Allahabad High Court
Padma Agarwal And 2 Others vs Premvida Jaitley And 2 Others on 13 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 1302, 2019 (6) ALJ 83, (2019) 134 ALL LR 141, (2019) 1 ALL RENTCAS 804, (2019) 3 ALL WC 2562
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- S.C.C. REVISION No. - 386 of 2014 Revisionist :- Padma Agarwal And 2 Others Opposite Party :- Premvida Jaitley And 2 Others Counsel for Revisionist :- A.K. Gupta,Ashish Agrawal Counsel for Opposite Party :- Deo Dayal Hon'ble Manoj Kumar Gupta,J.
The sole question which falls for consideration in the instant revision is regarding compliance of Section 17 of the Provincial Small Cause Courts Act, 1887 (for short 'the Act') while seeking an order to set aside a decree passed exparte by Court of Small Causes. The court below has held that though the revisionists have deposited the arrears of rent and damages decreed by the trial court, but they have failed to deposit proportionate amount of water tax and sewer tax. It has refused to grant further time to make good the shortfall in view of the law laid down by this Court in Shahjahan Begum Vs. Smt. Nigar Kaushar, 2011 (2) ARC 813. The restoration application filed by the revisionists has been rejected for non-compliance of Section 17 of the Act.
The facts in brief necessary for disposal of the instant revision are as follows:-
The predecessor-in-interest of the plaintiff-respondents (for short 'the landlords') instituted SCC Suit No.74 of 2010 against the revisionists (hereinafter referred to as 'tenants') after determining the tenancy by notice dated 11.7.2010 for eviction and recovery of arrears of rent and mesne profits.
The service of summons on the tenants was held sufficient by refusal. On 19.11.2012, the Court of Small Causes decreed the suit. The operative part of the judgement is as follows:-
Þoknhx.k dk okn izfroknhx.k ds fo:) lO;; ,di{kh; :i ls vkKkIr fd;k tkrk gSA izfroknh.k dks funsZf'kr fd;k tkrk gS fd os fu.kZ; ikfjr fd, tkus dh frfFk ls nks ekg ds vUnj cdk;k fdjk;k :-2]16]000@& ¼nks yk[k lksyg gtkj :i;s½ e; vuqikfrd ty&dj o lhoj&dj rFkk [kslkjk :-900@& ¼ukS lkS :i;s½ dqy :-2]25]000@&¼nks yk[k iphl gtkj :i;s½ oknhx.k dks vnk dj nsos rFkk iz'uxr ,dkseksMs'ku Hkou la[;k ch 31@20 gky Hkou la[;k ch&31@20&,&3] yadk] 'kgj okjk.klh ds Hkw[k.M fLFkr nqdku vtuke cukjl cqd dkjiksjs'ku] ftldk iw.kZ fooj.k okni= ds vUr esa nf'kZr fd;k x;k gS] dks fjDr dj mldk okLrfod dCtk n[ky oknhx.k dks djk nsoasA izfroknhx.k }kjk iz'uxr mi;qZDr ,dkseksMs'ku ij fu.kZ; dh frfFk ls nks ekg ds vUnj okLrfod dCtk n[ky u nsus ij oknhx.k dks ;g vf/kdkj gksxk fd os fof/k vkSj izfdz;k dk vuqikyu djrs gq, U;k;ky; dh enn ls iz'uxr ,dkseksMs'ku ij dCtk n[ky izkIr dj ysosa vkSj cdk;k fdjk;k rFkk [kslkjk Hkh izfroknhx.k ls olwy ysaA ß On 16.2.2013, the tenants filed an application under Order 9 Rule 13 read with Section 151 CPC praying for an order to set aside the exparte decree. The specific case of the tenants in the restoration application was that they were not served with summons by usual mode or by registered post, nor they refused to receive the summons. The endorsement of refusal was obtained by the landlords in collusion with the process server and the postman. The landlords even made attempt to obtain possession without the tenant coming to know of the exparte decree. In Execution Case No.1 of 2013, the notice was sent in an envelop containing blank papers, without mentioning the name of the court, so that the tenants would remain under confusion about the nature of proceedings and the court passing the decree. However, on receipt of blank envelope, the tenants grew suspicious and got the matter enquired into after engaging a counsel, whereupon, it transpired that the landlords had succeeded in obtaining an exparte decree on 19.11.2012. The trial court, by an order dated 2.3.2013, granted stay of execution proceedings upon deposit of entire decreetal amount and payment of damages for use and occupation of the accommodation in dispute at the rate of Rs.900/- per month. By another order dated 11.11.2013, the trial court rejected the application of the tenants for accepting security in lieu of the decreetal amount. The tenants challenged both the orders by filing Writ-A No.69651 of 2013, which was disposed of by this Court by an order dated 18.12.2013 permitting the tenants to deposit entire decreetal amount alongwith up-to-date damages by 20th January, 2014. This court held that the trial court wrongly exercised its discretion in rejecting the application for furnishing security in lieu of the decreetal amount. The request of the tenants that they be permitted to deposit the entire decreetal amount was accepted by the court, as it was not opposed by the landlords. The relevant extract from the said judgement is reproduced below :-
"In view of foregoing discussions, I am of the opinion that the court below have failed to exercise the discretion vested in it.
