Sri Hridya Narain Shukla v. Ram Pyari — 1969 DIGILAW 212 (ALL)

JUDGMENT J.S. Trivedi, J. - This defendant's second appeal and plaintiff's cross-objection is directed against the judgment and decree of the Third Additional Civil Judge Kanpur. 2. Lala Anant Ram and Lala Kundan Lal were the owners of plot No. 118/489, Kaushalpuri, Kanpur. They leased out the plot in suit which is a portion of the Ahata to defendant respondent, Sardar Saran Singh on a monthly rent of Rs. 30. The plaintiffs in 1961, purchased the Ahata in suit. On 14th November, 1961 the defendant respondent transferred his flour mill that he had installed over the plot, together with his tenancy rights in favour of the defendant appellant Hriday Narain Shukla. An intimation of the transfer of the flour mill and tenancy rights was given to the plaintiff respondents. The plaintiff respondents, however, did not accept the defendant appellant as their tenant and served a notice determining the tenancy on the ground that the land in suit was not "accommodation" within the meaning of Section 2(a) of the U.P. Control of Rent and Eviction Act (hereinafter referred to as the Act). It was also stated that in case the land in suit was an accommodation then also the defendant appellant was liable to ejectment on the ground of default, i.e. the tenant failed to pay the arrears within one month from the date of the notice. The suit out of which this appeal arises was thereafter brought for recovery of Rs. 1,380/- as arrears of rent and for the ejectment of the defendants from the plot in suit demolition of constructions. Damages, pendente lite and future, at the rate of Rs. 50 per month were also claimed. The suit was contested by the defendants who contended that the land in suit was accommodation' within the meaning of Section 2(a) of the Act. The claim of arrears was also denied. The trial Court found that the tenant was, in arrears of rent from 1.10.1961 and that the lease was in respect of an open piece of land. It also found that the structures on the land in suit were constructed by defendant respondent Saran Singh and did not belong to the plaintiff landlord. The lease was therefore held not to be of an accommodation as defined in the Act and the determination of the tenancy by a simple notice was found good. It also found that the structures on the land in suit were constructed by defendant respondent Saran Singh and did not belong to the plaintiff landlord. The lease was therefore held not to be of an accommodation as defined in the Act and the determination of the tenancy by a simple notice was found good. The suit was accordingly decreed for ejectment and arrears of rent, pendente lite and future damages at the rate of Rs. 50 per month were also awarded. In appeal, the lower appellate Court confirmed the findings of the trial Court holding that the property in suit was not an 'accommodation' and concurred with the finding that the defendants were in arrears from 1.10.1961. It however held that the arrears for the period from 1.10.1961 to 30.8.1962 were time barred and accordingly reduced the decree for arrears of rent. Damages, pendente lite and future were reduced to Rs. 30/- per month. The defendant appellant has therefore come in appeal against the decree of ejectment passed against him whereas the plaintiffs have filed a cross-objection and have contended that no portion of the arrears claimed was barred by the law of limitation. The plaintiffs have further contended that the lower appellate Court committed an error of law in reducing the pendente lite and future damages. 3. The first question for determination is whether the property in suit was an accommodation within the meaning of Section 2(a) of the Act. A reading of Section 2(a) would show that "accommodation" under that section means residential and non-residential accommodation in any building or part of a building, but does not include any accommodation used as a factory or for an industrial purposes where the business carried on in or upon the building is also leased out to the lessee by the same transaction. It is not disputed before me that the land leased out was only a plot of land over which the defendant respondent has installed a floor mill and has raised some constructions. According to the lower appellate Court these were of a temporary character only. It is not disputed before me that the land leased out was only a plot of land over which the defendant respondent has installed a floor mill and has raised some constructions. According to the lower appellate Court these were of a temporary character only. It is contended before me that the definition of accommodation as given in the Act includes any accommodation irrespective of the fact whether the constructions were made by the landlord or the tenant, and as soon as the constructions were made by the tenant the nature of the land after constructions became an accommodation within the Act and as such the defendant appellant could not be ejected without the permission of the Rent Control & Eviction Officer. 