Allahabad High Court
Shekhar Bahuguna vs Suresh Chandra Kapoor on 28 September, 2010
Author: Prakash Krishna
Bench: Prakash Krishna
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved/Court No. - 4 Case :- CIVIL REVISION No. - 23 of 2010 Petitioner :- Shekhar Bahuguna Respondent :- Suresh Chandra Kapoor Petitioner Counsel :- Vishnu Gupta Respondent Counsel :- Ashish Bansal,Rama Bansal,Rama Goyal Hon'ble Prakash Krishna,J.
This is tenant's revision under section 25 of Provincial Small Cause Courts Act. Original Suit No.6 of 1992 was instituted by the plaintiff landlord opposite party herein for recovery of arrears of rent, damages and ejectment of the defendant tenant applicant in respect of house no.16, Nyay Marg (12-B Hastings Road), Allahabad which has been decreed on 23rd of September, 2009 by the order under revision.
Though it was a simple suit of small cause nature for recovery of arrears of rent and ejectment by landlord against the tenant, but it took about 17 years in its disposal.
The plaintiff landlord (hereinafter referred as the landlord) presently residing at Delhi. He retired as Chairman-cum-Managing Director, National Building Corporation (a government of India undertaking) in the year 1987.
The original tenant was Hemwati Nandan Bahuguna, the Ex-Chief Minister of U.P. and after his death his son Shekhar Bahuguna and Smt. Kamla Bahuguna inherited tenancy.
The suit was instituted on the pleas inter alia that the property in dispute which is a big bungalow having twelve big rooms, one garage, two big verandah, a big kitchen, two servant quarters along with luxurious amenities with open space in front and behind the house was let out to late Hemwati Nandan Bahuguna who had paid the rent up to February, 1989 and died in the month of March, 1989. After his death his sons and widow namely Smt. Kamla Bahuguna and Shekher Bahuguna without any notice to the plaintiff got the said house allotted by the Rent Control and Eviction Officer vide order dated 31st of March, 1989. The defendants are in arrears of rent since March, 1989 to March, 1992 amounting to Rs.55,500/-. It was further pleaded that none of the defendant has been residing permanently in the premises in question since 1975 when late Hemwati Nandan Bahuguna became Chief Minister of U.P. The defendants are unnecessarily keeping the said bungalow in their occupation although late H.N. Bahuguna during his life time had agreed to vacate the said premises but he could not fulfil his promise as he thereafter, fell ill and subsequently died. Keeping in view the good relations with late H.N. Bahuguna, he did not ask for the return of suit premises immediately after the death of late H.N. Bahuguna. Smt. Kamla Bahuguna has permanent residence at Delhi. She has also accommodation in her own name at Lucknow. Sri Shekhar Bahuguna (the lone contesting defendant) is also permanently residing in palacious residence in Delhi as well as in Lucknow. He occasionally visits Allahabad and resides in the suit premises during election period. It was further stated that the other son of original tenant namely Justice Vijai Bahuguna has purchased a plot in front of Akashpuri near Nyay Marg Crossing from Sarva Hitkarini Sahkari Samiti, Nyay Nagar, Allahabad. Even otherwise also, he would be allotted shortly a government accommodation being Judge of Allahabad High Court.
It may not be out of place to mention here that initially Smt. Kamla Bahuguna, Sri Shekhar Bahuguna and Sri Vijai Bahuguna were impleaded as defendants but subsequently, the name of Vijai Bahuguna was deleted from the array of the parties.
The suit was instituted in the month of May, 1992 and the defendants were duly served and put in their appearance on 23rd of July, 1992 but they took about 15 years in filing the written statement in a suit of small cause nature.
In the written statement filed on behalf of the defendant no.2 (hereinafter referred to as tenant) it was pleaded that late H.N. Bahuguna was the tenant of house in dispute at Rs.60/- per month which was increased to Rs.150/- per month on the request of the landlord, the rent up to March, 1989 was paid to the plaintiff landlord and after the death of original tenant (late H.N. Bahuguna who died on 16th of March, 1989), the plaintiff refused to accept the rent which was personally tendered to him. It was sent through money order and when the money order was refused it was deposited in the case no.403 of 1990: Shekhar Bahuguna Vs. Suresh Chandra Bahuguna under section 30 of the U.P. Act No.13 of 1972 and thus, there is no default in payment of rent. By way of abundant precaution the entire due rent with interest and cost has been deposited under section 20 (4) of the said Act to avoid any controversy. Further, the rate of rent has all along been Rs.150/- per month till it was increased to Rs.2,000/- per month from March, 2006 as per order of the High Court dated 14th of February, 2006. Family of late H.N. Bahuguna consisted of wife late Smt. Kamla Bahuguna, his son Vijai Bahuguna and Shekhar (tenant) and daughter Dr. Rita Bahuguna, Ex-mayor Allahabad and all these family members resided in the house in question. Rita Bahuguna married in November, 1976 and thereafter she left the house in question. Late H.N. Bahuguna was M.L.A since 1952 and thereafter, he became Deputy Minister, Minister in state of U.P., Central Minister and Chief Minister of U.P.. But his family members including the tenant always resided in the tenanted house. Plea that the suit is bad under section 30 of the U.P. Act No.13 of 1972 was also set out in para 36 of the written statement. It was further pleaded that the suit is over valued and for payment of excess court fees the defendant is not liable.
The parties led evidence oral and documentary in support of their respective cases. The landlord examined himself as PW/1 while the tenant examined himself as DW/1. One Vivek Kumar Srivastava, a clerk of Nagar Nigam, Tax Department was examined as DW/2, but his statement was not referred by the either parties during the course of the hearing. He had brought some municipal record relating to the house in question. Sant Prasad Pandey was examined as DW/3.
On the pleadings of the parties as many as nine issues, as mentioned in the judgment of the trial Court, were framed. The trial Court has found that the rate of rent was Rs.1500/- per month, the defendant tenant has committed default in payment of rent, the plea of subletting was decided in favour of the defendant tenant, the notice determining the tenancy was held valid and the deposits made by the tenant under section 30 of the U.P. Act no.13 of 1972 were held to be invalid and it was held that the defendant tenant is not entitled to get any relief under section 20 (4) of the Act.
Heard Sri Shashi Nandan, learned senior counsel assisted by Sri Vishnu Gupta, advocate for the tenant and Smt. Rama Goel "Bansal" for the landlord.
The following points were pressed by the learned counsel for the parties:-
1. Whether the rate of rent was Rs.1500/- per month?
2. Whether the defendant tenant has committed default in payment of rent as arrears of rent was sent through money order and after refusal it was deposited under Section 30 (1) of the Act and the deposit under Section 30 of the Act is a valid deposit or not?
3. Whether the deposits made by the defendant tenant under section 20(4) of the Act is a valid deposit or not?
There being no challenge on other findings returned by the trial Court, stands confirmed.
