Uttarakhand High Court
Bachhi Ram Dimari (Since Deceased) S/O ... vs Kshetriya Shri Gandhi Ashram Head ... on 23 October, 2007
Author: Rajesh Tandon
Bench: Rajesh Tandon
JUDGMENT Rajesh Tandon, J.
1. Heard Sri C.D. Bahnguna, counsel for the revisionists and Sri L.K. Tiwari, counsel for the opposite party.
2. By the present civil revision filed under Section 25 of the Provincial Small Cause Courts Act, revisionists have prayed for setting aside the judgment and decree dated 20.01.2005 passed by the Judge Small Cause Court/Additional District Judge, Dehradun in Small Causes Suit No. 4 of 2002 Shri Bachhi Ram Dimari v. Kshetriya Shri Gandhi Ashram, whereby the suit of the plaintiff-revisionists has been dismissed.
Factual Matrix of the Case
3. Briefly stated, a suit was filed by the plaintiff-Bachhi Ram being Small Causes Suit No. 4 of 2002 Shri Bachhi Ram Dimari v. Kshetriya Shri Gandhi Ashram praying to the following effect:
18- ;g fd iz'uxr Hkou Hkkx ds gtkZus dh en e; tydj eqcfyx 4235-00 :i;s tks fn0 15@4@2002 ls 30@6@2002 ds gksrs gS ij dksVZQhl vnk dh x;h gS vkSj 'ks"k gtkZus dh jde tks mDr okn ds fuLrkj.k dh rkjh[k rd rFkk iz'uxr Hkou Hkkx dk dCtk izkIr gksus rd dh ns; gksuh ik;h tkosxh] ij dksVZQhl btjk;] loky es vnk dh tkosxh A vr% oknh fuEu izfrdkjks ds fy, lfou; ;kpuk djrk gS% ¼v½ iz'uxr Hkou Hkkx dh csn[kyh dh fMxzh cgd oknh f[kykQ izfroknh lkfnj Qjek;h tkos A ¼c½ dqy vo'ks"k fdjk;s dh en eq0 12851-80 :i;s dh fMdzh cgd oknh f[kykQ izfroknh lkfnj Qjek;h tkos A ¼l½ tydj dh en eq0 3750-00 :i;s dh fMdzh cgd oknh f[kYkkQ izfroknh lkfnj Qjek;h tkos A ¼n½ lhoj dj dh en eq0 1080-00 :i;s dh fMdzh cgd oknh f[kykQ izfroknh lkfnj Qjek;h tkos A ¼;½ uksfVl [kpsZ dh en eq0 1100-00 :i;s dh fMdzh cgd oknh f[kykQ izfroknh lkfnj Qjek;h tkos A ¼j½ iz'uxr Hkou Hkkx ds gtkZus (Mesne Profits) 55-00 :i;k e; tydj izfrfnu ds fglkc ls iz'uxr Hkou Hkkx dk okLrfod dCtk izkIr gksus rd dh fMdzh cgd oknh f[kYkkQ izfroknh lkfnj Qjek;h tkos A ¼y½ okn dk [kpkZ cgd oknh f[kYkkQ izfroknh Hkh fnyk;k tkos A ¼o½ vU; dksbZ izfrdj tks okn dh gkykr dks ns[krs gq, oknh dks fnyk;k tkuk equkflc ik;k tkos Hkh cgd oknh f[kykQ izfroknh fnyk;k tkos A
4. According to the plaint averments, Bachhi Ram is the owner of House No. 100 Badri Narayan Niketan situate at Mayakund, Rishikesh, District Dehradun, which consists of two rooms, Kitchen, and Gaushala on the ground floor and two rooms, two kitchens on the first floor, which had been taken by the opposite party for residential use of the workers of the Gandhi Ashram in the month of March, 1982. Initially, the rate of rent was Rs. 500/- per month apart from Water Tax, House Tax and Sewer Tax with the condition that the same will increase 25% after a gap of every three years. It was increased upto Rs. 800/- per month from the month of April, 1992 and after three years from the month of April, 1995, the same was increased to Rs. 1000.00 per month and from the year, 1998, the same was enhanced to Rs. 1250 per month. Since the month of April, 1998, the opposite party was liable to pay rent @ Rs. 1250/- per month as per the terms and conditions. The plaintiff made several reminders to the opposite party and the intimation was sent by letter dated 9th August, 1998 that in pursuance of the order of the Regional Office dated 20.7.1998, the opposite party has to pay rent to the extent of Rs. 1200/- per month from August, 1998. Plaintiff has sent a letter on 11.8.1998 requesting that the rent has to be increased 25 per cent after a gap of every three years and therefore, the opposite party was liable to pay rent at the rate of Rs. 1250/- per month from April, 1998. This letter was not replied by the opposite party. Thereafter, vide letter dated 19.1.2001 the opposite party has again sent reminder. On 5.3.2002, the plaintiff has sent a notice terminating the tenancy and for handing over the possession of the tenanted portion. However, the same was neither vacated, nor the arrears of rent along with taxes was paid. It has been stated by the plaintiff that provisions of U.P. Act No. 13 of 1972 are not applicable to the building in question.
