Allahabad High Court
Devendra Kumar Sharma vs Ajit Kumar Jain on 7 April, 2015
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Court No.59 Civil Revision No. 458 of 2013 Devendra Kumar Sharma v. Ajit Kumar Jain ..
Hon'ble Pradeep Kumar Singh Baghel, J This Revision under section 25 of The Provincial Small Cause Courts Act, 1887, has been preferred by the tenant against the judgment and order dated passed by the Judge, Small Causes/Additional District Judge, court no.1, Bijnor, whereby he has decreed the suit of the landlord -respondent for recovery of the rent and eviction.
The landlord- respondent instituted a suit for eviction and for a recovery of Rs.6,100/- as arrears of rent and damages for the use and occupation of a house. The suit was registered as SCC No. 80 of 1996. It was pleaded by the landlord that he is owner of the residential accommodation situate in Mohalla Nai Basti, Bijnor and revisionist/tenant is residing in demised premises on rent of Rs. 600/- per month including taxes. He had executed a power of attorney on 2.7.1996 in favour of his father. The grievance of the landlord was that the defendant did not pay the rent of the premises since November, 1995. By the amendment of the plaint a further plea was taken that the revisionist/tenant has acquired a residential house in the name of his son and has got the possession of the house. The said accommodation comprises of five rooms on the ground floor and one room on the first floor. It was further stated that the revisionist/tenant is living in the newly acquired house along with his son and he has locked the premises in question where he was earlier living, therefore he is not entitled for any benefit under section 20 (4) of the Act No. 13 of 19721.
The landlord sent a registered notice on 26.6.1996 determining the tenancy of the tenant. The tenant filed a written statement and denied the allegations of the plaint. It was stated in the written statement that the tenant has deposited unconditionally the entire amount of rent and damages with interest and the cost of the suit in terms of Sub Section 4 of Section 20 of the aforesaid Act before the first date of hearing. It was further stated that in the beginning the rent was settled @ 73/- per month inclusive all taxes but subsequently the tenant had to enhance rent from time to time under pressure from Rs.73/- per month to Rs.265/- 300 per month in the year 1990, Rs.400/- in the year 1994 per month and in the year 1996, Rs.600/- per month inclusive all taxes. It was further stated that the notice sent by landlord is bad and invalid.
The defendant has filed a additional Written Statement (Ex. Ga 137) wherein he has pleaded that his son is living separately.
The court below has struck off the defence of the tenant vide order dated 29.5.1998. Against the said order the tenant preferred a Civil Revision No. 323 of 1998 which has been dismissed. There is nothing on the record that order dated 29.5.1998 has been recalled or set aside. The court below has decreed the suit on the ground that that revisionist/tenant has failed to deposit the entire arrears of rent in terms of Section 20 (4) of the Act as there is shortage of Rs.186.25p. The court has recorded a finding that the revisionist/tenant has acquired a residential house in the same city therefore he is not entitled for the benefit of Section 20 (4) in view of the proviso of Section 20(4) of the Act It has also found that the notice sent by the landlord terminating the tenancy is a valid notice.
Learned counsel for the revisionist submitted that 13.11.1996 was the first date of hearing and on the said date the tenant/revisionist had appeared and deposited a sum of Rs. 10,500/- as arrears of rent, cost of suit and interest etc. In compliance of the provisions contained in U.P,. Act No.13 of 1972; no valid notice terminating the tenancy as required under section 20 (1) of the Act 13 of 1972 has been issued; there was no shortage of amount and the petitioner deposited entire arrears of rent and even if there was any minor deficiency in the deposit made on the date of first hearing the benefit of provisions contained in section 20(4) of the Act will be attracted to the tenant. He has placed reliance on the judgment of this Court in Writ Petition No. 24393 of 2003 (Murari Lal v. Girwar and others) decided on 12.9.2012 and Mam Chand Pal v. Smt. Shanti Agarwal, 2002 (1) ARC 370 (SC).
It was urged that the proviso of Section 20 (4) of the Act would not be applicable by mere acquisition of residential accommodation after the date of first hearing. He has placed reliance on a judgment of Raghubir Singh v. III ADJ, Aligarh and others, reported 2006 (9) ADJ 26.