Point relating to rate of Rent Taking first point first, as stated herein above, the trial Court has recorded a finding that the monthly rate of rent was Rs.1500/-. Shri Shashi Nandan, learned senior counsel for the tenant, submits that there is no whisper in the plaint with regard to the rate of rent. He submits that the plaint has been very cleverly drafted. The Court was taken through the relevant portions of the plaint. A reference to paragraph 7 was made by him in particular wherein it has been stated that the tenant is in arrears of rent since March, 1989 to March, 1992 amounting to Rs.55,500/- and the defendants-tenants are liable to pay the entire arrears of rent. It is true that the plaintiff has not disclosed in so many words that the rate of rent was Rs.1500/- per month. But at the same time, the learned senior counsel accepts that if the aforesaid figure of Rs.55,500/- is divided by months comprising in the period of March, 1989 to March, 1992 which comes to 37 months, it gives the rate of rent as Rs.1500/- per month. The filing of the plaint was preceded by a statutory notice as required under section 106 of the Transfer of Property Act which is dated March 26, 1992. The receipt of the said notice by the tenant is not in dispute. In para 2 thereof it is mentioned in specific words that late H.N. Bahuguna was living as tenant in the entire bungalow no.16, Nyay Marg (12 B Hastings Road), Allahabad on payment of Rs.1500/- per month as rent besides house tax and water tax. On a fair reading of the plaint, there is no difficulty to find out that the monthly rate of rent was Rs.1500/-. It is an acknowledged legal position that the pleadings should be construed liberally and not in a pedantic manner or to find out a fault therein.
The landlord has examined himself as PW/1. He has stated that the house in question was let out by his father to Sri H.N. Bahuguna. He has no idea about the terms and conditions of tenancy. He also pleaded ignorance with regard to the earlier rate of rent or its increase to Rs.150/- before the death of late H.N. Bahuguna. He has further deposed that there was no rent agreement after the death of his father with late H.N. Bahuguna. By making comments on the statement of PW/1, the tenant submits that, as a matter of fact, the landlord has no knowledge about the terms of the tenancy and therefore, the contention of the tenant that the rent was Rs.150/- per month is liable to be accepted. Much emphasis was laid on a particular sentence out of the total deposition of PW/1 wherein he has stated that no monthly rent was agreed upon between Bahuguna Ji and himself. The submission is that in this state of affair the plaintiff has failed to prove that the agreed rate of rent was Rs.1500/- per month and the finding in this regard by the trial Judge is based on no evidence.
In contra, the learned counsel for the landlord, submits that, as a matter of fact, what is the rate of rent is essentially a question of fact and the trial Court having accepted the version of the landlord, rejected that of the tenant in this regard, it is not for this Court to adjudicate the said issue. In other words, the submission is that in view of the limited jurisdiction of this Court while hearing the matter in revision under section 25 of the Provincial Small Cause Courts Act, High Court should not venture to enter into the said controversy.
Considered the deposition of PW/1 carefully as also the findings recorded by the trial Court on the question of rate of rent. It is common case of the parties that letting is very old, which took place around in the year 1946 in between the fathers of the present plaintiff and defendant. It is also not in dispute that no formal rent deed was arrived at by the parties. It is also common case of the parties that there were cordial relations between the parties for a period spread over till the death of late H.N. Bahuguna who died on 16th of March, 1989. The case of the tenant is that initially the rate of rent was Rs.60/- per month which was enhanced to Rs.150/- per month. Evidence led by the tenant has also to be looked upon. The tenant (DW/1) in his examination in chief states that the rent was enhanced from Rs.60/- per month to Rs.150/- per month by late H.N. Bahuguna in his presence and in presence of Sant Prasad Pandey, Krishna Kumar Pandey @ Bachcha Lal and his son Pradeep Kumar Pandey and Bindeshwari Prasad Upadhyay, one year prior to his death. But in cross examination he has a different story to tell. He states that the rent was enhanced by his father to Rs.150/- one month prior to his death. In cross examination he states that his mother Smt. Kamla Bahuguna was also present at that time. But in examination in chief the witness does refer the presence of his mother.
Out of the persons before whom the rent was enhanced he could examine only one witness namely Sant Prasad Pandey, DW/3. He does not state either in examination in chief or in his cross examination that the rent was enhanced to Rs.150/- in his presence by late H.N. Bahuguna. In para 4 of the examination in chief filed on affidavit he has deposed that he was at Delhi in the year 1988 on Holi Festival when the landlord had come to greet H.N. Bahuguna. H.N. Bahuguna asked him to bring Rs.300/- from Smt. Kamla Bahuguna and he brought that amount from Kamla Bahuguna and paid to the landlord as per direction by Sri Bahuguna who stated that this amount is towards the rent of two months and there should not be any arrears. He further states that neither any rent receipt was given nor demanded as relations were very cordial between the parties. This witness does not state anything regarding the enhancement of rent by H.N. Bahuguna in his presence nor he has stated that Smt. Kamla Bahuguna or Vijai Bahuguna (tenant) or any other person was present there. Except the above solitary incidence, the witness does not state any relevant thing relating to the controversy involved in the suit.
The tenant has not produced any other evidence except referred to herein above. It was a case, thus, oath against oath. The trial Court has preferred to believe and has given credence to the statement of the landlord in this regard. It has taken into consideration and in my view rightly the extent of the accommodation in use and occupation of the tenant, the cordial relations between the parties and the high status of the original tenant who undoubtedly achieved many political mile stones in his life. In the plaint and the statement as well the landlord has disclosed the extent of the disputed accommodation. It is a big bungalow situate at Nyay Marg (12-B, Hastings Road), Allahabad consisting of 12 big rooms, one garage, two verandah, one big kitchen, two servant quarters along with luxurious amenities with open space in front and behind the house in question. The extent of the accommodation has not been denied specifically in the written statement. In reply thereof, only this much has been stated that the plaintiff is put to proof of the same. Therefore, the extent of the accommodation as stated in the plaint remains undisputed. However, it may be noted that the tenant in his examination in chief given on affidavit has stated that there are seven rooms besides the servant quarters and and a garage, one kitchen, three bath rooms and a lawn. The house in question is situate, as noticed by the trial Judge and was not disputed before me, very near to the Allahabad High Court and can fetch at a very modest estimate at least Rs.20,000/- per month presently. The trial Court has accepted the evidence of the landlord. He after making an analysis of the evidence of the tenant and taking into consideration the contradictions therein has preferred to believe the statement of the plaintiff which also finds corroboration from the attending facts and circumstances of the case such as the extent of the accommodation, the high status of late H.N. Bahuguna, the original tenant and the cordial relations between the parties which existed till the death of H.N. Bahuguna. The view taken by the trial Court is perfectly justified and plausible one. The learned senior counsel could not point out any perversity or illegality in the said finding of the trial Court. It is situate at a posh locality of Allahabad. The trial Judge has found that the statement of DW/3 is not reliable and rejected it. No attempt was made before this Court to challenge this part of finding of the trial Court. This further fortifies the finding in this regard as reached by the trial Court.
As noted herein above, the sheet anchor of argument of the tenant is the solitary sentence of landlord out of his whole deposition that no rate of rent was agreed upon in between Bahuguna Ji and himself, needs consideration. The comment of learned senior counsel for the tenant that landlord is not aware about anything, is not at all impressive. The statement of a witness has to be read as a whole and it cannot be read out of the context. On a plain reading of the statement of the witness would show that the house in suit was let out by his father to H.N. Bahuguna and his father died in the year 1966. What he means to say is that there was no fresh agreement with Sri Bahuguna with regard to the rate of monthly rent. Bahuguna Ji used to pay the rent to him which he was paying earlier. As noticed herein above, the relations between the parties were sweet and cordial. It is also the case of the parties that no rent receipt was issued or demanded. Therefore, it follows that nothing turns out from the said sentence of the witness. The parties were on issue with regard to the monthly rate of rent and they led their respective evidence. In this facts situation, the question of rate of rent as was rightly pointed out by Smt. Rama Goel "Bansal" is essentially a question of fact and is binding on this Court hearing a revision under section 25 of the Provincial Small Cause Courts Act which confers a restricted jurisdiction to a revisional Court.