However, considering the petitioner's submission which has not been opposed by the otherside that in case, by now the petitioners are permitted to deposit the entire decreetal amount along with up to date damages, they may now comply the order passed by the court below. It is provided that in case the petitioners deposit entire decreetal amount along with up to date damages by 20th January, 2014, the eviction of the petitioners from the accommodation in dispute shall remain stayed. In case, the petitioners fail to deposit the amount as directed by this Court, interim protection extended today shall stand automatically vacated. In the event of deposit of entire decreetal amount along with damages, the court below is directed to decide the petitioners' application for setting aside the exparte decree expeditiously without granting any unnecessary adjournments to the learned counsel for the parties."
The landlords, being aggrieved by the said direction, filed Special Leave to Appeal before the Supreme Court, but it was dismissed by an order dated 24.2.2014. The effect of the above orders was that in case the entire decreetal amount alongwith damages, as directed by the trial court by order dated 2.3.2013 is deposited by 20th January, 2014, the eviction of the tenants would remain stayed and the trial court would decide the application for setting aside the exparte decree expeditiously.
In compliance of the direction issued by the Writ Court dated 18.12.2013, the tenants claim to have deposited Rs.4,36,371/- on 20.1.2014. The breakup of the said amount, as disclosed by the tenants in a chart filed as Annexure-11, is as follows:-
(i) Decreetal amount upto May 2010 Rs.2,25,000/- (ii) y?kqokn [kpZ Rs.17,891/- (iii) June 2010 - 5/12/2012 30 months 5 days Rs.1,81,000/- @ 6000/- p.m. (iv) 6/12/2012 - 31/01/2014 Rs.12,480/- 13 months 26 days @ 900/- p.m. _______________ Total Rs.4,36,371/- _______________
The tenants thereafter continued to deposit damages at the rate of Rs.900/- per month for use and occupation in compliance of the conditional stay order granted in their favour by the trial court vide order dated 2.3.2013 and the order of the Writ Court dated 18.12.2013. On 29.1.2014, the landlords filed an objection against the deposits made by the tenants by tender dated 20.1.2014 alleging that there was a shortfall of Rs.78,000/-. They claimed that the tenants had not deposited any amount towards water tax and sewer tax. They also alleged that mesne profits from January 2013 to December 2013 and also for the month of January 2014 was not deposited at the rate of Rs.6000/- per month. They accordingly prayed for rejection of the application under Order 9 Rule 13 CPC for non compliance of the directions contained in the decree dated 19.11.2012 and the order of the Writ Court dated 18.12.2013.