5. In paragraph 8 of the plaint, the plaintiff has stated as under:
8- ;g fd iz'uxr Hkou 1977 esa fufeZr gqvk Fkk vkSj rnuqlkj iz'uxr Hkou ij o"kZ 1987&88 es m0 iz0 vf/kfu;e 13 lu~ 1972 ds izko/kku ykxw gksrs gS A
6. The defendant has replied the same to the following effect:
8& ;g fd okn i= dh pj.k la[;k &8 ds mRrj dh vko;'drk ugh gS A pj.k la[;k fof/kd gSA
7. The plaintiff has filed the suit on 16th May, 2002 and has made the demand to the following effect:
14- ;g fd ekg vizSy 1988 ls vizSy 1999 rd dk tydj o lhojdj cs:fe;kn gksus ds lcc oknh 14 vizSy 1999 ls tydj o lhojdj izfroknh ls ikus dk vf/kdkjh gS tks fuEu izdkj izfroknh ij ns; gS% v& vo'ks"k fdjk;k 14 vizSy 1999 ls 30 ekpZ 2011 rd dk dqy 23 ekg 17 fnu rd dk eq0 250-00 :i;s izfrekg dh nj ls eq0 &5876-70 ,oa ekg vizSy lu~ 2001 ls 13 vizSy 2002 rd dk dqy 12 ekg 13 fnu dk vo'ks"k fdjk;k 562-00 :i;k izfrekg dh nj ls eqcfyx &7012-50 dqy vo'ks"k fdjk;k &12889-20 c& tydj 14 vizSy 1999 ls 13 vizSy 2002 rd dk dqy 36 ekg dk izkIr 'kqnk fdjk;k eq0 36000-00 :i;s dh en ij 12-50 izfr'kr dh nj ls tydj eq0 &3750-00 :i;k l& lhoj dj 14 vizSy 1999 ls 13 vizSy 2002 rd dk dqy 36 ekg dk izkIr 'kqnk fdjk;k eq0 36000-00 :i;s dh en ij 3 izfr'kr dh nj ls lhoj dj eq0 &1080-00 :i;s A Defence of the Opposite Party
8. Opposite party has contested the suit by filing a written statement and it was denied that there was any stipulation for enhancement of rent to the extent of 25% after a gap of every three years as per condition No. 6 of the Rent Receipt. However, it was admitted that the rent of the premises was increased from time to time as per the mutual consent of the parties. The Opposite Party further took a plea in the written statement that the rent of the premises was Rs. 1000/-per month. It was also stated that the House Tax, Water Tax and Sewer Tax was inclusive in the rent and was not payable separately.
9. A replication was filed by the plaintiff and the plaint averments were reiterated. In paragraph 18, it has been stated that the opposite party is liable to pay the rent from April, 1998 to March, 2002.
Issues Framed by the Trial Court
10. The trial Court has framed the following points for determination:
1. Whether there was an oral mutual consent/agreement between the plaintiff and defendant about increasing rent of the premises in question, if so its effect?
2. Whether the rent of the premises was increased as per written condition on oral basis?
3. Whether increased rent was aid as per the condition contained in the rent receipt issued by the plaintiff?
4. Whether excessive rent and taxes were demanded by the plaintiff, its effect?
5. Whether in April 1998 rent was expected to be increased as per mutual consent?
6. Whether on the demand of the plaintiff, the defendant has paid the water tax, sewer tax, and house tax of his share to the plaintiff?
7. Whether the suit is not maintainable against the defendant in absence of a valid notice.
8. Whether in absence cause of action the suit of the plaintiff was not maintainable?
9. Relief?
Evidence Produced by the Parties.
11. On behalf of the plaintiff, Bachhi Ram has been examined as P.W. 1. Towards documentary evidence, notice dated 5.3.2002, Receipt of notice, Letter for enhancement of the rent written in the month of August, 1998, letter written by the plaintiff on 11.8.1998, 19.12.2001, 22.5.2001 and 15.7.2001, reply dated 5.9.2001, demand notice dated 23.10.2001 and Rent Receipt were filed by the plaintiff.
12. On behalf of the opposite party, Sri Maya Shankar Mishra was examined as D.W. 1. Towards documentary evidence, receipt of depositing a sum of Rs. 26,000 under Section 20(4), two receipts of depositing a sum of Rs. 3,750/-, reply dated 14.3.2002 sent to the opposite party, receipt of sending notice, copy of the letter written by the opposite party to the plaintiff dated 5.9.2001, receipt of depositing a sum of Rs. 3,750, assessment of the premises in question for the year, 1982-87, 1987-92, 1992-97 and 1997-2002, five other receipt of depositing the rent and thereafter receipts of depositing the rent.
Discussion on the Issues
13. While deciding the Issue No. 1, 2, 3 and 5 together, the trial Court has recorded the finding that there was no agreement in writing between the plaintiff and defendant in matter of increasing of the rent of the tenanted premises as per condition No. 6 of the Rent Receipt and the defendant was not liable to pay the increased rent of the premises @ Rs. 1250/- per month w.e.f. April, 1998. The trial court has further recorded a finding that the rent of the premises was increased from time to time as per mutual consent of the parties and not as per terms and condition No. 6 of the rent receipt. Further on the question of admissibility of condition No. 6 of the rent receipt regarding increasing of rent after every three years, the trial court has recorded a finding that a department may not be bound by the consent of its employee in matter of payment of rent unless the department enters into an agreement in writing with the landlord to pay the increased rent as per condition No. 6 of the rent receipt as rent receipt cannot be treated as an agreement between the plaintiff/landlord and the defendant/tenant. Relevant portion of the finding recorded by the Judge Small Cause Court is quoted below:
;g rdZ oknh i{k dh vksj ls fn;k x;k fd Loa; izfroknh lk{kh us vkSj izfroknh us vius izfrokni=] esa ;g ckr ekuh gS fd tc ls lEifRr fdjk;s ij nh x;h Fkh] vkilh lgefr ds vk/kkj ij 25 izfr'kr fdjk;k o`f) dh tkrh jgh gS A vr% oknh tks dFku izR;sd rhu o"kZ ds i'pkr 25 izfr'kr fdjk;k o`f) rkjrE; esa fd;s tkus dh ckr dgdj vk;k gS] og izfroknh ds vkpj.k ls fl) gS tcfd izfroknh dk dFku gS fd Hkys gh o`f) 25 izfr'kr rhu o"kZ ds i'pkr dh x;h gks ijUrq og o`f) vkilh ekSf[kd lgefr ds vk/kkj ij dh x;h Fkh] u fd fdlh ck/;dkjh fyf[kr vuqcU/k ds vk/kkj ij eS izfroknh ds bl rdZ ls Hkh lger gwWa D;ksfd 25 izfr'kr fdjk;k o`f) rkjrE; esa ck;s tkus dk dksbZ nLrkost ugha gS vkSj ;fn fdjk;snkj edku ekfyd ls vkilh lgefr ds vk/kkj ij fdjk;k ckdj nsrk gS rks ;g vkilh ekSf[kd lgefr ds vk/kkj ij gh ekuk tk;sxk bls fyf[kr vuqcU/k ds leku ugh ekuk tk ldrk A i=koyh eas bl ckor okn fcUnq Hkh cuk gS fd nksuks i{kksa ds chp D;k rkjrE; esa fdjk;k o`f) ds lEcU/k esa dksbZ lgefr Fkh] ;fn gkWa rks izHkko \ ;k fyf[kr fdlh izdkj ds vuqcU/k ds vuqlkj o`f) gqbZ rFkk D;k izfroknh }kjk fdjk;k ckdj nsus dk dk;Z izkfIr jlhn dh mfYyf[kr 'krZ ds vuq:i fd;k x;k gS A eSa mijksDr leLr iz'uksa ds lEcU/k esa nksuks i{kksa dh ekSf[kd lk{; dk voyksdu djus ls ;g ikrk gwWa fd tks Hkh o`f) dh x;h og nksusk i{kks }kjk ekSf[kd lgefr ds vk/kkj ij dh x;h gS vkSj mDr o`f) fyf[kr 'krZ ds vuqlkj ;k fdjk;k dh jlhn esa fy[kh 'krZ ftls fd vuqcU/k ds leku gksuk oknh dgrk gS ds vuqlkj o`f) ugh dh x;h] D;ksfd oknh us izfroknh }kjk fy[kk i= fnukafdr 9-8-1998 nkf[ky fd;k gS ftlds }kjk ekg vxLr 1998 esa 1000@& :i;s ls ckdj fdjk;k 1200@& :i;s izfrekg fd;k x;k] mles Hkh fdlh 'krZ dk mYys[k ugha cfYd ;g oknh }kjk ckdj fdjk;k ekaxs tkus dh ckr ds lUnHkZ esa vkilh lgefr ds vuq:i ck;k tkuk ekuk tk;sxk vkSj fdlh 'krZ ds v/khu ck;k gqvk ekus tkus dk izek.k ;g ugh gS D;ksfd oknh }kjk fnukad 11-8-1998] 19-1-2001] 22-5-2001 ds i= fdjk;k ckdj nsus ds lEcU/k esa fy[ks x;s gS blds tckc es Loa; izfroknh }kjk fnukad 5-9-2001 dks i= oknh dks fy[kk x;k gS tks oknh }kjk nkf[ky gS vkSj mlesa Li"V fd;k x;k gS fd jlhn ij vafdr 'krZ ds vuqlkj le; le; ij fdjk;k o`f) dh x;h gS cfYd vkilh lgefr ds vk/kkj ij fdjk;k o`f) dh x;h gS vkSj mles ;g Hkh mYys[k gS fd izfroknh xka/kh vkJe tks fd ,d laLFkk gS ds eU=h in ij jgrs gq, muds fdlh eU=h }kjk fdjk;k o`f) ds lEcU/k esa dksbZ vfHkys[k fu"ikfnr fd;k x;k gks rks bls iznf'kZr fd;k tk;s A
14. While deciding the Points No. 4 and 6 as to whether excessive rent and taxes were demanded by the plaintiff and as to whether on the demand of the plaintiff, the defendant has paid the dues of water tax, sewer tax and house tax of its hsare to the plaintiff, the trial court has recorded a finding that the revisionist/plaintiff has sent several notices such as dated 11.8.1998, 19.1.2001, 22.5.2001 and 15.7.2001 to the defendant/tenant from time to time about non-payment of rent as per condition No. 6 of the Rent receipt but the plaintiff did not made any demand of tax from the defendant by any of said notice and only before institution of the suit rent and ejectment by a notice such demand was made which was not sufficient to hold that the plaintiff, in fact, demanded water tax and other taxes from the defendant/tenant.
Written Submission Filed By the Revisionist.
15. Counsel for the revisionist has filed written submission. After hearing both the parties arguments were concluded.
16. On behalf of the plaintiff, it has been stated as under:
6. The revisionist/plaintiff filed a letter of the Manager of the defendant Gandhi Ashram dated 9-08-1998 before the trial court in which letter there is a reference of the order of Regional Office dated 30-07-1998 and by which letter the Manager informed to the plaintiff that the rent of the premises has been increased from Rs. 1,000/- to Rs. 1200/- w.e.f. August, 1998. The contents of the letter dated 09-08-1998 reads as under:
{ks0 dk;kZy; i=kad 1631 fnukad 30-7-98 ds vkns'kkuqlkj dk;ZdrkZ fuokl dk edku HkkM+k 1000@& ls ckdj 1200@& izfrekg vxLr 98 ls dj fn;k x;k gS A A copy of this letter is marked as paper No. 39 Ga in the records of trial Court. The plaintiff did not agree to it and he claimed rent @ Rs. 1250/- p.m. w.e.f April 1998 by his reply letter dated 11-08-1998, a copy of which was filed in the trial court and which was marked as paper No. 40 Ga by the trial court. The relevant portion of the letter dated 11-08-1998, paper No. 40 Ga, is reproduced to blow:
egksn; vizSy 1992 esa 625 :0 izk0 fdjk;s ij 25 izfr'kr cksRrjh dj 800@& fdjk;k iz0 ek0 fn;k tkrk jgk vizSy 1995 es 800@& :0 ekfld fdjk;s ij 25 izfr'kr dh cksRrjh dj 1000@& fdjk;k izfrekg fn;k tkrk jgk A ;gh 25 izfr'kr dh cksRrjh dj 1000@& ij 1250@& fdjk;k vizSy 98 ls fn;s tkus dh d`ik djsxs A bl fo"k; esa eSus O;oLFkkid egksn; dks iw.kZ tkudkjh nsdj voxr djk fn;k gS A Reminder letters dated 19-01-2001, 22-05-2001 and 15- 09-2001 were also sent by the plaintiff to the defendant claiming rent @ Rs. 1250/- p.m. Copies of the said letter were filed in the trial court which were marked as paper No. 41Ga, 42GA and 43Ga, and the same were proved by the plaintiff by evidence before the trial Court. The plaintiff claimed that the defendant was liable to pay increased rent of Rs. 1250/- per month w.e.f. April 1998.