The whole gamut of the tenant's argument that this Court should prefer to give more weight to the tenant's evidence than that of landlord in view of restricted jurisdiction in revision, cannot be accepted.
Reliance was placed on Ajai Agrawal Vs. Har Goving Prasad Singhal, AIR 2006 SC 282 (paras 19 and 20 in particular) that in absence of any proper evidence regarding the purported agreement for periodical enhancement of the rents, it becomes difficult to accept the story of such agreed enhancement as made out on behalf of the landlord. The aforesaid observations were made with reference to the case of landlord that there was an oral agreement between the parties for periodical enhancement. The aforesaid observations should be read in the context of the facts of that case and the controversy involved therein. If so read, the said decision has hardly any application to the facts of the present case. The landlord herein has not even whispered for periodical enhancement of any rent. On the other hand, the pure and simple case is that the rent which original tenant used to give was demanded from the present defendants. On the contrary, the theory of enhancement of rent was set up by the tenant which he failed to prove.
In view of the above discussion, the finding recorded by the trial Court that the rate of rent was Rs.1500/- per month is a well considered finding and calls for no interference in the present revision.
The Point relating to Default:
Now, I take up the second issue relating to default in payment of rent. The principal defence of the tenant in this regard is that there is no default in payment of rent as the rent having been offered to and refused by the landlord, has been deposited under section 30 of the Act. The landlord, on the other hand, submits that the said deposit is not valid and even if it is taken to be valid, still the tenant has committed default in payment of rent. Therefore, there are two aspects of the issue namely (i) Whether the deposit under section 30 of the Act is valid?; and (ii) even if the deposit is valid, whether the tenant is liable for eviction having committed default in payment of rent as envisaged under section 20 (2) (a) of the Act?
The landlord has come out with the case that the rent has been paid to him for the period up to February, 1989. The original tenant has died on 16th of March, 1989 at United States of America and after his death his successors have not paid even a single penny to him. On the contrary, the defendants got the house surreptitiously allotted in their favour by obtaining an exparte allotment order dated 31st of March, 1989. The said matter is pending separately. He on account of death of the original tenant kept quite and expected that the rent shall be offered by the defendants but to his utter shock when he came to know that the defendants got the house in dispute allotted in their names, served a notice demanding the arrears of rent and determining the tenancy under section 106 of the Transfer of Property Act.
Against this, the tenant has come out with the case that after the death of original tenant the rent was personally offered to the landlord who refused to accept it and it was then sent by two money orders both dated 5th of January, 1990. These money orders were refused and therefore, the rent was deposited under section 30 of the U.P. Act no.13 of 1972.
The question which falls for consideration is whether the said deposit of rent under section 30 of the Act is a valid deposit in the eyes of law or not.
Before considering the said aspect of the case, it may be noted that the case of landlord is that the original tenant, Bahuguna Ji, had paid the rent up to February, 1989 who died on 16th of March, 1989 and the arrears of rent is due since March, 1989. As against this, the tenant's case is that the rent was offered by him but was not accepted by the landlord. This boils down to this that the rent as pleaded by the landlord is due from March, 1989 and onwards.
The theory of sending rent through the aforesaid two money orders has not been accepted by the trial Court. These money orders have been rejected on the ground that there is no evidence to show that these money orders were ever sent to the landlord. The case of the landlord that these money orders were never offered to him and he never refused to receive them has been accepted by the trial Court. Photocopies of two postal receipts and the last portion at bottom of each M.O. earmarked as "space for communication", have been filed.
Significantly, the original documents have not been filed in the present suit and it has been stated that they have been filed in the proceedings under section 30 of the Act. Their photo copies have been filed as paper nos. 5C1 and 5C2. These documents do not contain anywhere the address of landlord. These are in the form of two postal receipts showing that a sum of Rs.900/- and Rs.250/- were sent vide postal receipt nos. 432 and 433. From the postal receipts which are not very legible, the tenant submits that these were despatched on 5th of January, 1990 from Allahabad High Court post office. It is difficult to decipher with certainly the date of the postal receipts as 5.1.1990. Be that as it may, it is clear that there is no indication at what address these money orders were sent. The endorsement of refusal is not at proper place but on the "space meant for communication". Importantly, the said endorsement of refusal is unsigned and undated and contains no seal of postal department of any post office either sender or of addressee post office. In other words, the endorsement of refusal has no sanctity. It can be made by any person. A bare look at the documents gives an impression that they are manipulated and manufactured ones. It definitely creates grave doubt if at all such money orders were ever tendered. The relevant portion of M.O. Coupon has been withheld for no explanation.
A blank form of money order was produced by the counsel for the parties during the course of hearing. The theory as propounded by the tenant that only the last portion of the said form meant for "space for communication" was only returned, is not acceptable. It was pointed out to Sri Shashi Nandan, learned senior counsel that in every case whether the money order is tendered or not to the addressee, the portion marked as "M.O. Acknowledgement" which is reproduced below, is returned to the sender; the said portion is meant for the sender as a receipt of receiving the money order amount:-
M.O. ACKNOWLEGEMENT M.O. No. ......................... ..........Date ....................................................
(Sender's .................................................................................................
Name .................................................................................................
& ................................................................................................
Address) .................................................................................................
---------------------------------------------------------------------------------------
Received Rupees....................................
On............................................................
Payee's Signature ....................................
Date Stamp Name.......................................................
The M.O. Acknowledgement portion having not been filed by the tenant and there being no endorsement of refusal by the postman, therefore, goes a long way against tenant. Sri Shashi Nandan, learned senior counsel, initially, disputed and submitted that only a portion marked for "Space for Communication" is returned after delivery/refusal of the money order to the sender. But when he was asked to verify the said fact from the post office he after verification admits that the portion marked as "M.O. Acknowledgement" is returned to the sender. There is no explanation whatsoever as to why the said portion i.e. the "M.O. Acknowledgement" portion of money order has been withheld and not filed by the tenant? The endorsement of the postman of refusal, if any, is required to be made on the "M.O. Acknowledgement" portion so that the sender may be made aware as who has received or refused the money order amount.
Smt. Rama Goel "Bansal", the learned counsel for the landlord, is right in her submission that the alleged money orders were admittedly sent through Sri Uma Shanker Dwivedi for the tenant as per the writing made on the "Space for Communication" but he has not been produced to prove the sending of money orders, and it is sufficient to draw an adverse inference against the tenant.