The tenants filed a detailed objection to the said application claiming full compliance of the conditional stay order dated 2.3.2013 and the order of the Writ Court dated 18.12.2013. They claimed that they had deposited the entire decreetal amount alongwith up-to-date mesne profits till January 2014 and thus, there was no shortfall. They took a specific stand that under the decree, the mesne profits/damages had been decreed at the rate of Rs.900/- per month only. They disputed that any amount was payable as water tax and sewer tax under the decree passed by the trial court or the order of the Writ Court dated 18.12.2013. They also took a plea that they had been depositing rent since February 1999 under Section 30 (1) of U.P. Act No.13 of 1972 at the admitted rate of rent i.e. Rs.185/- per month and prayed that in case there is any shortfall, the amount deposited in the said proceedings be taken into consideration for reckoning compliance of Section 17 of the Act. It was followed by another application by the tenants dated 19.4.2014 stating that the landlords have been alleging non compliance of Section 17 of the Act on account of non deposit of alleged proportionate liability of water tax and sewer tax but there was no pleading in the plaint regarding the rate at which water tax and sewer tax were payable. They stated that in case the court calls for the said information from the landlords, they are ready and willing to make good the alleged shortfall. Accordingly, prayer was made for issuing a direction to the landlords to disclose the proportionate liability of taxes payable by the tenant. The trial court while disposing of the said application vide order dated 11.7.2011 accepted the factual position that there is complete absence of pleadings in this regard and until the same is disclosed by the landlords, it would not be possible to make any deposit under the said head. The landlords were accordingly directed to disclose the proportionate liability of the tenants towards water tax and sewer tax to enable the court to issue appropriate directions for deposit of the said amount. In compliance of the said direction, the landlords filed a chart claiming that the annual assessment of the building is Rs.42,218/-, the rate of water tax is 12.5.% and that of sewer tax is 4%. They claimed in para 5 of their application that since the tenants were occupying the entire ground floor, while the first floor was in possession of the landlords, therefore, the liability of the tenant would be half of Rs.42383.88 i.e. Rs.21,191.94.
The tenants again filed objection to the said application reiterating their stand that under the decree, they were not liable to pay water tax and sewer tax, over and above the decreetal amount. They further pleaded that the deposit made by them under Section 30 (1) of U.P. Act No.13 of 1972 amounting to Rs.43,845/- is available for adjustment in case there was any shortfall. They also deposited a sum of Rs.25,765/- with Jal Kal Vibhag, Nagar Nigam, Varanasi and claimed that thereby, the water tax and sewer tax had been deposited. The court below thereafter proceeded to adjudge whether the tenants had deposited the amount payable under the decree and as directed by the order of the Writ Court dated 18.12.2013. It held in favour of the tenants that the entire arrears of rent and damages, as decreed, had been deposited by the tenants. However, the tenants were found to have defaulted in depositing proportionate amount of their liability towards water tax and sewer tax. Consequently, it is held that they have failed to comply with Section 17 of the Act and accordingly, the restoration application has been rejected.
Learned counsel for the tenants made the following submissions:-
(a) Under the decree, only Rs.2,25,000/- was payable towards arrears of rent, proportionate water tax and sewer tax, and damages. The court has not awarded any amount towards pendente lite or future mesne profits, nor towards taxes, though prayed for in the plaint. The reliefs claimed in this regard shall be deemed to be rejected. The view of the court below that full amount of water tax and sewer tax had not been paid, is wholly illegal and based on misreading of the decree.
(b) It is not mandatory in every case to pass a decree for mesne profits. It is only discretionary as provided under Order 20 Rule 12 (1) (ba) CPC.
(c) Even a sum of Rs.1,81,000/- deposited by them as damages at the rate of Rs.6000/- per month from June 2002 to 5th December 2012 was not payable, as no decree in respect thereof was passed.
(d) The damages at the rate of Rs.900/- per month was deposited to ensure compliance of conditional stay order dated 2.3.2013 and order of the Writ Court dated 18.12.2013, although it was not payable under the decree.
(e) The tenants were occupying only a small part of the building, remaining being in possession of the landlords. Consequently, their proportionate liability should have been disclosed in the plaint and proved by evidence, followed by a specific decree, but which is completely lacking.
(f) Since rent was alleged to be Rs.6000/- per month, the building was outside the purview of U.P. Act No.13 of 1972, consequently, the trial court erred in applying Section 7 of the said Act in holding the tenants liable to water tax over and above the rent payable under the decree.
(g) Assuming that the tenants were under liability to pay proportionate amount of water tax and sewer tax, but in the absence of any amount being quantified in the judgement, it was not possible to deposit any amount under the said head nor could it be treated as non-compliance of Section 17 of the Act.
(h) The amount deposited under Section 30 amounting to Rs.43,845/- should have been adjusted while reckoning compliance of Section 17 as laid down in Shiv Shanker Singh Vs. IVth ADJ, 1997 ARC 491.
(i) The tenants had deposited Rs.4,36,371/- for taking benefit of Section 17 of the Act and in comparison to the said amount, alleged shortfall towards water tax and sewer tax was negligible and should have been ignored or permitted to be made good.