11. On the question of admissibility of condition No. 6 of rent receipt, for purpose of increasing rent after every 3 years, the trial court recorded finding to the effect that a department may not be bound by the consent of its employee in matter of payment of rent unless the department enters into an agreement in writing with the landlord to pay increased rent as per condition No. 6 of the rent receipt as rent receipt cannot be treated as an agreement between the plaintiff/landlord and the defendant/tenant. The finding of the trial Court is contradictory on the face of the record. On one hand the trial court recorded finding categorically to the effect that rent was increased of the tenanted premises from time to time as per mutual consent between the plaintiff and the defendant but in the same breath recorded finding that there was no agreement fro accepting condition No. 6 of the rent receipt for purpose of increasing the rent. However, the trial Court in para 8 of the judgment while referring the defence of the defendant, reproduced the defence of the defendant in following way:
---fdjk;s esa tks Hkh cksRrjh dh x;h og vkilh ekSf[kd lgefr ds vk/kkj ij dh x;h gS----
The trial court recorded finding to the effect that rent of the tenanted premises was increased from August, 1998 from Rs. 1000/- to Rs. 1200/- per month on mutual consent arrived at between the parties. This finding was recorded obviously in view of the Paper No. 39 Ga in which there is a reference of order of the Regional authority of Gandhi Ashram, by which it was mutually agreed to pay increased rent of Rs. 1200/- per month of the tenanted premies we.f. August, 1998 to the plaintiff/landlord. The relevant finding of the trial court at internal page 11 of the judgment is as under:
---eSa] mijksDr leLr iz'uks ds lEcU/k es nksuks i{kksa dh ekSf[kd lk{; dk voyksdu djus rFkk muds }kjk vf[ky nLrkosth lk{; dk voyksdu djus ls] ;g ikrk gWaw fd tks Hkh o`f) dh x;h og nksusk i{kks }kjk ekSf[kd lgefr ds vk/kkj ij dh x;h gS vkSj mDr o`f) fyf[kr 'krZ ds vuqlkj ;k fdjk;s dh jlhn esa fy[kh 'krZ ftls dh vuqcU/k ds leku gksuk oknh dgrk gS] ds vuqlkj o`f) ugh dh x;h] D;ksfd oknh us izfroknh ds }kjk fy[kk i= fnukafdr 9&8&98 nkf[ky fd;k gS ftlds }kjk ekg vxLr 1998 esa 1000@& ls ckdj fdjk;k 1200@& :0 izfrekg fd;k x;k] mlesa Hkh fdlh 'krZ dk mYys[k ugha gS cfYd ;g oknh }kjk ckdj fdjk;k ekaxs tkus dh ckr ds lUnHkZ esa vkilh lgefr ds vuq:i ck;k tkuk ekuk tk,xk vkSj fdlh 'krZ ds v/khu ck;k gqvk ekus tkus dk izek.k ;g ugh gS----
The trial court further recorded finding to the effect that the defendant/tenant could be compelled to pay increased rent of the tenanted premises @ Rs. 1200/- per month from August 1998. The relevant finding at internal page 13 of the judgment is as under:
---vr% okn fcUnq la[;k 5 ds lUnHkZ esa] eS ;g ikrk gwWa fd i{kdkjks dh vkilh lgefr ds vHkko esa ekg vizSy 1997 ls 25 izfr'kr dh oknh }kjk crk;h x;h o`f) vkisf{kr ugh gS A ;g o`f) dsoy bl lhek rd dh tk ldrh gS] ftl lhek rd izfroknh blds fy, lger gks vksj izfroknh us tks 1200@& :0 izfrekg fdjk;k ekg vxLr 1998 ls ckus dh ckr dgh gS ml dFku ds vuq:i gh izfroknh dks ck/; fd;k tk ldrk gS----
In view of the above categorical finding regarding liability of the defendant/tenant to pay the rent of the tenanted premises @ Rs. 1200/- per month w.e.f. August 1998, the defendant/tenant was liable to ejectment if he had not satisfied the court that he had paid at least admitted rent of Rs. 1200/- per month to the plaintiff/landlord w.e.f. August 1998. There is no finding of the trial court on this aspect of the matter but in view of Para. 24 of the Written Statements of the defendant/tenant, it is clear that it did not pay or deposit the rent @ Rs. 1200/-per month w.e.f. August 1998. Para 24 of the W.S. reads as under:
24- ;g fd oknh }kjk ekpZ 2002 rd fdjk;k 1000@& izfrekg dh nj ls izkIr fd;k tkrk jgk gS o jlhns tkjh dh xbZ gS A On perusal of letters dated 19-01-2001, 22-05-2001 and 15-09-2001, which are marked as paper No. 41 Ga, 42 GA and 43 Ga, it is clear that the plaintiff has always demanded increased rent from the tenant and on perusal of paper No. 58 Ga and 59 Ga it is also clear that after August, 1998, the plaintiff/landlord did not accept rent @ Rs. 1000/- per month willingly but accepted the same on protest.
Therefore, the fact remains that since the tenant had not paid or deposited rent @ Rs. 1200/- per month w.e.f. August, 1998, he was a defaulter.