Deposit under section 30 of the Act:
Section 30 of the U.P. Act No.13 of 1972 provides for deposit of rent in Court in certain circumstances. If any person claiming to be tenant of a building tenders any amount as rent in respect of the building to its landlord and the landlord refused to accept the rent the same may be deposited in Court in the prescribed manner and the tenant shall continue to deposit the rent which he alleges to be due for any subsequent period until the landlord, in the meantime, signifies by notice in writing to the tenant his willingness to accept it, vide sub-section (1) of section 30 of the Act. Interpreting the said provision, it has been held, time and again, by this Court that there should be a refusal by the landlord to accept the rent which is the sine qua non for a valid deposit under section 30 (1) of the Act. The said legal proposition was not disputed by the learned senior counsel for the tenant and the arguments proceeding on that footing. On the facts situation as existed in the case and discussed above, it has been found that as a matter of fact, the alleged two money orders were not even tendered to the landlord and therefore, the question of their refusal does not arise. This being so, the very foundation of making the deposit under sub-section (1) of section 30 of the Act goes. It is unthinkable that in absence of any refusal by the landlord as the present case is, a tenant could make a valid deposit under section 30 (1) of the Act. This is one aspect of the case but the matter does not end here.
The other aspect of the case, as was referred by the learned counsel for the landlord, is sub-section (4) of section 30 of the Act which provides that on any deposit being made under sub-section (1), the Court shall serve a notice on the landlord and the landlord may withdraw the amount of deposit by filing an application in the Court. Rule 21 framed under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rule, 1972 lays down the procedure for making a deposit under section 30 of the Act.
Paper No.57C/7 is the certified copy of the application in the prescribed form E for deposit of rent through which the rent at the rate of Rs.150/- for the period April, 1989 to December, 1990 was deposited. It is dated 21st of December, 1990. Under column no.8 which relates to the circumstance in which the rent is deposited. It has been stated that the rent paid through money orders dated 5.1.1990 was refused by the landlord. The landlord persisted in refusing, hence the rent is being deposited under section 30 (1) of the Act. It was registered as Misc. Case No.403 of 1990. Certified copy of the order sheet filed as Paper No.125 C would show that the Court on 2nd of December, 1990 permitted the tenant to deposit the rent by 18th of January, 1991 and then, give information of it on 18th of January, 1991. The entry in the order sheet dated 18th of January, 1991 shows that none was present but the Court ordered to issue notice to the O.P. From the subsequent entries of the order sheet it would show that none appeared on behalf of the tenant on any date but the tenant maintains that he continued to deposit the rent in the said misc. case. At this stage, the landlord contends that no notice was issued by the Court in the aforesaid misc. case and he had no information or knowledge actual or constructive that the rent is being deposited in the said misc. case. For the sake of convenience, Rule 21 of the Rules is quoted below:-
"Deposit of rent. [Section 30]. -- (1) Any person desirous of depositing rent under Section 30 shall apply in Form E. The application shall be accompanied by as many copies thereof as there are opposite-parties, and also the process fee and notices in Form F. (2) The deposit shall be made under the Head "P--Deposits and Advances --II- Deposits, not bearing interest--C--Other Deposit Accounts- (B) Departmental and Judicial Deposits-Civil Deposits--Civil Court's Deposits."
(3) On such deposit being made, the Court shall cause notice of the deposit to be served on the opposite-party along with a copy of the application.
(4) Where a notice of deposit is returned unserved, the Court shall fix a date on or before which the applicant shall deposit fresh process fee and notice in Form F. If within the time so allowed or within such extended time, as the court may grant, the applicant fails to take steps as above, the application shall be rejected and the amount deposited shall be refused to the applicant.
(5) In the case of continuance of deposit of rent for any subsequent period, fresh application shall not be necessary. But process fee and the notice in Form F shall accompany every deposit."
The learned senior counsel for the tenant, on the other hand, submits that the tenant continued to make the deposit under section 30 and from the order sheet, it appears that the notices were directed to be issued to the landlord of the said misc. case vide order dated 18.1.1991. The said order reads as follows:-
"None present. Issue notice to O.P. Fix 28 March, 1991 for objection and disposal."
The learned senior counsel for the tenant submits that the above order is indicative of the fact that necessary steps were taken by the tenant for issuance of notice which is being disputed by the learned counsel for the landlord. The trial Court has found that Rule 21 has not been complied with in as much as there is no material to show that various requisite steps such as filing of process fee and notice in Form F accompanying every deposit as provided by clause (5) of Rule 21, were filed. A bare perusal of the order sheet of the aforesaid misc. case no.403 of 1990 does not show that a notice of the case was ever served or tendered or refused by the landlord. Also there is no material to show that with every deposit process fee and notice in Form F meant for service on landlord were filed by the tenant In Chhotey Lal Vs. 14th Additional District Judge, Kanpur, 1994 (1) ARC 289 it has been held by this Court that mere deposit of amount under section 30 of the Act is not sufficient for treating the deposit as due compliance of law and availability of sum to the landlord. The provisions of sub-rules (3) and (5) of the Rule 21 of the Act have been interpreted in the following manner:-
"The provision of sub-rules (3) (5) of the said Rule are important. For the first deposit under Section 30, the tenant was required to take steps so that a notice about the deposit could have been served to the landlord. In subsequent deposit for continuation of depositing the amount of rent, fresh application was not necessary but process fee and the notice in Form 'F' was necessary and it is a mandatory requirement. The Courts below concurrently held that petitioner had not taken steps to serve the plaintiff-landlords after the deposit under Section 30 was made by him. The finding recorded by the Courts below on this point is conclusive as finding of fact and learned Counsel for the petitioner could not assail the said finding that it suffered with any such irregularity which could have necessitated interference under Article 226 of the Constitution. Thus, this point alone is sufficient to affirm the judgment of the Courts below that the petitioner was a defaulter and failed to pay the amount due after receipt of the notice under Section 106 of T.P. Act, according to law."
Pashupati Singh Vs. First Additional District Judge, 1981 ARC 222 is an authority for the proposition that a notice of the application filed under section 30 (1) has to be given to all the opposite parties mentioned in the application and if an application has been dismissed for default then the amount which is deposited by the applicant has to be refunded to the applicant tenant.
In Jagat Prasad Vs. District Judge, Kanpur, 1995 (2) 360, relied upon by the landlord, the Apex Court has held though in a slightly different context under Order 15 Rule 5 C.P.C that the law prescribes the procedure as to deposit under the U.P. Act No.13 of 1972. Such a procedure if complied with alone will be valid defence to a petition for eviction on the ground of arrears of rent. The relevant portion is reproduced below:-
"Law prescribes the procedure as to the deposit under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Such a procedure if complied with alone will be a valid defence to a petition for eviction on ultimate order of eviction passed against the tenant will have to be upheld. This means the order of eviction is sustained."
The other decisions Narain Prasad Vs. Ixth Addl. District Judge, 2004 (2) ARC 211 and Panna Lal Vs. XIIIth Addl. District Judge, Meerut, 1991 (1) ARC 473, relied upon by the landlord reiterates the above views.
As against the above, the contention that question of validity of deposit under section 30 of the Act was not in issue in the suit is liable to be rejected. On the question of default in payment of rent the parties were on issue and the deposit of rent as alleged by the tenant is interlinked and intimately connected with the said issue. As a matter of fact, a specific issue in this regard being issue no.8 was framed and decided by the trial Court. It is the defendant tenant who pleaded vide para 36 of the written statement that the suit is bad under section 30 of the U.P. Act No.13 of 1972.