On the other hand, learned counsel for the landlords submitted that:
(a) the provisions of Section 17 of the Act are mandatory in nature and once it is found that the tenants had not deposited the water tax and sewer tax, they were rightly not permitted to make good the shortfall. In support of the said contention, he placed reliance on judgement of the Supreme Court in Kedar Nath Vs. Mohan Lal Kesarwani and others, 2002 (1) ARC 186 and Division Bench judgement of this Court in Raj Kumar Makhija and others Vs. M/s S.K. & Company and others, 2013 (1) ACJ 102;
(b) the tenants though offered to deposit water tax and sewer tax subject to the landlords furnishing information relating thereto, but later on did not make any deposit under the said head, thus committing a deliberate default;
(c) the deposit under Section 30 of the Act would not enure to the benefits of the tenants as rent being Rs.6000/- per month, the provisions of U.P. Act No.13 of 1972 were not applicable. In support of the said contention, he placed reliance upon M/s Tullu Motors Pvt. Ltd. Vs. Additional District Judge and others, 2014 (5) ADJ 417.
Section 17 of the Provincial Small Cause Courts Act provides as under:-
17. Application of the Code of Civil Procedure- (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realized in manner provided by Section 145 of the Code of Civil Procedure, 1908.
It is no more res integra that the provisions of Section 17 of the Act are mandatory in character and unless the entire amount stipulated under the proviso thereto is deposited in the manner prescribed, the application seeking setting aside of exparte decree passed by a Court of Small Causes would be liable to rejection.
In Kedar Nath Vs. Mohan Lal Kesarwani and others, 2002 (1) ARC 186, the Supreme Court after considering the objects and reasons behind establishing Small Cause Courts held that:-
A bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an exparte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court.
A learned Single Judge of this Court in Shahjahan Begum Vs. Smt. Nigar Kaushar, 2011 (2) ARC 813, placing reliance on Kedar Nath held that deposit of whole decreetal amount alongwith the application is mandatory and no subsequent application to rectify non compliance is maintainable. However, another learned Single Judge expressed disagreement with the said view and referred the following question to be decided by a Larger Bench:-
"Whether the proviso to Section 17 of the Provincial Small Causes Courts Act completely bars any rectification or removal of a bona fide error after the expiry of the period of limitation when substantial compliance by way of deposit of the decretal amount and furnishing security has been made within the period of limitation particularly when Section 5 of the Limitation Act, 1963 has been made applicable to Order IX Rule 13 of the Code of Civil Procedure?"
The issue was answered by a Division Bench in Raj Kumar Makhija and others Vs. M/s S.K. & Company and others, 2013 (1) ACJ 102, by holding that any subsequent application by a tenant for permission to make good the shortfall in deposit or security amount after the expiry of the period of limitation would be of no avail. In para 51 of the law report, the question has been answered thus:-
"Viewed as above, we answer the question referred to us in the following manner:
1. Any application filed by the tenant/defendant to made good the shortfall either in deposit or security after expiry of period of limitation is of no consequence. The application for setting aside of the exparte decree will be dismissed for non compliance of the said proviso to Section 17 of the Act.
2. Any amount deposited after the expiry of the period of limitation will not be taken into consideration for judging the compliance of the proviso to Section 17 of the Act. However, Court ignores the shortfall in deposit of a negligible amount on the principle of deminimis, as explained above.
3. There being no provision conferring power on the Court to condone the delay in making the deposit, provision of Section 5 of the Limitation Act will not be applicable to deposit contemplated under the proviso to Section 17 of the Act."
Having regard to the above settled position, this Court does not find any error in the view taken by the court below that no further time to make good the deficiency, if any, could be given. Thus, the fundamental issue left for decision is regarding correctness of the view taken by the court below that there was default in complying with Section 17 of the Act, as the tenants had not deposited water and sewer tax.
For answering the issue, a close look at the operative part of the decree would be necessary. The decree passed by the trial court could be split into three parts as under:
(i) The defendants were directed to pay balance rent of Rs.2,16,000/- alongwith proportionate water tax and sever tax and damages of Rs.900/-, total Rs.2,25,000/- within two months from the date of judgement.
(ii) The tenants were directed to vacate the accommodation in their tenancy described at the foot of the plaint and hand over its actual possession to the landlords within two months.
(iii) If the tenants fail to deliver vacant possession of the accommodation within two months of the judgement, the landlords were entitled to take possession of the tenanted accommodation through the process of law and also recover remaining rent and damages.
