Allahabad High Court
Raghubir Singh Son Of Ram Bahadur Singh vs 3Rd Additional District Judge, Judge ... on 27 March, 2006
Equivalent citations: 2006(2)AWC1948
JUDGMENT S.U. Khan, J.
1. This is tenant's writ petition arising out of SCC suit No. 305 of 1984 filed by landlord-respondent No. 3 Bachhan Babu for eviction on the ground of default and recovery of arrears of rent. Plaintiff filed copy of sale deed dated 31.10.1981 through which Ashok Kumar son of tenant-petitioner had purchased an accommodation in the same City. None of the parties led any oral evidence before the trial court and formal proof of documents filed by each of the parties was waived by the other party. Trial court/JSCC, Aligarh held that tenant had deposited the entire requisite amount of rent, interest and cost of the suit on the first date of hearing however, he was not entitled to the benefit of Section 20(4) of U.P. Act No. 13 of 1972 by virtue of its proviso. According to the said proviso a tenant who or any member of whose family has acquired in a vacant state any residential building in the same city then he shall not be entitled to benefit of Section 20(4) of the Act. The tenant asserted that the accommodation purchased by his son was commercial in nature and not residential. Tenant further pleaded that the said accommodation was purchased for business purpose and was actually being used since its purchase for business purpose.
2. Prior to the suit giving rise to the instant writ petition another similar suit had been filed by the landlord against the tenant being SCC suit No. 43 of 1982. The said suit was dismissed on the ground that notice of termination of tenancy and demand of rent was not found served. However it appears that in the earlier suit it was held that defendant was not entitled to the benefit of Section 20(4) of the Act as his son had acquired a residential house.
3. The trial court decreed the instant suit for eviction and recovery of arrears of rent through judgment and decree dated 11.12.1985. Trial court held that even though tenant had fully complied with the provisions of Section 20(4) of the Act however, he was not entitled to the protection of the said sub-section as his son had acquired a residential house in the same city hence proviso to the said Sub-section was squarely attracted. Against the said judgment and decree tenant-petitioner filed SCC revision No. 4 of 1986. IIIrd A.D.J., Aligarh through judgment and order dated 20.8.1986 dismissed the revision hence this writ petition.
4. Heard learned Counsel for the parties.
5. Plea of invalidity of notice was also taken by the tenant before both the courts below however both the courts below held the notice to be valid. No argument in that regard was raised before me.
6. It was argued before me that finding that the proviso to Section 20(4) of the Act is attracted was recorded in the earlier suit (SCC suit No. 43 of 1982) hence according to learned Counsel for landlord-respondent the said finding operates as resjudicata and according to learned Counsel for tenant-petitioner as the said suit was dismissed hence he could not file revision against the said judgment and decree hence any finding recorded against tenant does not operate as resjudicata. The question of resjudicata has not been decided by any of the courts below hence it may be presumed that it was not pressed. Even otherwise the earlier finding will not operate as resjudicata as the earlier suit was dismissed hence tenant could not file revision. I have discussed this point in detail in Dhajja Ram v. A.D.J. 2005 (2) A.R.C.801.
7. In the sale deed dated 30.10.1981 copy of which has been annexed as Annexure -3 to the writ petition it is mentioned in the earlier part thereof that the property sold is one storied house. Thereafter sold property is repeatedly described as house. Thereafter it is mentioned that the said house has been agreed to be purchased by Ashok Yadav for business (Karobar Karkhana copper).
8. The courts below have held that as in the sale deed the property purchased by son of the tenant is described as house hence it will have to be taken a residential house. The trial court placing reliance upon an authority of this Court reported in R.P. Mallik v. A.D.M. 1982 U.P.R.C.C. 442 held that for the purposes of proviso to Section 20(4) of the Act what is relevant to decide is as to whether the purchased house is fit to be used as residence or not and the fact that it is being used for some other purpose is irrelevant. Unfortunately in the suit none of the parties led any evidence. The revisional court in para-11 of its judgment clearly held that the proviso to Section 20(4) of the Act is an exception therefore the burden lies upon the defendant to establish that the proviso is not attracted in the case and as he did not lead any evidence to show that the house purchased was not residential house hence proviso is attracted. In my opinion the courts below committed an error of law in placing the burden upon the defendant. In the first instance Section 20(4) of the Act applies to every tenant against whom suit has been filed on the ground of default. Proviso to the said Sub-section is an exception to the said sub-section. The burden to prove existence of facts to attract the exception lies upon the person who claims that exception is attracted. In the absence of any oral evidence by any of the parties the only course left open is to hold that plaintiff failed to discharge the burden to prove the facts necessary to attract the proviso to Section 20(4) of the Act.
9. Landlord has filed Supplementary affidavit stating therein that during pendency of writ petition son of the tenant has purchased several other houses. This has been denied by the tenant. However, firstly in the writ petition such point cannot be permitted to be raised for the first time which requires enquiry into facts. Secondly the position of acquisition of house for the purposes of proviso to Section 20(4) of the Act is to be seen as on the date of first hearing of the suit and not afterwards. If after the first date of hearing a house is acquired by the tenant or his family member then the same cannot dis-entitle retrospectively the tenant from taking the benefit of Section 20(4) of the Act.
10. Accordingly, writ petition is allowed. Judgments of the courts below, decree of the trial court and order of revisional court in respect of eviction are set aside.
11. I have held in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent. Property in dispute is a house situate in Aligarh. Rent of Rs. 40/- per month is virtually as well actually no rent. Accordingly, it is directed that with effect from April- 2006 onward tenant-petitioner shall pay rent to the landlord-respondent at the rate of Rs. 600/- per month inclusive of water tax etc. No further amount shall be payable by the tenant.