Vinay Kumar Agrawal Vs. Additional District Judge, (2001) ACJ 937 is an authority for the proposition that the deposit made under section 30 of the Act does not automatically wipes off the arrears of rent which otherwise are payable to the landlord. The gist of the provisions of section 30 of the Act simply is that whether the tenant asserts and prima facie is able to satisfy the Court that the landlord has refused to accept the rent tendered by him, then only he may deposit the amount of rent under section 30 of the Act and in that event, it shall be treated that the tenant has paid the rent to the landlord through the agency of the Court and in such circumstances, the consequence of non-payment of rent would not follow. It further says "that conversely, a tenant cannot rush to deposit the amount in proceedings under section 30 of the Act (without refusal of the landlord) and then assert that he is not in arrears. The validity or otherwise of the deposit made under section 30 of the Act is open to challenge in a suit for ejectment before a competent Court where the question of validity of deposit arises."
Further, in part of the paragraph 15 of the aforesaid judgment it has been laid down that "since the tenant petitioner has failed to prove the refusal on the part of the landlords, the deposit made by him under section 30 of the Act is of no consequence and would not discharge him of the liability to pay the arrears of rent. He cannot use the invalid deposit made under section 30 of the Act as a shield against landlord."
The above enunciation of law answers fully the argument of the tenant.
In Girdhari lal Mehra Vs. District Judge, Varanasi, 1984 (1) ARC 126 Hon'ble Mr. Justice R.M. Sahai J. (as He then was) examined the scheme of section 30 of the Act. It has been held that the Munsif who is conferred with jurisdiction under section 30 (3) of the Act has to be prima facie satisfied of the fact that the person who made application was a person claiming to be a tenant of the building. The law does not require anything further. At least, it does not contemplates adjudication. It has been further laid down that "an order which is passed without hearing or ever notice obviously cannot operate as res judicata. In Haji Abdul Karim's case (Haji Abdul Karim Vs. Mohd. Ismail, 1978 UPRCC 691), this aspect has been discussed elaborately." In this very case it has been also laid down that there is no provision in section 30 of the Act which permits the landlord to file objection requiring the Munsif to decide and adjudicate the dispute about claim whether the person who was seeking to make deposit was a tenant or not. This being so, the question of validity of deposit under section 30 of the Act was to be adjudicated upon in the suit filed by landlord or in any other proceeding where the parties are on issue with regard to the payment of rent. The necessary conclusion, therefore, is that the legality and validity of the deposit under section 30 of the Act was open to be adjudicated upon in the suit and it has been rightly done by the trial Court.
The learned senior counsel for the tenant has referred Mohd. Rafiq Vs. Ist Addl. District Judge , 1996 ACJ 457 wherein also in para 4 it has been observed that the Court, where the amount is deposited under Section 30 of the Act, is not entitled to decide the question conclusively as to whether the tenant is entitled to deposit the amount as alleged by him. In case there is dispute as to the existence of the ground of deposit under Section 30 of the Act, it will be open to the parties to establish the existence of those facts in a regular suit or before a competent court where the question arises regarding validity of the deposit.
The other aspect of the case as was argued by the landlord is that even if, for the sake of argument, every thing what the tenant says is taken as gospel truth, the tenant is liable for eviction as the rent for the month of March, 1989 has not been tendered or offered to the landlord. The original tenant H.N. Bahuguna expired on 16th of March, 1989. The rent for the month of March,1989 fell due in April, 1989. The attention of the Court was invited towards that part of the statement of the tenant where he has stated that the rent was not being paid in advance. In his cross examination he has stated that he does not remember whether his father has ever tendered the rent in advance to the landlord. The theory of advance payment of rent has neither been pleaded in the written statement nor proved by evidence. His pure and simple case is that after death of his father the rent was offered personally and when it was refused by the landlord it was tendered through money order and thereafter, deposited under section 30 of the Act. Through two M.Os. rent for the period of May, 1989 and onward were allegedly tendered, while it was due from March, 1989 and under Section 30(1) it was deposited for the period April, 1989. The rent due for the month of March, 1989 was not deposited.
The upshot of the above discussion is that the deposit made by the tenant under section 30 of the Act is not a valid deposit. Firstly, there was no refusal by the landlord to accept the rent allegedly tendered through money order, secondly the provisions of Rule 21 have not been complied with as notice was never tendered or served or refused by the landlord and thirdly that no rent was deposited for the month of March, 1989.
In Faiyaz Khan Vs. Ivth Additional District Judge, Varanasi and others, 1985 (1) ARC, 433 it has been held that the rent was sent through M.O. but the amount was short, landlord is justified in refusing to accept the amount. The amount deposited by the tenant under section 30 of the Act if found short, the tenant is liable for eviction on the ground of default.
Significantly, it may be noted that in the money order form it has been stated that the rent for the months of May, 1989 to October, 1989 is being tendered. There is no mention as to what happened with regard to the rent for the months of March and April, 1989. In the prescribed application form for making a deposit under section 30 of the Act, rent for the period of April, 1989 or onwards has been deposited. Against column 5 of the prescribed form which provides the date on which the rent was last paid for which the receipt, if any, shall be filed with the application - March, 1989 has been written. Logically, it follows that the rent for the month of March, 1989 which fell due in April, 1989 was neither tendered personally nor through money order nor deposited under section 30 in the court. A specific query in this regard was put by the Court to the learned senior for the tenant but he could not give any reply nor could he refer any material in this regard.
In view of the above discussion, looked from any angle, without entering into the question as to whether the question of default in payment of arrears of rent is a finding of fact or otherwise, this Court on the examination of the record with the assistance of the counsel for the parties finds that the finding returned by the trial Court holding the tenant as defaulter in payment of rent is on terra firma and calls for no interference in revision. This disposes the point no. 2.
Point Relating to Deposit under Section 20 (4) of the Act:-
The tenant submits that in view of section 20 (4) of the U.P. Act No.13 of 1972, the Court may, in lieu of passing a decree for eviction on the ground of arrears of rent, pass an order relieving the tenant against his liability for eviction. The said provision contemplates that if on the date of first hearing, 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 together with interest thereon at the rate of 9 per cent per annum and the landlord costs of suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of section 30, the decree for eviction may not be passed. Explanation (a) attached to the said sub-clause defines the expression "first hearing" as first date for any step of proceeding mentioned in the summons served on the defendant. In para 35 of the written statement the defendant pleads that in order to avoid unnecessary litigation and to have peaceful life he has deposited the entire requisite amount amounting to Rs.49,958/- as contemplated under section 20 (4) of the Act which includes the rent from 1st of March, 2006 to 30th of June, 2007 (16 months) @ Rs.2,000/- per month. The said plea has been negatived by the trial Court while deciding the issue no.6 on the ground that the deposit was not made in accordance with law on the specified date i.e. on the date of first hearing of the suit. Disputing the said finding, the learned senior counsel for the defendant tenant applicant submits that the finding returned by the trial Court with regard to the date of first hearing is incorrect and according to him it is 27th of July, 2007 when the written statement was filed by the tenant. According to the landlord, 23rd of July, 1992 is the first date of hearing and in any case, it was 15th of September, 1992.
Explanation (a) to section 20 (4) of the Act reads as follows:-
Explanation -- for the purposes of this sub-section --
(a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant.