The reliefs claimed in the suit were as under:-
¼d½ ;g fd foi{khx.k ds fo:) csn[kyh dh vKkfIr ikfjr djrs gq, foi{khx.k dks iz'uxr ,dkseksMs'ku ls csn[ky djds ml ij oknhx.k dks okdbZ o drbZ rkSj ls dkfct djk fn;k tkosA cr;wu eq0 7200@&:0 ¼[k½ ;g fd foi{khx.k ds fo:) cdk;k fdjk;k ekg twu lu 2007 yxk;r ekg ebZ lu 2010 ;kfu 36 ekg dk fdjk;k eq0 6]000@&:0 ekgokj dh nj ls dqy ewY; eq0 2]16]000@&:0 e; vuqikfrd ty dj o lhoj dj olwyh dh vkKkfIr ikfjr djrs gq, oknhx.k dks foi{khx.k ls fnyk;s tkus ds ckor vkns'k lkfnj Qjek;k tkosA cr;wu eq0 216000@&:0 ¼x½ ;g fd foi{khx.k ds fo:) eq0 6]000@&:0 ekgokj dh nj ls [kslkjk ¼esUl izkfQV½ dh olwyh nkSjku eqdnek o vkbUnk foi{khx.k ls oknhx.k dks fnyk;k tkos ftl ij U;k; 'kqYd ojoDr btjk vnk fd;k tkosxkA ¼?k½ ;g fd foi{khx.k ds fo:) eq0 6]000@&:0 ekgokj dh nj ls [kslkjk fnukad 11&7&2010 bZ0 dk eq0900@& :0 ikfjr djrs gq, oknhx.k dks foi{khx.k ls fnyk;s tkus ds ckor vkns'k lkfnj Qjek;k tkos A cr;wu eq0 900@&:0 ¼M-½ ;g fd dqy [kPkkZ eqdnek cgd oknhx.k f[kykQ foi{khx.k vk;r Qjek;k tkosA ¼p½ ;g fd mijksDr vuqrks"k ds vykok oknhx.k ftl ftl vuqrks"k dh vf/kdkfj.kh; cunhd jk; vnkyr djkj ik;h tkos mldh Hkh fMdzh cgd oknhx.k f[kykQ foi{khx.k ikfjr fd;k tkosA Under clause ¼[k½, the plaintiffs prayed for a decree of arrears of rent from June 2007 to May 2010 i.e. for 36 months amounting to Rs.2,16,000/- at the rate of Rs.6000/- per month and proportionate amount of water tax and sewer tax. Under clause ¼x½, the plaintiffs prayed for a decree of pendentlite and future mesne profits at the rate of Rs.6000/- per month. Under clause ¼?k½, the plaintiffs prayed for a decree of mesne profits at the rate of Rs.6000/- per month for 11.7.2010 amounting to Rs.900/-
Relief clause ¼?k½, as framed, does not convey any sense. It is inexplicable how a sum of Rs.900/- would work out as damage for 11.7.2010. Learned counsel for the parties were also at loss when asked during course of hearing to explain the same. The trial court, without applying its mind to the above facts, granted damages to the tune of Rs.900/-, apart from decree of arrears of rent of Rs.2,16,000/-. The sum total of the above two figures comes to Rs.2,16,900/-, but curiously enough the amount collectively decreed by the trial court under the aforesaid head is Rs.2,25,000/-. This is possible only if the damage awarded by the trial court i.e. Rs.900/- is read as Rs.9000/-. The court below, without applying its mind to the said aspect, granted damages as prayed in the relief clause. The plaintiffs also did not care to seek correction in the prayer clause nor in the operative part of the decree. Therefore, for reckoning compliance of Section 17, one has to go by what is stated in black and white in the operative part of the decree. The decree specifically states that Rs.2,25,000/- is sum total of arrears of rent besides water tax and sewer tax (as claimed under relief ¼[k½) and damages (as claimed under relief ¼?k½). It did not decree any sum towards water tax and sewer tax over and above Rs.2,25,000/-.
The aforesaid interpretation is also consistent with what the trial court itself understood by the operative part of the decree when under order dated 2.3.2013, while granting stay, it required the tenants to deposit, apart from the decreetal amounts, future mesne profit at the rate of Rs.900/- per month. Evidently, the direction to deposit future mesne profit at the rate of Rs.900/- per month was borrowed from the operative part of the decree passed by the trial court awarding mesne profit at the rate of Rs.900/-. Once again when the matter travelled to this Court by way of Writ-A No.69651 of 2013, it was again noted by this Court that the suit had been decreed for damages at the rate of Rs.900/- per month, apart from other reliefs. Even at that stage, the plaintiffs did not apply their mind regarding mistake in the relief clause nor sought any correction therein.