Doctrine of Estoppel: It was not open for the defendant/tenant to take the plea which is in the teeth of Doctrine of estoppel. Section 115 of the evidence Act deals within the doctrine of estoppel, which reads as under:
Section 115. Estoppel: When any person has by his declaration, Act or omission intentionally caused or permitted another person to believe a representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
15. There is one more aspect of the mater that the defendant did not produce any official from the Regional office of Gandhi Ashram, Dehradun, as a witness, to state to the effect that no letter No. 1631 dated 20-07-1998 as is referred in the Paper No. 39 Ga, was ever issued from the Regional office to the Manager of the Gandhi Ashram, Rishikesh district Dehradun, thereby promising to pay increased rent of Rs. 1200/- per month to the revisionist/plaintiff w.e.f. August, 1998. Therefore, the fact remains that the promise referred to in the Paper No. 39 GA, to pay increased rent of Rs. 1200/- per month w.e.f. August, 1998 to the revisionist/plaintiff, was a genuine promise and it was made for purpose of being acted upon. The only person who appeared as witness from the side of the defendant was Mr. Maya Shankar Mishra (D.W. 1), but he did not say even a single word about the letter of the Regional Office, No. 1631 dated 20-07-2007 as referred to in the Paper No. 39 Ga. Therefore, it stands established that the defendant department had promised to pay increased rent of Rs. 1200/- per month w.e.f. August, 1998 to the revisionist/plaintiff, but the department did not pay actually the promised rent.
16. The defendant department by its conduct absolutely made it clear that it was bound to pay at least Rs. 1200/-per month as rent w.e.f. August, 1998 on mutual consent, even if condition No. 6 of the rent receipt is not taken into account. Therefore, the trial court was also justified to record finding to the effect that the defendant /tenant could be compelled to pay rent @ Rs. 1200/- per month w.e.f. August, 1998.
17. Since the defendant had neither paid the rent of the tenanted premises @ Rs. 1200 per month to the revisionist/plaintiff w.e.f. August 1998 nor did deposit the same in the Trial Court, in view of the promise contained in paper No. 39 Ga of the department, the defendant was a defaulter and as such was liable to be rejected. The defendant paid rent of the tenanted premises @ Rs. 1000/- per month to revisionist/plaintiff w.e.f. April 1995 and it continued to pay the same to the revisionist/plaintiff even after August 1998 at the same rate. The defendant paid Rs. 200/- less per month w.e.f. August 1998 till 16 May 2002, the date of institution of the suit, and, therefore, during the period of 48 months, the defendant did not pay admitted rent to the revisionist/plaintiff, the total amount of which comes to 48 months X Rs. 20o/-=Rs. 9,600/-.
Therefore, it is established by the evidence available on the records of the trial court that the defendant was a defaulter and was liable to be ejected from the tenanted premises by a decree of ejectment.
30. Since neither entire admitted rent, in view of Paper No. 39Ga was paid by the defendant to the revisionist/plaintiff, as explained in page 8 of this Written submission, nor any amount of water tax, which is the part of the rent, in view of the statutory provision as laid down under section 7 of the U.P. Act No. 13 of 1972, was paid by the defendant/tenant to the revisionist/plaintiff, the default clause under Section 20(1)(a) of the U.P. Act No. 13 of 1972 was attracted and, therefore the tenant was liable to be ejected from the premises in question.
17. On the other hand on behalf of the defendant, it has been stated in the written statement as under:
5- ;g fd okn i= dh pj.k la[;k 5 vLohdkj gS A fdjk;k o`f) dHkh Hkh lqfuf'pr ugh dh vkSj u gh vizSy 1998 ls 1250@& :i;s ¼ckjg lkS ipkl :i;s½ dh nj ls Hkqxrku gh fd;k tkuk Fkk vkSj u gh oknh 1250@& :i;s izfroknh ikus dk vf/kdkjh gh gSA fdjk;k 1000 :0 izfrekg gS A 6- ;g fd okn i= dh pj.k la[;k&6 esa fofHkUu i=kpkj fjdkM+Z dk fo"k; gS o lk{; lEcU/kh gS A oknhx.k }kjk mfpr :i ls lk{; miyC/k djk;s tkus ij gh mRrj fn;k tk ldsxk A izfroknh }kjk dHkh Hkh 25 izfr'kr dh o`f) Lohdkj ugh dh x;h Fkh izfroknh dks dHkh Hkh 25 izfr'kr dh o`f) Lohdkj ugh dh vkSj u gh ;g fof/kd :i ls iks"k.kh; gS A
18. The trial Court has recorded a finding on the basis of the evidence produced by the defendant to the following effect:
izfroknh i{k dh vksj ls vius dFkuksa ds iw.kZ leZFku esa e;k 'kadj feJ] Mh0 MCyw 01 dks ekSf[kd lk{; esa is'k fd;k rFkk nLrkosth lk{; esa lquok;h dh izFke frfFk ij /kkjk 20¼4½ ds vUrZxr 26]000@& :i;s dh /kujkf'k tek djus dh jlhn] mlds i'pkr fdjk;k 3750@& :i;s tek djus dh nks jlhn] izfroknh }kjk oknh dks Hkstk x;k tckc uksfVl fnukafdr 14-3-2002] Hkstus dks Mkd jlhn] izfroknh }kjk oknh dks fy[ks x;s i= fnukafdr 5-9-2001 dh izfr rFkk 3750@& :i;s fdjk;k djus dh jlhn] uxjikfydk }kjk fookfnr lEifRr ds dj ewY;kadu ds bUnzkt dh ckcr o"kZ 1982&87 o"kZ] 1987&92 o"kZ] 1992&97 rFkk o"kZ 1997&2002 ds ,lsleSUV dh udysa] fdjk;k tek djus dh 6 vU; jlhns o mlds i'pkr nkSjku okn fdjk;k tek djus dh jlhnsa izLrqr dh x;h A
19. However, the trial Court has dismissed the Suit on the ground that the demand of the increased rent cannot be made from the defendant inasmuch as the plaintiff cannot impose his conditions.