The aforesaid provision has been subject matter of interpretation from time to time and finally by the Apex Court also. In Ashok Kumar Vs. Rishi Ram and others, 2002 SC FBRC 421 = AIR 2002 S.C. 2520, it after taking note of its earlier pronouncements on the subject has held as follows:-
"8. Rule 1 of Order V speaks of issue of summons. When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 5 of Order V says that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit which shall be noted in the summons. However, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. It may be apt to notice here that sub-section (3) of Section 20 of the Act was deleted in U.P. Civil Laws Amendment Act, 1972 with effect from September 20, 1972 and Rule 5 was inserted in Order XV of the Civil Procedure Code which deals with disposal of the suit at the first hearing. Explanation 1 to Rule 5 of Order XV defines the expression "first hearing" to mean the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. But the said expression, as noticed above, is defined in clause (a) of Explanation to sub-section (4) of Section 20. Section 38 of the U.P. Act says that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act or in the Code of Civil Procedure, therefore, the definition contained in clause (a) of Explanation to sub-section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order XV of the Code of Civil Procedure as applicable to the State of U.P. It is too evident to miss that in contra-distinction to the "filing of written statement" mentioned in the definition of the said expression contained in Rule 5 of Order XV, the language employed in clause (a) of the Explanation to Section 20(4) of the U.P.Act, refers to the first date for any step or proceeding mentioned in the summons served on the defendant'. In our view those words mean the first date when the court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement. The controversy is no longer res integra. The aforementioned provisions fell for consideration of a three-Judge Bench of this Court in Siraj Ahmad Siddiqui vs. Prem Nath Kapoor [1993 (4) SCC 406]. The Bench laid down as follows :
"The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression "first hearing" for the purposes of Section 20(4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a "hearing" that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary."
Coming to the facts of the present case, the order sheet shows that on 30.6.1992 the Court received the case by transfer. It ordered to register the case and issued notices to the defendants fixing 23rd of July, 1992 for issues. On 23rd of July, 1992, the counsel for the plaintiff and defendants appeared and the counsel for defendants, Sri K.N. Tripathi, filed his memo of appearance vide paper no.7C and prayed that a copy of the plaint may be given to him. Copy of the plaint was given to him as noted in the order of that date. 17th of August, 1992 was fixed for w.s./issues. The order sheet dated 23rd of July, 1992 reads as follows:-
" izLrqr gqvkA oknh o izfroknhx.k ds vf/koDrk mifLFkr gSaA izfroknh ds vf/koDrk us 7lh ipkZ nkf[ky fd;kA izfrfyfi dh izkFkZuk dhA izfrfyfi nh tkosA izfrfyfi nh xbZA 17-8-92 dks WS/Issue gsrq izLrqr gksA "
Sd/- illegible On the margin of the order sheet there is endorsement by Sri K.N. Tripathi, Advocate, for the defendants that he has received the copy of plaint. The order dated 23.7.1992 also says so.
When the matter was taken up on 17th of August, 1992 which was fixed for filing of written statement and issues, adjournment was again sought for by the defendants which was allowed. On 17th of August, 1992 two application Nos. 8D and 10 D were filed on behalf of the defendants. Through 8D application filed by Shri K.N. Tripathi, Advocate, one month time to file written statement was prayed for and was granted. Through another application 10D filed on behalf of Shri Shekhar Bahuguna, the same old story that the copy of plaint was not received along with the summons was repeated. On the margin the plaintiff's counsel endorsed that the copy of the plaint has already been supplied. But the court ordered the plaintiff to give copy and fixed 15.9.1992 for W.S./Issues. On the next date, a copy of the plaint was supplied and 12th of October, 1992 was the date fixed for W.S./issues and 12th of October, 1992 was the next date fixed. On that date, none appeared nor any written statement was filed. The judicial function of the Court was suspended on account of sad demise of a judicial officer and 30th of October, 1992 was fixed. On 30th of October, 1992 written statement was not filed. The Presiding Officer was on leave and 16th of November, 1992 was fixed. Thereafter, few dates were fixed. The defendants instead of filing written statement approached the High Court by means of a writ petition being writ petition no.38371 of 1992 and obtained the stay order therein. The said writ petition was ultimately dismissed on 14.2.2006.
The trial Court has held that number of dates were fixed before the tenant could obtain stay order in writ petition from the High Court, for filing the written statement and he failed to deposit the requisite amount under section 20(4). It has not recorded a definite finding as to what was the date of first hearing. The learned counsel for the tenant submits that since the copy of the plaint was not supplied along with summons, the date of filing of written statement which according to him is 27th of July, 2007 (after dismissal of the writ petition by the High Court) will be the date of first hearing. It is difficult to agree with him. The summons was served fixing 23.7.1992 for filing the written statement. The defendant tenant appeared on that date through his counsel Sri K.N. Tripathi. It is recorded in the order sheet and to the effect that an endorsement of Sri K.N. Tripathi, advocate, is also there, the copy of the plaint was supplied to him on that date and thereafter, 17th of August, 1992 was the date fixed for filing written statement/issues. Therefore, 17th of August, 1992 shall be deemed to be the date of first hearing. Written statement was not filed on that date and adjournment was sought for and was granted. At this juncture, the tenant submits that Sri K.N. Tripathi, Advocate, was not authorized by him as there is no Vakalatnama on record. But he could not dispute that a memo of appearance was filed by him which is paper no.7 C on the record. The copy of the plaint if not delivered earlier along with summons was given to him as per endorsement by the Court and Sri K.N. Tripathi, Advocate on the order sheet dated 23rd of July, 1992, fixing 17th of August, 1992. Therefore, 17th of August, 1992 will be treated as a date of first hearing. Neither the tenant nor his witness has averred at any stage of the proceeding that Sri K.N. Tripathi, Advocate, was not authorized to appear on their behalf.
Having taken advantage of getting the case adjourned on 23rd of July, 1992, it is not open to the tenant to take a 'U' turn and contend that Sri K.N. Tripathi was not his advocate. At this juncture, it may be noted that after the death of original tenant H.N. Bahuguna, the defendants namely Shekhar Bahuguna and Smt. Kamla Bahuguna became joint tenants as held by the Apex Court in the case of Harish Tandon Vs. Addl. District Magistrate, AIR 1995 SC 676 and service of summons on either of them is sufficient. In this very case the Apex Court has quoted the following passage from its earlier decision in the case of H.C. Pandey Vs. G.C. Paul, 1989 (2) ARC(2) 26 (S.C.):-
"It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants."
Then, it has recorded its conclusion in the following manner:-
"It appears to us, in the case of H.C. Pandey v. G.C. Paul (supra), it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants."
Shri K.N. Tripathi, Advocate, had appeared on 23.7.92 and it is who filed the application no.8D on 17.8.1992, has prayed time for W.S.. In his application he has stated that he is representing the defendants, who received the copy of plaint on 23.7.1992 for the defendants. Mother and son were the defendants. Therefore, 17.8.1992 was the first date of hearing.