Lastly it was urged that the first date of hearing was 13.11.1996. On that date the rent was due from November, 1995 to 13.11.1996. Thus until October 30th, the rent was due for 13 months. According to him arrear was Rs.7200/-. The tenant had deposited Rs.7800/- therefore Rs.600/- extra amount was deposited by tenant that could have been adjusted against cost of the suit.
Learned counsel for the landlord submitted that the notice terminating the tenancy was issued and served upon the tenant. The said fact has not been denied by the tenant in the pleadings. The first date of hearing was 12.2.1997 the date on which Written Statement was filed on that date the arrears of rent was of sixteen months and not thirteen months. Therefore, the shortfall was of Rs. 1800/- in the rent under section 20(2) read with order 15 Rule 5. Thus the requirement for the benefit under section 20(4) of the Act was not met. It is not pleaded that shortfall was due to bonafide mistake hence the tenant is not entitled to the benefit under section 20 (4) of the Act. He further submitted that proviso to section 20 (4) of the Act does not specify that acquisition in vacant state of residential building should be prior to first date of hearing in the suit.
He pointed out that admittedly rent was deposited on 13.11.1996 , that is after 7 days of the month, therefore the tenant was liable to pay the rent of November also, for the said reasons the deposit made by the tenant was short by one month's rent.
He has placed reliance on a judgment of Sri Ram Agarwal v. Smt. Sheela Devi , (2005 (1) ARC 205; Chandra Bhan Singh v. Sixth A.D.J., & Others, 2011 (2) ARC 289; Islamiya and Another v. Dulha Miyan, 2012 (3) ARC 74; Premwati Devi (Smt.) v. Vijay Kumar Solanki, 2012(3) ARC 49 and Nand Lal @ Nand Ram v. Raja Ram, 2010 (1) ARC 127.
I have heard learned counsel for the parties and perused the record.
The landlord claims that he had sent notice during the tenancy on 26.6.1996. It has not been seriously disputed by the tenant that the said notice was not served upon him. The tenant/revisionist in his additional pleas has taken the plea in the following words:- "That the notice referred to in the plaint is bad and invalid." From the said pleading it is evident that the tenant has not denied that the notice dated 26.6.1996 was not served upon him. Admittedly the revisionist did not pay the arrears of rent within thirty days from the receipt of the notice. A copy of the said notice was on the record as Ex.Ga-7. Postal receipt of the said notice which was sent under the Registered Cover is also filed by the landlord marked as Ga-8. As mentioned above the defence of the tenant/revisionist was truck off by the court. The tenant had filed an additional written statement also. A perusal of the written statement and the additional statement makes it clear that no statement has been made that the notice was not served upon him. In my view the trial court has rightly recorded the finding that notice was valid and it has been duly served upon the tenant/revisionist and do not suffer from any illegality.
Insofar the statement of the learned counsel for the tenant/revisionist that the tenant has deposited the entire arrears of rent i.e. Rs.10,500/- on first date of hearing on 13.11.1996, the landlord has submitted that since the tenant had filed his written statement on 12.2.1997 therefore treating it as the first date of hearing he was required to deposit Rs. 12,633.75p. The details of amount mentioned in paragraph 7 of the counter is extracted hereunder below:-
Particulars Amount Rent and damage for Nov to Feb 1997 (16 month @ 600 per month) 9600.00 Interest @ 9% 648 Court fees 1635 Vakalatnama 1.5 Talwana 3.75 Application 1.5 Affidavit 5 Summon notice 5 Registry 8 Paper of Forms 16 Counsel fees 445 Clerk fees 50 Power of Attorney 125 In the Rejoinder Affidavit the tenant has denied the break-up of the amount deposited under section 20 (4) of the Act. The plea taken by the tenant in paragraph 8 reads as under:-
"The break-up of the amount deposited under section 20 (4) of the Act are Act are also incorrect. The rent due on the date of first hearing was for 11 months (600.00 x 11) i.e. Rs.6600/- and further the amount of clerk fees cannot fetch to Rs.45/- in view of provisions contained in Rule 598 of General Rule Civil. The respondent themselves claiming the counsel fees to the tune of Rs.445/- therefore the clerk fees cannot fetch to Rs.45/- The amount claimed toward the execution of power of attorney cannot be included in the deposit of statutory amount defined under section 20(4) of U.P. Act No. 13 of 1972. The deposit made by the revisionist was absolutely adequate to satisfy the provisions contained in Section 20 (4) of the Act."