4. It is true that there is nothing in the definition of accommodation (as given in the Act) to indicate that the residential accommodation should be owned by the landlord or by the tenant, but the Act is a statute framed for controlling the letting and the rent of buildings and prevent the eviction of tenants therefrom. The definition of accommodation as given in Section 2(a) of the Act can on no account include a building owned by the tenant himself, because he cannot himself be the landlord and the tenant of the same premises. The constructions in the present case were found to of a temporary nature but assuming that the constructions were of a permanent nature and were constructed by the tenant himself then also as between the landlord and the tenant the existence of the building cannot be taken into account for determining the rights of the landlord. Accommodation as defined in Section 2 cannot be given different meaning in different sections, Section 5 of the Act deals with the control of rent between the landlord and the tenant and there can be no question of control of rent where the building belongs to the tenant himself. Section 7-D also talks of accommodation in the occupation of the tenant and gives the tenant the right to complaint against the withholding or cutting off of any amenities enjoyed by the tenant in an accommodation. Surely the accommodation constructed by the tenant could not be the accommodation contemplated under Section 7-D. Likewise, Section 7-E also cannot refer to an accommodation owned and constructed by the tenant. Surely the accommodation constructed by the tenant could not be the accommodation contemplated under Section 7-D. Likewise, Section 7-E also cannot refer to an accommodation owned and constructed by the tenant. As between the tenant and the sub-tenant the house constructed by the tenant will come within the definition of accommodation, but as between the landlord and the tenant, the building constructed by the tenant could not come within the definition of accommodation unless the accommodation was constructed on behalf of the landlord and is owned by the landlord. The Courts below were therefore correct in holding that the property in suit was not an accommodation within the meaning of Section 2(a) of the Act and as such as the provisions of the Act will not apply to the facts of the case. 5. Apart from the above circumstances, this appeal has to be dismissed on the ground of default as well. It is not disputed that the tenant remained in arrears in spite of notice of demand. The arrears decreed by the trial Court were for about four years. The appellant was therefore liable to ejectment on that account also and the decree for ejectment was rightly granted him. The learned counsel for the respondent in support of the cross-objection has contended that the reduction of pendente lite and future damages from Rs. 50 to Rs. 30 by the lower appellate Court was not justified. I find that the lower appellate Court has given reasons for reducing the amount of damages. These reasons are not vitiated by any error of law. The rental value of the land, according to the lower appellate Court, was Rs. 30 only. 6. The next contention of the learned counsel for the respondent that no portion of the arrears were time-barred is also incorrect. The suit admittedly was filed on the 1st March, 1966 and the arrears of rent for the three years preceding the date of the suit were obviously time-barred, unless the period was extended by some acknowledgement. It is contended by the learned counsel for the plaintiff respondents that the money orders sent on earlier occasions by the tenant would extend the period of limitation under Section 18 of the Limitation Act. I am not prepared to accept his condition. Firstly, the money order coupons have not been filed. It is contended by the learned counsel for the plaintiff respondents that the money orders sent on earlier occasions by the tenant would extend the period of limitation under Section 18 of the Limitation Act. I am not prepared to accept his condition. Firstly, the money order coupons have not been filed. Secondly, there is no evidence on record to suggest that the money order coupons have been lost or destroyed and no effort has been made to prove the contents of the money order coupons by secondary evidence. Lastly, mere payment of a month's rent by money order will not extend the period of limitation in respect of rents of other months because the cause of action for a suit for arrears of rent arises distinctly on the expiry of every month. The fact that some money orders were sent would not therefore constitute an acknowledgement within the meaning of Section 18 of the Limitation Act. 7. The result, therefore, is that this appeal and the cross-objection are dismissed but in circumstances of the case the costs of the appeal and the cross-objection shall be on the parties. Stay order, if any, shall stand vacated. 8. The decree for ejectment shall not be executed for a period of three months provided the decretal amount together with the rent due up to 31 August 1969 is deposited by the 15th of August 1969 and the rent for September and October 1969 is deposited by the 7th of the every month. In case of default, the decree shall become executable. The amount already deposited by the judgment debtor shall be adjustable in the amount ordered to be deposited today. The decree holder shall be entitled to with draw the amounts deposited by the judgment debtor. 9. The judgment debtor undertakes to vacate the land in suit in three months' time.