On 17th of August, 1992 an adjournment was sought for by the counsel vide paper No.8 D on the ground that he could not prepare the written statement on account of his ill health. Inspection of number of papers are required which could not be done due to paucity of time. Consequently, he prayed one month's time for filing of the written statement through the said application. The time prayed for was granted. This also shows that the case was not adjourned on 17th of August, 1992 on account of non giving of copy of the plaint. On the other hand, the contents of the adjournment application seeking time for preparation of written statement are indicative of the fact that the defendants tenants were fully aware about the contents of the plaint allegations. Had it been not so, very conveniently they could have sought for adjournment due to non supply of the copy of the plaint. On the margin of the application the court's order as recorded is reproduced below:-
"Counsel is ordered to file Vak. Fix 15.9.92 for w.s./issues."
Sd/- 17.8.92.
The writ petition was dismissed which was filed by the tenant on 14.2.2006 and the written statement was filed on 27.7.2007. Now, I have to examine the contention of the tenant that 27.7.2007 the date on which the written statement was filed, according to him, is the first date of hearing. A bare perusal of the order sheet would show that after the dismissal of the writ petition, a certified copy of the judgment along with an application was filed before the Court below and the Court below by the order dated 9th of May, 2006 ordered that the notices may be issued to Sri R.K. Sharma, Advocate, to the defendant Sri Shekhar Bahuguna and to Sri R.K. Pandey, Advocate, for 18th of May, 2006. On 18th of May, 2006 none appeared on behalf of the defendant and it was adjourned to 20th of May, 2006 and on that date the Presiding Officer was on leave and thereafter, 15th of July, 2006 was the date fixed. On that date also, none appeared on behalf of the defendant and 26.7.2006 was the next date fixed. On that date, the plaintiff informed the Court that the defendant no.1 has died and the remaining defendant is not appearing. The Court ordered that the notices may be issued to the remaining defendant requiring him to appear on 28th of August, 2006. As the defendant was not served and thereafter, 28th September, 2006 was fixed and on 28th of Separately, 2006, 26th of October, 2006 was fixed.
The order sheet dated 26th of October, 2006 records that the service of summons on the tenant Shekhar Bahuguna is sufficient. But none is present on his behalf.
The case was adjourned for 16th of November, 2006. On 16th of November, 2006 both the plaintiffs and defendants appeared. For the sake of convenience the order sheet dated 16th of November, 2006 reads as follows:-
"Case called out. The learned counsel of plaintiff and defendant Shekhar Bahuguna are present. 34 C application on behalf of defendant for dropping the proceeding and consignment of file, let its copy be given to plaintiff's counsel. It has been said by the learned counsel for the defendant that the suit was dismissed on 30th of July, 2001 and then not yet restored. 32 C application on behalf of plaintiff for filing 33 C affidavit on record. Keep on file.
Office is directed to search out the order sheet of original suit after 3rd of May, 2001. Put up on 29th of November, 2006 for objection/disposal of 34 C."
Thereafter, the case was taken up for disposal of 34 C on 29th of November, 2006, 14.12.2006, 4.1.2007, 12.1.2007, 27.1.2007, 9.2.2007, 24.2.2007, 12.7.2007, 22.3.2007, 2.4.2007, 3.4.2007, 25.4.2007, 14.5.2007, 28.5.2007, 4.7.2007, 11.7.2007 and on 12.7.2007.
On 12.7.2007 the application of defendant was rejected and 27.7.2007 was the date fixed for disposal of the application 35 C filed under Order 15 Rule 5 C.P.C. The written statement was filed on 27.7.2007. As noticed herein above, the defendant tenant after dismissal of the writ petition appeared on 16th of November, 2006 and the service of notice was held sufficient as per order sheet dated 26.10.2006. The date of first hearing will be 16th of November, 2006, if not earlier, on the facts of the present case as earlier before filing the writ petition various dates for filing of written statement were fixed but the tenant instead of availing the opportunity filed the aforesaid writ petition in the High Court and obtained the stay order. The writ petition was ultimately dismissed on 14.2.2006 and the proceedings in the suit were resumed after giving due notice to the defendant tenant who as a matter of fact, had appeared on 16th of November, 2006. Therefore, 16th of November, 2006, it being a suit of small cause nature will be the date of first hearing. As noticed herein above, thereafter number of dates were fixed but the defendant failed to file written statement and took a strange plea for the consignment of the record of suit on the ground that it was dismissed in default during continuance of the stay order in the writ petition. Obviously, the mistake was of the Court in dismissing the suit in default as the stay order obtained on 4.4.1996 was operative till the disposal of the writ petition on 14.2.2006.
This clinches the issue and it not necessary for me to refer the decisions relied by the learned counsel for the parties relating to effect of non accompanying with a copy of the plaint along with summons; such as Shafiqur Rehman Khan Vs. The Iind Addl. District Judge, 1982 ARC 729.
The other aspect of the case which was not examined even by the trial Judge is that a deposit contemplated under section 20 (4) is to be made unconditionally by the tenant. It says that the deposit should be made at the first hearing of the suit and the tenant unconditionally pays it. It means to avail benefit of sub-section (4) of section 20 which is in nature of giving a second chance to the tenant to save his tenancy if the eviction is sought on the ground of default in payment of rent even after the filing of suit is to deposit the amount as demanded by the landlord along with costs of the suit etc.. As found herein above, neither the rent has been offered @ Rs.1500/- per month since March, 1989 nor even a single penny has been deposited or paid or offered for the said period on the first date of hearing of the suit. This being so, the tenant has failed to fulfil the conditions of section 20(4) of the Act and the finding returned by the trial Court is perfectly justified.
The Point Relating to Additional Evidence:-
Now, remains the disposal of the application no.200811 of 2010 filed under Order 41 Rule 27 C.P.C read with section 151 C.P.C dated 19th of July, 2010 to admit the papers filed along with list of papers as additional evidence in the above revision.
By means of the application, the tenant wants to take on record a copy of the letter dated 17th of May, 2010 written by Uma Shanker Dwivedi for the tenant addressed to the Postmaster, High Court Branch Post Office, Allahabad and its reply dated 17th of May, 2010. It has been stated that the tenant approached through the above letter to the Post Office, High Court Branch, Allahabad requesting him to provide him a complete copy of M.O. Form on which the address of sender and address of the addressee of the M.O. is given in respect of M.O. Dated 5.1.1990 sent to Suresh Chandra Kapoor R/O D-6/17 Basant Vihar, New Delhi. He had no knowledge that the address part of the M.O. is not returned to the sender of the M.O. And he was never given advise by his counsel to obtain such certificate and therefore, the same could not be obtained earlier. In the counter affidavit, the landlord has questioned the maintainability of the application and raised a plea that this Court has no jurisdiction while hearing a revision under section 25 of the Provincial Small Cause Courts Act to entertain such application. The application has been filed on "totally false story made out for the purposes of delay in disposal of the present revision". The information of money order has been sought after a gap of about 20 years when it was proved before the Court that in the money order, the tenant did not mention the address of the landlord. It has been further alleged that the certificate or letter given by the Postmaster, High Court Branch, Allahabad is totally manipulated one. The ground for taking additional evidence is baseless ground. The tenor of the counter affidavit is that the tenant has procured the letter from the Postmaster, which is otherwise not possible, by abusing his position to his advantage.
