Allahabad High Court
Smt. Anita Sharma vs Laique Ahmed on 19 April, 2019
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 37 Case :- S.C.C. REVISION No. - 164 of 2014 Revisionist :- Smt. Anita Sharma Opposite Party :- Laique Ahmed Counsel for Revisionist :- Anurag Khanna,Arjun Singhal,Nipun Singh Counsel for Opposite Party :- Shrey Sharma,Shrey Sharma Hon'ble Siddhartha Varma,J.
The plaintiff/applicant in the Revision filed a suit being SCC Suit No. 20 of 2011 for the eviction of the defendant/respondent and for arrears of rent. When this suit was dismissed saying that the provisions of U.P. Act No. 13 of 1972 were applicable to the shop in question, the instant Revision was filed. The case of the plaintiff/applicant was that after she had let out the shops which were on the ground flour below the Kings Hotel and Bina Prakash Nurshing Home, Civil Lines, Bijnor, the boundaries of which were : East: remaining accommodation of the landlord; West: Sadak Sarkari Civil Lines Bijnor; North: another shop of the plaintiff and South-Rasta, the premises of the three shops contiguous to each other were rented to the defendant after the partition walls between them were removed. She had stated that the rent which the defendant was paying was Rs. 2250/- apart from the municipal taxes. It was further alleged in the plaint that since the rent payable was Rs. 2250/-, the building was exempted from the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') as per Section 2(g) of the Act.
Further case of the plaintiff was that when notice was served upon the tenant terminating his tenancy the suit had to be decreed and the defendant had to be evicted. A further direction had to be issued to the tenant to pay the arrears of rent.
A written statement was filed by the tenant countering the allegations made in the plaint and it was clearly stated that there were three shops of the plaintiff which the defendant had taken adjoining to each other and that too over a certain span of time. Initially he had taken shop no. 33/5 and, thereafter, he had taken shop no. 33/2 on rent and subsequently the third shop was also taken by him. The defendant, therefore, took up a case that there were three shops which were let out to the defendant, the rent of which individually on the date when the suit was filed was Rs. 750/- each. This totalled to Rs. 2250/- and, therefore, it could not be said that tenancy was of a single composite building, of which the rent was Rs. 2250/- per month. The defendant, therefore, had stated that the shops in question were definitely covered by the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Further case taken by the defendant was that there was no default on his part and, therefore, the suit had to be dismissed. Upon exchange of pleadings, issues were struck which are being reproduced here as under:-
"1- Whether defendant is in possession of the shop in question as tenant on rent of Rs. 2250/- per month? If so, its effect?
2- Whether provisions of U.P. Act No. 13 of 1972 are applicable to the shop in question?
3- Whether defendant is defaulter?
4- Whether defendant has right to sue after making the property joint?
5- Whether this court has no jurisdiction to try the suit?"
Thereafter various documentary evidence were also filed. Oral evidence was also led. However, in the end, the suit was dismissed leading to the filing of the instant Revision.
Learned counsel for the Applicant in the Revision has stated that when in the year 1993 the shop was a single shop and the rent payable was Rs. 2250/-, then definitely the building was not covered by the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. He further submitted that the court below fell in error when it found that there were three different shops let out to the defendant/opposite party and that, therefore, collectively one single suit could not have been brought against the tenant. He submitted that the finding that the suit as was filed was not maintainable was thus erroneous.
Learned counsel for the petitioner/applicant very emphatically submitted that as per the definition of "building" when there was one building without any partition and when there was one rent being paid of Rs. 2250/- then the finding of the court below that there were 3 different tenancies was erroneous.