20. So far as Issue No. 4 regarding the demand of the tax is concerned, finding was also recorded against the plaintiff and the suit has been dismissed.
21. In a letter dated 5.9.2001 written by one Radhey Shyam Sharma, Minister, Kshetriya Sri Gandhi Ashram Dehradun to Sri Bachchi Ram Dimri, it has been mentioned as under:
egksn;] vius i= fn0 15-07-2001 dk lUnHkZ xzg.k djsa A vkids i= ds izLrj 1 o 2 ds mRrj dh vko;'drk ugh gSA vkids i= ds izLrj 3 ds dFku iw.kZr% lgh ugh gS A ;|fi fdjk;k cksRrjh le; le; ij gksrh jgh gS ijUrq mldk vk/kkj vkidh jlhn ij vafdr fu;ekoyh 6 u gksdj vkilh ekSf[kd lgefr jgh gS A vki }kjk jlhn ds i`"B ij vafdr 'krksZ ls vkJe ck/; ugh gS A iwoZ esa Hkh vkils dbZ ckj vuqjks/k fd;k x;k Fkk fd vki ;fn dksbZ lkgefr i= izR;sd rhu o"kZ ckn 25 izfr'kr fdjk;k ck;s tkus ds lEcU/k es miyC/k djk lds rks o`f) ds lEcU/k esa fopkj fd;k tk ldrk gSA ;|fi O;oLFkkid _f"kds'k Hk.M+kj o ea=h {ks=h; Jh xka/kh vkJe nsgjknwu }kjk bl lEcU/k es vkils ekS[kd o fyf[kr :i ls vuqjks/k fd;k x;k A ijUrq vki }kjk vkt rd ,slk dksbZ fyf[kr lgefr i= ugh fn[kk;k x;k gS A Jh xka/kh vkJe ds fu;ekuqlkj vkidks Kkr gS fd ea=h cnyrs jgrs gSA vr% ;fn iwoZorhZ fdlh ea=h }kjk 25 izfr'kr fdjk;k o`f) dk dksbZ jkthukek vkids ikl gks rks miyC/k djk;sa A gekjs fjkdM+Z esa ,slk dksbZ izi= ugh gS vkSj u gh gekjs laKku esa dHkh ,slk dksbZ le>kSrk gh gqvk gS A mijksDrkuqlkj ekax jlhn dh i`"B ij vafdr vkidh 'krksZ dks ekuus dk xak/kh vkJe ck/; ugh gS A d`i;k lwfpr djs A
22. As will appear from the record available that initially the rent was Rs. 500/- per month, thereafter, 25% increase was made in the rent i.e. Rs. 800, thereafter 25% increase was made and Rs. 1,000/- was being paid by the defendant from 1995 and from 1998, a sum of Rs. 1250 and from 2001, a sum of Rs. 1562.50 had to be paid.
23. The defendant in his written statement has admitted that the rent is Rs. 1000. It is not understood that excepting the plea of 25% enhancement, how the defendant has been paying a sum of Rs. 1000/- per month when in point of fact initially the rent was Rs. 500/- per month and as such the defendant is estopped from challenging the rate of rent, which has become prevalent as 1562.50 from 2001. The defendant in his statement has stated as under:
¼2½ rhu lky ds le; esa 25 izfr'kr fdjk;k o`f) dk dksbZ vk/kkj eS ugh crk ldrk A ;fn oknh us fdjk;k o`f) dk dksbZ uksfVl fn;k gksxk geus mldk tckc fn;k gksxk i=ks ds 11@8@98 ds i= 19@1@01 ds Le`fr i= o 22@@88 ds i= dk tokc dksbZ fn;k fd ugha eS ugh dg ldrk tydj lhojdj dk Hkqxrku eSus djk ;k ugh eS ugh dg ldrk gwWa dsoy fdjk;k fn;k gS fyf[kr ekax ds ckn Hkh geus dksbZ tydj lhojdj vyx ls ugh fn;k gS A
24. In fact, the defendant has admitted that he is paying the rent in accordance with the increase of 25% rent.
Case Laws Referred by the Revisionist
25. On the other hand counsel for the revisionist Sri C.D. Bahuguna has referred Moti Lal Padampt Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and Ors. , where it has been observed as under:
7. ...This doctrine has been variously called 'promissory estoppel', 'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is, as we shall presently point out, neither in the realm of contract nor in the realm of estoppel....
8. ...The true principle of promissory estoppel, therefore, seems to be that where one party has by his works or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, thue promise would be binding on the party making it and he would not be entitled to go back upon it....
24. ...The law may, therefore now be settled as result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promise and, in fact, the promise, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the premise, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract....
...It is indeed the pride of constitutional democracy and rule of law that the Government stands on that same footing as a private individual so far as the obligation of the law concerned : the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government committed to the rule of law, claim immunity from the doctrine of promissory estoppel....
26. Counsel for the revisionists has referred State of Orissa and Ors. v. Mangalam Timber Products Ltd. 2003 (8) SState of Orissa and Ors. v. Mangalam Timber Products Ltd. 2003 (8) Supreme 65, where it has been observed as under:
4. Before the High Court, the principal plea of the respondent was that there was no contract in written and therefore the appliablity of the principal of Promissory Estoppel was not established. The Hgih Court has rightly discarded this plea. To attract the applicability of the principal of Estoppel it is not necessary that there must be contract in writing entered into between the parties.
27. Counsel for the revisionists has further referred Smt. Raj Rani Kapoor v. Bhupinder Singh 1986 (2) ARC Page 457, where it has been observed as under:
20. According to this, in addition to the agreed rent liability to water tax has also bee statutorily placed on thue tenant besides 25 per cent of any increase in the house tax that may take place subsequently. This would mean that apart from the amount which was payable as the agreed rent when the Act commenced, his rent liability would increase so as to include the entire water tax plus 25 per cent of the increase in house tax. All these amounts added together would then become payable to the tenant as rent and will have to be accounted for forwards rent for the purposes of default under the Act.