So far as legal position is concerned, both the counsel for the parties relied upon a Division Bench judgment of this Court in Babu Ram Vs. A.D.J., 1983 (1) ARC 15. In this very case, the question regarding the jurisdiction of a revisional Court to admit additional evidence while hearing the revision under section 25 of the Provincial Small Cause Courts Act was referred for decision to a larger Bench. This Court examined Order 41 Rule 27 C.P.C which deals with the power of Appellate Court to take additional evidence in appeal as also the other provisions as applicable to the Small Cause Courts Act and also the fact that the Order 41 Rule 27 C.P.C has not been made applicable to such proceedings. The learned senior counsel for the tenant laid emphasis on para 11 of the judgment which according to him permits the revisional court to take additional evidence on record. For the sake of convenience, the said paragraph is reproduced below:-
"After a review of the various provisions of the Provincial Small Cause Courts Act and the Code of Civil Procedure, we find that there is no prohibition contained in either of the two enactments expressly or impliedly providing for the bar of admitting additional evidence. What Order L Rule 1 (b) did by excluding Order XLI was only that this provision will not apply to revisions. But, the fact that Order XLI Rule 27 has been excluded does not lead to the conclusion that the Court cannot in exercise of its inherent power admit additional evidence when the ends of justice requires the same to be done."
A meaningful reading of the aforesaid judgment would show that notwithstanding the exclusion of provision of Order 41 Rule 27 C.P.C in exercise of revisional jurisdiction a revisional Court in exercise of its inherent powers may admit additional evidence when the ends of justice require the same to be done. Meaning thereby in appropriate cases depending on facts and circumstances of the case of a particular case the Court in exercise of its inherent power may permit a party to file additional evidence. In this regard, a reference was also made to a decision in the case of Smt. Gayatri Devi and others Vs. Additional District Judge, 1992 (1) ARC 148 wherein also it has been laid down that the revisional Court should look into the matter whether additional evidence is necessary for doing justice between the parties or not. Applying the above ratio to the facts of the present case it may be noted that the suit giving rise to the present revision remained pending for over a period of 17 years. In spite of notice of the suit written statement was not filed shortly thereafter as is expected in a normal course. It was filed after about 15 years. Not only this, the proceedings of the present suit was got stayed by filing a writ petition which has been dismissed by the High Court on 14.2.2006. The High Court not only dismissed the writ petition but directed the petitioner to pay Rs.75,000/- as cost/compensation/damages to the landlord for filing the writ petition for getting the proceedings of suit and release application stayed. It enhanced the rent/damages @ Rs.2,000/- per month inclusive of all taxes w.e.f. March, 2006 onwards. The High Court has come heavily on the petitioner tenant which is evident from the judgment, para 10 in particular. The applicant tenant has thrown all blame on his counsel that no legal advice was given to him to obtain such certificate from the postal department, which is nothing but a lame excuse. He belongs to a well educated and reputed family whose brother was a Judge of this Court and admittedly, his sister is Ex-mayor of Allahabad and father was Chief Minister of State of U.P.. In my considered view, justice will be defeated if such an application is allowed and additional evidence sought to be taken on record is permitted to be taken at this distance of time.
The allegation made in the counter affidavit that the information of record of 20 years old was sought for and has been given by the Postmaster, apparently under influence of the applicant, very readily on the same date, cannot be said to be totally unfounded.
Even otherwise also, in view of the findings returned above, the additional evidence sought to be tendered is not at all germane. The relevant portion of the money order Form which was supposed to be returned to the sender has not been filed and theory of rent through two money orders both dated 5.1.1990 has not been accepted, as discussed above.
The information sought through the letter dated 17th of May, 2010 from the postmaster was with regard to the name and address of the sender of the money order and of the addressee and the copy of money order Form. In reply, the information given is that the M.O. Under reply after transmission has been refused by the payee. But the officer concerned while giving the reply has not made reference to any official record. He has given the reply on the basis of the photocopies of the documents supplied by the author of the letter. The reply given by the sub-postmaster without making reference to his record is of no consequence and is worthless. No reliance can be placed thereupon. The said information does not appear to have been given in normal discharge of official duty, therefore, cannot be taken on record of the case. Order 41 Rule 27 contemplates three situations when an appellate court may permit a party to produce the additional evidence. Clauses (a) and (aa) of said provision are obviously not applicable as it is not the case of the applicant that such evidence was not within his knowledge or could not after exercise of due diligence be produced by him at the time of trial of the suit. Merely, a bald statement that no such legal advice was given to him cannot be accepted. The third situation as contemplated therein is when the appellate court requires any document to be produced or witness to be examined to enable it to pronounce the judgment or for any other substantial cause. The evidence sought to be produced is not required to enable the court to pronounce the judgment in revision nor there is any substantial cause for permission sought for. The application for permission to produce additional evidence is meritless and therefore it is rejected even on consideration of merits.
Satya Narain Saxena Vs. Ivth A.D.J., Aligarh, 1983 (2) ARC 343 relied upon by the tenant particularly paragraphs 11 and 12, is distinguishable on facts in as much as in that case the tenant sought to file certain tender receipts to show that he is not a defaulter. The genuineness of which was not doubted, which is not so here.
Reference was also made to a Full Bench decision of this Court in the case of Gokaran Singh Vs. 1st Addl. District Judge, Hardoi, 2000 (1) ARC 653 with regard to the burden of proof on the question of rate of rent and arrears. It has been laid down therein that the initial burden to prove that the defendant was in arrears at particular rate lies on the plaintiff. Once the said burden is discharged, the burden to prove that there was no arrears of rent shifts to the defendants and; where both the parties produce evidence oral and documentary, the question of burden of proof looses its importance. In that event, the Court shall be at liberty to peruse the evidence on record and to record the finding on the question of rate and arrears of rent.
Before parting with the case, it may be placed on record that the learned counsel for the landlord rightly reminded the Court that it has limited scope of interference in exercise of revisional jurisdiction. It can only look into the legality, validity and propriety of the order under revision and is not possessed with power to reappreciate the evidence. Number of decisions were referred by her but it is not necessary to burden this judgment as the limited scope in revisional jurisdiction is well known.
Viewed as above, I find that the rate of rent was Rs.1500/- per month and the defendant committed default and was in arrears of rent for more than four months on the date of notice terminating the tenancy. He failed to establish that the arrears of rent was offered validly through two money orders. He also failed to establish that the deposit under Section 30 (1) of the U.P. Act No.13 of 1972 is a valid deposit. The tenant having failed to make the deposit as required under Section 20(4) of the Act on the first date of hearing, is not entitled to get the benefit of the said Section. In the result, I find no merit in the revision and the revision is hereby dismissed with cost. The trial Court had granted six months time by its judgment dated 23rd of September, 2009 to vacate the disputed accommodation. Time up to 31st of December, 2010 to vacate the disputed premises is granted subject to the fulfilment of the following conditions:-
1.The tenant shall deposit the entire arrears of rent, damages @ Rs.2,000/- per month for the period up to December, 2010 within a period of one months with the trial Court.
2.The tenant shall file an undertaking on affidavit before the trial Court within the aforesaid period that he will hand over the peaceful vacant possession to the landlord on or before 31st of December, 2010 without creating any third party interest or causing any damage to the building.
If the tenant fails to vacate the disputed premises on or before 31st of December, 2010, he shall be liable to pay the damages for the use and occupation of the bungalow at the rate of Rs.20,000/- (Rs. Twenty Thousand only) per month till the date of actual vacation.
The revision is dismissed with cost.
(Prakash Krishna, J.) Order Date :- 28.9.2010 LBY