There is no dispute that the tenants had deposited Rs.4,36,371/- on 21.01.2014, i.e., within the time stipulated by this Court under its order dated 18.12.2013, which stands upheld by the Supreme Court. It included Rs.2,25,000/- towards arrears of rent, proportionate amount of house tax, water tax and damages. According to the court below, the said amount did not cover the proportionate liability towards water tax and sewer tax, consequently, the benefit of Section 17 of the Act was denied. It is noteworthy that while so holding, court below did not examine the plea of the tenant that Rs.2,25,000/- included taxes also and that no amount over and above the same was payable under the decree towards municipal taxes. It had rather taken shelter behind Section 7 of U.P. Act No.13 of 1972 (hereinafter referred to as 'the Rent Control Act') in holding the tenants liable to deposit proportionate amount of water tax apart from rent. It has also observed that under Section 173 of the Nagar Mahapalika Adhiniyam, 1959, power to levy property tax, water tax and sewer tax has been conferred. It has also referred to Section 66 of the U.P. Water Supply and Sewerage Act, 1975 which empowers Jal Sansthan to provide water supply connection and realise charges for water consumption. It has held that money deposited by the tenants with Jal Sansthan vide paper no.146-Ga was towards water charges and not water tax. It has also observed that the tenants themselves applied to the court for issuing a direction to the landlords to provide details of exact amount required to be deposited by them as water and sewer tax, but after the landlords provided the said figure, the same has not been deposited, thus compliance of Section 17 has not been made.
I, therefore, proceed to examine whether by virtue of Section 7 of the Act, the tenants could be held liable to deposit house tax for ensuring compliance of Section 17 of the Act. Section 7 of the Rent Control Act reads thus :-
"7. Liability to pay taxes. - Subject to any contract in writing to the contrary, but notwithstanding anything contained in section 179 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 or in section 149 or in any rule made or notification issued under section 338 of the United Provinces Municipalities Act, 1916 or in section 14 (1) (e) of the United Provinces Town Areas Act, 1914, the tenant shall be liable to pay to the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof, if any, payable in respect of the building or part under his tenancy, namely :-
(a) the water tax;
(b) twenty-five per cent of every such enhancement in house tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the increase in the assessment of the building as a result of the enhancement of rent under the provisions of section 5;
Provided that nothing in tins section shall apply in relation to a tenant the rate of rent payable by whom tor the time being (excluding any enhancement or rent under provisions of section 5) does not exceed twenty-five rupees per month."
Section 7 of the Rent Control Act is applicable only to a building covered under the said Act. According to the exparte decree, the rent of the tenanted premises was Rs.6000/- per month. It was thus an amount exceeding Rs.2000/- per month and consequently in view of clause (g) of sub-section (1) of Section 2, the building was exempt from the provisions of the Rent Control Act.
The other aspect is that even under Section 7, only water tax is payable in addition to and as part of the rent but not sewer tax. Moreover, it is only proportionate part of water tax payable in respect of part of building under tenancy, which the tenant is liable to pay. Where the building is occupied by more than one tenant or some part by the landlord, the proportionate liability of water tax payable for such building has to be clearly disclosed in the plaint. In case the same is disputed by the tenant, the same has to be determined by the court, before the claim in respect therefor could be decreed. If without determining the proportionate liability, the claim is decreed, it being not possible to quantify the said amount, the judgement debtor cannot be expected to deposit any amount on the said count in compliance of Proviso to Section 17, nor could the application filed by the tenant seeking setting aside of the exparte decree, be dismissed for such reason.
At this juncture, it would be advantageous to take note of Order 20 Rule 12 (1) CPC which reads thus :-
"12. Decree for possession and mesne profits.-- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree -
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent:
(ba) for the mesne profits or directing an inquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until -
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgement-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
A court, while decreeing a suit for eviction or mesne profits, is competent to pass a decree for rent or for mesne profits without itself determining the same. In such an event, the decree passed would be a preliminary decree within the meaning of Section 2(2) CPC. It has to be followed by an enquiry to determine rent or mesne profits actually payable. During course of such enquiry, the parties have right to lead evidence and the court is under obligation to decide the issues arising out of the matter. It cannot simply call for a figure from the plaintiff and make the decree holder liable for such amount by taking such figure as gospel truth. The said determination, as noted above, has to be made in course of preparation of final decree and not while deciding an application to set aside the exparte decree.