28. Counsel for the revisionist has referred Abdul Alim v. District Judge, Jhansi and Ors. 1996 (2) ARC Page 44, where it has been observed as under:
6. The contention of the respondent-tenant was that when he took the house on rent it was agreed that he would not be responsible for paying water-tax to the plaintiff-landlord and that it was agreed that the landlord would pay the water-tax, and the tenant would only pay Rs. 90 per month. It was further contended by the defendant that after March, 1984 the defendant got his own water connection and hence also he is not liable to pay water-tax. The petitioner's suit was dismissed by the trial Court. He filed a revision and the Revisional Court has held that a finding of fact ahs been recorded by the trial Court that the sum of Rs. 90 per month which was being paid by the tenant did not include water-tax.
8. However, the Revisional Court has dismissed the revision by holding that the landlord has failed to discharge his burden to prove the actual proportionate water-tax payable by the tenant. In my opinion, once it is held that the tenant has not paid the rent including water-tax for a period of four months or more he will become liable for eviction unless he is saved under Section 209(4) of the U.P. Act No. XIII of 1972. It cannot be said in this case that the tenant is saved by Section 209(4) because he ahs not even deposited the water-tax even on the first date of hearing. In the present case, the plaintiff has mentioned the amount of water tax due from the tenant in paragraph 6 of his plaint being Rs. 632.12. Eve n if the proportionate amount of water-tax has not been mentioned by the plaintiff, the fact cannot be de4nied that the tenant will be liable for eviction because there can be no denial that he has not paid the water-tax. The only dispute can be as to the exact amount of water-tax which has to be paid and that amount can be calculated by the executing Court but there can be no dispute that the tenant has not paid the water-tax which he was bound to pay in view of Section 7 of the Act. This being so, this petition has to be allowed, and the impugned judgments dated 29-5-1989 and 20-1-1990 are set aside and the suit water-tax which is payable by the respondent No. 3 tenant shall be calculated by the Executing Court in the execution application instituted by the petitioner.
29. Counsel for the revisionist has referred Meghraj Hiani v. Smt. Baikunthi Devi 1988 (2) ARC 312, where it has been observed as under:
The language used in section 7 of the Act is 'liability and payment of water tax'. This liability is not dependent on the actual payment of such tax by the landlord. The liability of tenant to pay water-tax is only when it is payable to the Municipality of Nagar Palika.
30. In Channu Lal v. Ixth Addl. District Jude, Varanasi and Ors. 2006 (64) ALR 751 (H.C.), it has been observed as under:
2. Original landlord respondent No. 3 Kamleshwari Nandan Singh (since deceased and survived by legal representatives) filed suit for eviction and recovery of arrears of rent against tenant-petitioner in the form of suit No. 567 of 1984. Property in dispute is a shop situate in Varanasi. In the notice as well as in the plaint, it was stated that rate of rent was Rs. 30/- per month and tenant had not paid the rent since August, 1982 to August, 1984 (25 months). It was also mentioned in the notice as well as in the plaint that Rs. 150/- was also due as water tax for this period. Tenant pleaded that he was not liable to pay water tax and as far as arrears of rent were concerned he had deposited the same under section 30 of U.P. Act No. 13 of 1972. Trial Court/JSCC, Varanasi decided both the points in favour of the tenant and dismissed the suit through judgment and decree dated 23.9.1986. Against the said judgment and decree, tenant-petitioner filed revision (SCC Revision No. 391 of 1986). Before the revisional Court, question of default in payment of rent was pressed. The only point argued before the Revisional Court was regarding non-payment of water tax. In respect of water tax trial Court had held that there was no agreement in between the parties for payment of water tax. By virtue of section 7 of U.P. Act No. 13 of 1972, tenant is required to pay water tax subject to any contract in writing to the contrary. In view this if there was no agreement either by them tenant was liable to pay water tax. However, neither in the notice nor in the plaint any basis was mentioned for claiming Rs. 150/- as water tax. In the oral statement, landlord did not even say that for the period from August, 1982 to August, 1984, tenant was liable to pay Rs. 150/- as water tax. Revisional Court simply allowed the revision on the ground that water tax of Rs. 150/- had not been paid.
31. In Abdul Kader v. G.D. Govindaraj (dead) by LRs. , the Apex Court has observed as under:
5. The term "rent" ha snot been defined in the Act and therefore, we shall have to go by the ordinary dictionary meaning of the term "rent". As held in Karnani Properties Ltd. v. Augustine (Miss) AIR 1957 SC 309 the tern "rent" is comprehensive enough to include, all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of landlord. It was very fairly conceded by learned Counsel for the appellant that ever since the decision of this Court in the case of Karnani Properties Ltd., the view being taken consistently by the High Court of Madras is that in the event of taxes, having been agreed to be paid by the tenant, the same forms part of the rent. [To wit, see Raval and Co. v. K.G. Ramachandran (minor) . Thus there is no doubt that the amount of taxes which was agreed to by the tenant to be paid to the landlord was a part of the rent and the word "rent" in Section 10(2)(i) of the act has to be construed accordingly.
32. Relying upon the judgment of Madan Mohan and Anr. v. Krishna Kumar Sood , it has been observed in Sukhanand v. IVth Addl. District Judge, Bulandhshahr 1993 (2) ARC Page 69 as under:
7. As observed by the Apex Court in its decision in the case of Madan Mohan and Anr. v. Krishan Kumar Sood , what ever protection the Rent Acts give, they do not give blanket protection for non-payment of rent'. This basic minimum requirement has to be complied with by the tenants. The Rent Acts do not contemplate that if one takes a house on rent he could continue to enjoy the same without payment of the rent. The onus to show payment of rent lies on a tenant. I respectfully fully agree with the view taken by the learned Single Judge in the decision of this Court in the case of Mahesh Chandra v. Smt. Angoori Devi reported in 1989 (1) ARC 540. Further mere oral testimony is not sufficient in this connection. In a case where the tenant comes forward with the allegations that the rent was paid but no receipt was issued with no explanation whatsoever, for not sending the rent by money order, then, in such a situation, the oral testimony of the tenant is regard to the payment of rent claiming discharge of the liability in this regard cannot be deemed to be worth reliance at all.
