 29.08.2020 Rajni