In the instant case, in view of ambiguity in the operative part of the exparte judgement, even if it is assumed that a decree for payment of proportionate amount of water tax and sewer tax in additional to Rs.2,25,000/- was also passed, the procedure followed by the trial court in determining the said amount was wholly illegal and unheard of. The court below, upon an application filed by the tenant showing willingness to deposit municipal taxes, required the plaintiff to disclose the said amount. The tenant, filed specific objections with regard to the claim made by the landlord in that regard. The court below, without deciding the dispute and examining whether any sum is payable over and above Rs.2,25,000/- and what would be the proportionate liability of the tenant, proceeded to hold the tenant guilty of not depositing water tax and sewer tax. The amount due from the person seeking an order to set aside exparte decree under the Proviso to Section 17(1) would be an amount which stand quantified, or is capable of quantification in terms of the decree. If the amount is yet required to be determined by holding an enquiry under Order 20 Rule 12 CPC, the tenant cannot be excepted to deposit such amount nor the application to set aside the exparte decree be dismissed as not maintainable on said ground. For the same reason, there cannot be any estopple merely because the tenants prayed to the court to require the landlords to furnish details of the amount payable in this regard.
For the foregoing reasons, the view taken by the court below that the tenants have failed to make compliance of Section 17 of the Act cannot be accepted. Having arrived at the above conclusion, the other alternative submissions advanced by learned counsel for the tenant are not being considered. However, before parting, the Court would like to bring on record a very interesting feature of the case. The instant suit was filed with the allegation that rent from December 1989 was paid at the rate of Rs.5000/- per month in cash. The defendants stopped paying rent from January 1990. In June 2007, it was agreed between the parties that rent would be payable at the rate of Rs.6000/- per month from June 2007 and that arrears of rent for the period January 1990 to May 2007 would be cleared off in installments. It is noteworthy that the previous landlady of the premises Smt. Laxmi Devi, deceased mother of respondent no.1 filed an application under Section 21(1)(a) of the Rent Control Act in the year 1987 against Padma Agarwal, mother of the revisionists for release of the tenanted premises and wherein she admitted the rate of rent as Rs.185/-. Since 1990, rent at the said rate was being deposited under Section 30 of the Rent Control Act in Misc. Case No.230 of 1990 without any objection being filed against the same by the landlords. The specific case of the tenants was that rent was never Rs.5000/- per month, nor there was any agreement, oral or written, to enhance the rent to Rs.6000/-. It was also the specific case of the revisionists in the restoration application that the summons in the suit were never served upon them and the plaintiff had succeeded in procuring an exparte decree by manipulating fraudulent service of summons. Another fact which is noteworthy is that during pendency of the suit, the original plaintiff-respondent no.1, sold the property to respondents 2 and 3 and they got themselves impleaded as co-plaintiffs. The original plaintiff did not enter the witness box. Only respondent no.2 was examined as PW-1. The plaintiffs had not brought on record any documentary evidence to prove that rent was ever Rs.5000/- per month or any agreement took place to enhance the rent to Rs.6000/- per month. But the court below mechanically proceeded to decree the suit by observing that the evidence filed by the plaintiffs had remained unrebutted.
The defendant-tenants despite the above, chose to deposit rent at the rate decreed by the trial court, i.e. Rs.6000/- per month to avail the benefit of Section 17 of the Act. The object of Section 17 of the Act is to dissuade a litigant from abusing the process of court by first permitting the suit to be decreed exparte and thereafter apply for its setting aside without depositing the decreetal amount. The object is not to give such interpretation to the decree as would become impossible for the tenant to comply with the same and then refuse to hear the restoration application on merits for alleged non-compliance of Section 17.
In consequence and as a result of above discussion, the impugned order dated 27.8.2014 is hereby set aside. The revision is allowed. The trial court is directed to decide the restoration application on merits in accordance with law, expeditiously, preferably within a period of three months from the date of production of a certified copy of this order. In case the restoration application is allowed, the trial court shall proceed to decide the suit without being influenced by any observation made herein.
Order Date :- 13 Feb. 2019 SL (Manoj Kumar Gupta, J.)