According to the tenant/revisionist the first date of hearing of the suit under section 20 (4) of the Act was 13.11.1996 and not on the date when the tenant has filed his written statement viz 12.21997. I find the stand taken by the landlord that the first date of hearing was on 12.2.1997 i.e. on the date of filing of the WS is incorrect, therefore his demand for arrears of rent upto February, 1997 is not correct.
The trial court has rightly treated the first date of hearing as 13.11.1996. However, even if it is taken that the first date of hearing was 13.11.1996 the deposit made by the tenant was short by Rs.186.25p. In this case the valuation of the suit was 13,200/- thus in terms of the General Rule (Civil) 1957 the finding of the trial court is that the counsel fee will be Rs.455/- and 10% Advocate Clerk would come to Rs.90/-. Similarly the trial court finding on expenses and stamp on the power of attorney has not been challenged by the learned counsel for the tenant/revisionist during the submission.
He has not assailed the finding recorded by the trial court that there was shortage of Rs. 186.25p.
This Court in Smt. Sita Goel and others v.Fifth Addl. District Judge, Meerut and others, 1982 (8) ALR 57, has considered a case where the amount deposited fell short by about Rs.16/-. The Court held that the tenant was not entitled for benefit of Section 20 (4). In the present case also it is not the case of the tenant that there was accidentally omission or clerical error in making the deposit of the entire amount contemplated by Section 20 (4) of the Act. The Court has found that if the amount deposited by the tenant fell short of requirement of Section 20 (4) of the Act he could not be relieved of the liability of eviction. The relevant observation of the Curt reads as under :-
"It was urged by counsel for the petitioners that the Judge, Small Causes rightly gave the benefit of Section 20 (4) of the Act to the petitioners on the ground that they had made substantial compliance of the said sub-section and that since in taking this view the Judge, Small Causes, had relied on a decision of this Court in D.C.Gupta v. K.N.Seth (I) respondent no.1 has committed a manifest error of law in setting aside the order of the Judge, Small Causes. I, however, do not find any substance in this submission. Respondent no.1 in passing the impugned order has taken into consideration D.C.Gupta's case(supra) and has held, and in my opinion rightly, that the said case was distinguishable on the facts of the instant case. In D.C.Gupta's case the provision which came up for consideration was Section 39 but due to some accidental omission or clerical error the amount fell short of the required amount the trivial error should not be visited with denying the relief to him against eviction conferred upon him by the Act. After having considered the facts of the instant case respondent no.1 has held that even if the principles laid down in D.C.Gupta's case were applied to a case under section 20 (4) also the petitioners were not entitled to any benefit inasmuch as in the instant case there was no evidence at all to show that there was any accidental omission or clerical error in not making the deposit of the entire amount contemplated by Section 20 (4) of the Act."
In so far submission of the landlord that admittedly the tenant has purchased a vacant house and has shifted in that house along with his son. The trial court has recorded a finding of fact that the tenant is not entitled for the benefit of proviso under section 20 (4) of the Act in view of the admitted position that he has purchased a residential house in the same City in name of his son. The plea taken by the tenant/revisionist that his son is living separately has not been accepted by the trial court in view of the definition of the family provided under section 3 (g) of the Act. The landlord has adduced the evidence that the tenant has locked the disputed premises and is living with his son for the last several years. The plea of the landlord that he is not living with his son has been rightly disbelieved by the trial court.
Moreover, from the explanation of Section 20 (4) of the Act it is evident that intention of the Legislature is that in case a tenant acquires a residential building in the same City he would not be entitled to get benefit of Section 20 (4) of the Act. Relevant it would be to mention that the similar intention of the Legislature reflects in Section 16 and 21 when a sitting tenant acquires a building in the same City. In my view it is immaterial where the tenant has acquired the building before the first date of hearing or subsequently will not make any difference as the said issue can be considered at the time of hearing. In the case of Vasudeo Chaturvedi v. VII Additional District Judge, Varanasi and Another, 1988 ALL. L.J. 1359, this Court has observed as under :-
"From a reading of sub-section (4) of S.20 of the Act, it is clear that it is open to the Court to relieve a tenant against his liability for evicting., if he has complied with the condition laid down in the above sub-section in lieu of passing of decree for eviction. From this, it is clear that what the Legislature intended was that at the time of final hearing if the Court is passing a decree for ejectment, it will relieve the tenant of that decree if he complies with the condition laid down aforesaid. In the circumstances, this can only be possible at the time of the final hearing of a suit. This cannot be done at a preliminary stage. The conclusion whether benefit under aforesaid sub-section would be available to the tenant, is dependent upon the facts and the appropriate stage for deciding this question is at the time of final hearing."