Learned counsel for the defendant/respondent, in reply, however, submitted that if there were three shops then they would be considered as three separate tenements and when they were let out to the same tenant at different points of time then the rent payable for the three shops would be separate and, therefore, each shop would be considered a separate building for the purpose of the Rent Control Act. In this context, learned counsel for the defendant relied upon a judgement reported in 1998 (3) AWC 1792 (Ajay Kumar Jaiswal vs. Shanti Singh). Learned counsel for the defendant specifically relied upon paragraph 16 of the judgement and, therefore, the same is being reproduced here as under:-
"The context and the subject-matter in connection with which the word 'building' has been used in clause (g) are Important factors having a bearing on the question. The propriety or necessity of construing the word 'building' is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind, if we turn to the purpose and object of the Act including the amending Act and examine the Scheme of the Act, the only possible and reasonable construction on the language used in clause (g) would be that this clause applies to a building in occupation of the concerned tenant or in other words to that tenement which is the subject-matter of dispute and not to the whole building complex which may be having several separate and independent tenements. A 'building' under the Act means an Independent allottable accommodation, whether singly situated or is part of a building complex. In the same sense, the word 'building' has been used in all other provisions of the Act. Under the scheme of the Act, every single, separate and independent tenement in occupation of a tenant or unauthorised occupant is a 'building' and if any other Interpretation is given to clause (g) it would lead to absurdity which had never been intended by the Legislature. Thus, the accommodation in question which is the subject-matter of the present dispute is a 'building' in the context of clause (g) and the mere fact that another portion in the building complex has been let out to 'Usha Fones' at a monthly rent of Rs. 4,500 will not make the Act inapplicable as the rent paid by 'Usha Fones' is in respect of a separate building (tenament) and its rental cannot be added with that of the accommodation in question for the purposes of determining the ceiling limit of rent as contained in clause (g). For these reasons, the contention raised on behalf of the petitioner is rejected. "
Further learned counsel for the defendant submitted that if two rooms of the same building were let out on different dates under different agreements then a single suit for eviction of the tenant who was common to the two rooms was bad on account of joinder of two different causes of action. Learned counsel for the defendant, to bolster his submissions, cited 1984 ALJ 143 (Ram Chander vs. Judge, Small Cause Court Furrukhabad and others) and specifically relied upon paragraph 2 of the judgement which is being reproduced here as under:-
"2. Although this submission does not appear to have been raised before any of the Courts below but as it goes to very root of the matter and touches the question of jurisdiction for which material facts are on record it has to be entertained and decided. Building has been defined in the Act to mean; 'a residential or non-residential roofed structure'. Similarly tenant and landlord have been defined, 'in relation to the building' to mean a person by whom or to whom rent is payable. Building has to be understood as including a part of it as well. For instance if there are ten rooms in a building, and each is let out separately, then each room is a building for purposes of this Act. What is decisive, however, is the agreement entered between landlord and tenant. The agreement has to be in relation to a building, where there are two agreements for two different rooms may be in the same building then two agreements come into being, two separate tenements are created. It cannot be disputed that one suit against two tenants cannot be filed. Similarly one suit against two tenements of the same tenant cannot be filed. It shall be bad for joining two different causes of action. Reason is obvious. It can well be illustrated by facts of this very case. If petitioner would have served two notices for two tenements claiming Rs. 10/- and Rs. 25/- instead of Rs. 35/- petitioner could have paid the rent of one to save himself from eviction. It may be examined from another angle. Suppose after filing of suit petitioner would have intended to avail of benefit of sub-sec. (4) of S. 20 what amount he should have deposited because arrears, interest, cost of suit for one shall be different than for the two. The petitioner's suit, therefore, was bad."
Further learned counsel for the defendants relied upon various documents which had been filed by him and also were relied upon by the JSCC by which it was clear that the first assessment of the three shops took place in the year 1983 and the subsequent assessment which was relied upon by the plaintiff/applicant of the assessment year 1996 was only for the purpose of re-assessment and he submitted that first assessment itself was relevant. Learned counsel for the defendant-respondent further submitted that the finding arrived at after looking into the various evidence on record namely the receipts which were in the hand writing of the landlord and which clearly reflected that rents for three different shops were being paid by the defendants which totalled to Rs. 2250/- could not be interfered with.
Having heard the learned counsel for the parties, I find that there was a definite finding in the judgment and order of the JSCC that in fact there were three tenements which were let out on three different dates and that they were let out for three different rents. 'Building' in the Act has been defined to mean a residential or a non-residential roofed structure. Similarly, "tenant" and "landlord" had also been defined in relation to a building. Therefore, what had to be decided in the instant case was as to whether one "building" was let out or three different "buildings" were let out. For doing so it had to be seen as to in what manner the letting out was done. In this case it is evident that three different shops were let out on three different occasions and definitely under three different agreements. Therefore, what appears is that there were three different tenement which had to be dealt with individually.
Under such circumstances, I find that the findings arrived at by the JSCC are unassailable. The Revision is, therefore, dismissed.
Order Date :- 19.4.2019 praveen.
(Siddhartha Varma,J.)