33. Further relying upon the judgment of Madan Mohan and Anr. v. Mohan Kumar Sood in Mohd. Siddiqui v. Lind Additional District Judge, Unnao 1997 (2) ARC 400, it has been observed as under:
21. As pointed out by the Apex Court in its decision in this case of Madan Mohan and Anr. v. Mohan Kumar Sood , whatever protection the Rent Acts give they do not give blanket protection for non-payment of rent. This basic minimum has to be complied with by the tenants. The Rent Acts do not contemplate that if one takes a house on rent he can continue to enjoy the same without payment of rent.
Case Laws Referred By the Respondent
34. Counsel for the respondent has referred Sri Chaman Lal v. Shri Raj Kumar Sachdeva 2006 (2) U.D. 499, where it has been observed as under:
8. On behalf of the revisionist, it is also argued that trial court has erred in law in holding that rate of rent is Rs. 200/- per month and not Rs. 700/-. In this connection, my attention was drawn to the copy of the house tax assessment, extract of which is Ext. 1 in the trial court's record. Said extract does show that the Nagar Palika Parishad, Rudrapur, assessed the annual rental value of the property at Rs. 8,400/-, which means the monthly rental income of the house should have been Rs. 700/- per month. The copy of the house tax assessment register prior to said period, which is ExtA-13, shows that the annual rental income of the house in question is Rs. 3,000/-. This comparison of these documents of the municipal record, show that the house has been assessed at a higher rental value after the year 1994-95 but that by itself does not establish that the rent payable by the tenant is Rs. 700/- per month. The burden lies on the plaintiff to prove the rate of the rent, alleged to be payable by the defendant to him. There is not a single receipt, showing that the defenant used to pay either to Dwaraka Dass or to his legal heirs, or to the plaintiff, rent at the rate of Rs. 700/- per month.
35. Aforesaid case law is fully distinguishable as in the present case in the statement of defendant he has admitted that the rent was to be enhanced 25% in the gap of every three year.
Submission of the Revisionist
36. Counsel for the revisionist-Sri C.D. Bahuguna, has submitted that:
a) in view of the admissions of the defendants, the plaintiff is entitled for the rent at the rate of Rs. 1200/- per month and the defendant has no right to object the same.
b) the building was first assessed in the year, 1987, therefore, the holiday being for a period of 40 years, U.P. Act No. XIII of 1972 is not applicable to the building in dispute.
c) the trial Court has not recorded any finding on the aforesaid point and there was no issue regarding the same.
37. There is no dispute regarding relationship of landlord and tenant, there is no dispute that the plaintiff is not the owner, U.P. Act No. 13 of 1972 is not applicable to the building in dispute, therefore, the defendants are liable to be evicted from the premises in dispute on the ground that U.P. Act No. 13 of 1972 has no application in the present case.
38. Section 2(2) of the U.P. Act No. 13 of 1972 reads as under:
(2) [Except as provided in Sub-section (5) of Section 12, Sub-section (1-A) of Section 21, Sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or Sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed]:
[Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period often years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter.]:
[Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a refernce to a period of [forty years form the date on which its construction is completed.] Explanation I. -[For the pruposes of this section],-
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, thje dte on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time:
(b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;
(c) where such substantial any new construction in place of an existing building that the existing building becomes only a minor part thereof the whole of the building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
39. In Sudha Rani Garg (Smt.) v. Sri Jagdish Kumar (Dead) and Ors. 2004 SCFBRC 449, the Apex Court has observed as under:
7. The Explanation provides for four different dates for determining the date of completion of building. The dates are:
(1) When the completion of the building is reported to the local authority.
(2) When the completion of the building is otherwise recorded by the local authority.
(3) When the first assessment of the building comes into effect.
(4) When it is actually occupied.
8. The Explanation further provides that in case for the first three categories the dates are available then the earliest of the three dates will be the date of completion of the building and in case the first three dates are not available, then the fourth date will be the date on which construction of the building shall be taken to have been completed.
9. The Explanation I is a deeming provision. The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible", (per Lord radcliffe in St. Aubyn (L.M.) v. A.G. (NO. 2)(1951) 2 ALL E.R. 473 (HL).
40. In the present case, since, there is no dispute with regard to relationship of landlord and tenant and further, it has not been denied that U.P. Act No.13 of 1972 is not applicable to the building in dispute, therefore, taking into consideration the judgment of Shyam Lal v. Rasool Ahmad (Dead) by LRs 2002 SCFBRC 479. In the said judgment, the Apex Court has observed as under:
5. 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 Causes Courts Act, the jurisdiction whereunder is 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 the 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.
Conclusion
41. Since U.P. Act No. 13 of 1972 does not apply to the building in dispute, admittedly, the premises in dispute was let out to the defendants, therefore, the findings recorded by the Judge Small Cause Courts is wholly illegal and can be interfered under Section 25 of the Provincial Small Cause Courts Act in view of the judgment of Shyam Lal (supra).
42. In view of the above, the order passed by the Judge Small Cause Court is set aside. However, in the interest of justice, the respondent-tenant is granted time to vacate the premises in question by or before 31st December, 2007 provided:
(a) undertaking is furnished by 30th November, 2007 for vacating the premises in dispute.
(b) the respondent-tenant pays entire damages/rent/mesne profits on or before 30th November, 2007.
(c) the respondent-tenant pays on paying the regular damages/mesne profits at the rate fixed above in the first week of every month until and unless the premises in dispute is vacated.
(d) On failure of the aforesaid conditions, revisionist-landlord shall have liberty to execute the order forthwith. Consequently, Civil Revision is allowed. No order as to costs.