(Emphasis supplied) In the case of Shri Jia Uddin and another v. Iind Addl. District Judge, Aligarh and others , ARC, 1982 200, the submission was made that the two sons of the landl;ord were not normally residing with him, therefore the Proviso Section 20 (4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 would not be attracted. This Court repelled the said submissions in the following terms :-
"Having heard learned counsel for the parties, I find no merit in the above contention. The language of the proviso to Section 20(4) read with the definition of "family" as given in Section 3(g) of the aforesaid Act is express and unambiguous. Unlike the language used in the first Explanation to Section 21 (1) the words "who has been normally residing with or is wholly dependent on him" have not been used in the proviso to Section 20(4). The legislative intent is, therefore, clear and, I see no reason for reading into the proviso to Section 20(4) the same words as was sought to be done by the learned counsel for the petitioners on the proviso. I am unable to accept the further contention of the learned counsel that the qualification in sub-clause (iii) of clause (g) of Section 3 "as may be normally residing with him or her"ought to be read in sub-clause (ii) of clause (g) of Section 3 as well. Wherever the Legislature has considered it necessary and appropriate to limit the benefit to those sons only who may have been normally residing with the tenants, it has expressly said so as in the case of the first Explanation to Section 21 (I).The view taken by the court below, therefore, that the proviso to Section 20 (4) is attracted in the facts of the present case is correct and calls for no interference."
The said case was followed by this Court in the case of Mohd. Ilyas Ahmad v. XIIIth Additional District Judge, Allahabad and others, 2002 (2) Allahabad Rent Cases 558. The Court referred the definition of the family in 3 (g) and even if the son is not normally residing with the tenant and is not wholly dependent on the father, he will be treated as a member of the family. Paragraph 6 and 9 of the said judgment is extracted hereunder below :-
"6. In the light of above provisions, for the purpose of interpreting the words "member of the tenant's family" as used in the proviso to Section 20 (4) the definition in Section 3(g) would be used and by such use the son of the petitioner would be a member of the family of the petitioner, though the son may not be wholly dependent or normally residing with the tenant.
9. On the other hand learned counsel for the respondent has relied upon a decision of a learned Single Judge of this Court which directly covers the issue. The said decision is Sri Kiya Uddin v. IInd ADJ reported in 1982 ARC 200. In the said decision it has been held that the requirement of being dependent on the tenant or normally residing with the tenant is not necessary in Section 20(4) proviso."
Learned Counsel for the tenant/revisionist has placed reliance on the judgment of this Court in Raghuvir Singh v. IIIrd Addl. District Judge, Aligarh and Others, 2006(9) ADJ 26. In the said case the tenant had deposited the entire requisite amount of the rent, interest and cost of the suit on the first date of hearing but in that case the tenant's son had purchased an accommodation which was commercial in nature and not the residential. The tenant had pleaded that the accommodation was purchased for the business purposes and was actually being used for business.
Thus the fact of the said case is not applicable in the present case. It is admitted case by the landlord that the property purchased by him or by his son is residential and it is being used as residential accommodation. The only plea he has taken that his son is living separately that has been disbelieved by the court below on the valid ground and there is no reason to interfere in the said finding of fact as the tenant/revisionist was struck off. Moreover he has not filed any evidence to establish that his son was living separately.
Apart from the legal position that the son is the member of the family under section 3(g) of the Act.
In view of the above, I am of the view that the finding of fact recorded by the court below about the default made by the tenant/revisionist in depositing the arrears of rent, interest and cost of the suit as well as the fact that the tenant has acquired a residential building in the same City do not call for any interference under section 25 of the Act.
The revision lacks merit and it is accordingly dismissed.
The tenant-revisionist is granted three months time to vacate the premises subject to the following conditions:-
(i) the tenant shall submit an undertaking in the court below that he will handover the vacant and peaceful possession to the landlord on or before 15th July, 2015.
(ii) he will continue to pay the rent on each succeeding month till vacation of the accommodation on 7th day of each month.
(iii) he will not create any third party interest in the disputed premises.
There shall be no order as to costs.
Dated: 7.4.2015 ssm