Hari Singh v. Brahm Narayan Mehrotra — 1978 DIGILAW 367 (ALL)

JUDGMENT H. N. Eapoor, J. 1. THIS is a defendant's revision against the decree and judgment dated May 21, 1976 of the II Addl. District Judge, Nainital in C. R. No. 22 of 1975 confirming the decree and judgment of the Judge Small Causes Court, Kashipur at Nainital in S.C.C. suit no. 68 of 1974 decided on 28-4- 1975 (wrongly shown in the certified copy of the trial court as 1-1-1972) by which the plaintiff's suit for ejectment of the defendant from the house in suit and for recovery of arrears of rent from 1-11-1972 to 30-4-1974 and pendentelite and future damages at the rate of Rs. 31.25 per month was decreed. The plaintiff brought the suit on the allegations that the house in dispute originally belonged to his father Hari Karan Das, who died on 8-3-1972 and that he had purchased that house during the life time of his father from him by means of a sale deed dated November, 1962. The case of the plaintiff further' is that his father no doubt continued to realise rent from the defendant even after its purchase. The defendant, therefore, was informed by his father that the house had been purchased by the plaintiff. According to the plaintiff, the defendant had not paid rent since 1-11-1972 and was in default inspite of notice and as such the suit was brought for ejectment and recovery or arrears of rent. 2. THE defence was that the house belonged to Har Karan Das and on his death there was a dispute among his heirs in respect of the house and so the defendant had deposited the entire rent from 1-11-1972 under Sec. 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972) ; and that he had informed the plaintiff to withdraw the amount on the proof of his title. The defendant had again deposited a sum of Rs. 925.66 Np. under Section 20(4) of the said Act at the time of the first hearing and he claimed benefit of that deposit as well. The defendant had again deposited a sum of Rs. 925.66 Np. under Section 20(4) of the said Act at the time of the first hearing and he claimed benefit of that deposit as well. The trial court after considering the entire evidence on the record arrived at the conclusion that there was no bona fide doubt or dispute with regard to the ownership of the house and as such the defendant could not get any benefit on account of deposit under Section 30 of the Act. The defendant has taken the further plea that he can deposit the rent under Section 30(1) of the Act also as the plaintiff had refused to accept the rent and no evidence was adduced in respect of this plea. The trial court found that this plea remained unsubstantiated. 3. WITH regard to the deposit under Section 20(4) of the Act, the trial court found that the same cannot be taken into consideration for two reasons ; firstly that costs had not been deposited and secondly that the proviso to Section 20(4) was attracted and it was fully proved that the son of the defendant had got a house constructed in the same town and as such, the defendant was not entitled to the benefit under Section 20(4) of the Act. 4. IN revision, the II Addl. District Judge arrived at the same conclusion, and dismissed the revision. He refused to allow the benefit under Sec. 20(4) of the Act, only on the finding that the defendant had not deposited full costs of the suit. It, however, recorded a clear finding on the other point as follows : "It is not at all borne out from the evidence and the circumstances of the case that there was any bona fide doubt or dispute with regard to the title of the landlord......hence the defendant committed default in payment of arrears of rent within the meaning of Section 20(2) (a) and the defendant is liable to ejectment." Feeling aggrieved, the defendant has filed this revision. The same two points arise for decision in this case, with regard to the first point, learned counsel for the applicant has argued that after the death of Harkaran Das, his widow Smt. Radha Rani started realising rent from the applicant. In this regard, he has placed reliance on the money-order receipt (Ext. A-8 and Ext. The same two points arise for decision in this case, with regard to the first point, learned counsel for the applicant has argued that after the death of Harkaran Das, his widow Smt. Radha Rani started realising rent from the applicant. In this regard, he has placed reliance on the money-order receipt (Ext. A-8 and Ext. A-4 signed by Smt. Radha Rani and another receipt (Ext. A-10) signed by Dhru Kumar, grandson of Smt. Radha Rani on behalf of Smt. Radha Rani. This was in respect of rent for the months of June, 1972, July, 1972 and September, 1972. He has also placed reliance on the reply notice given by him dated 12-3-1973 (Ext. A-7) in which he has stated that rent was sometime claimed by Smt. Radha Rani and sometime by the plaintiff and so he had deposited three months' rent, November, December and January under Section 30 of the Act which the plaintiff could withdraw. On the other hand, the plaintiff has relied on his earlier notice dated 13-2-1967 (Ext. 15) which was sent through his counsel in which it was clearly stated that the house was owned by him. He has also relied upon the reply (Ext. 17) given by the defendant admitting his tenancy and only stating that his father was collecting rent. He has also relied on the notice dated 23-9-1972 (Ext. 11) in which it was clearly stated that the plaintiff was the sole owner of the house having purchased it from his own father. He had demanded rent by means of that notice. No doubt, he had demanded rent after February, 1972 but only two months' rent for the months of September and October was sent to him along with 25 per cent enhanced rent and he had accepted the same, vide money-order coupon (Ext. 3). He has then relied on subsequent notice dated 2-3- 1973 (Ext. 13) in which he had demanded only four months rent, after the month of October, 1970 that is, he had not disputed the payment already made for the earlier months to his mother. Ext. A-7 was the reply to this notice. Final notice . was sent on 1-5-1974 and was served on 6-5-1974 which was also a notice terminating the tenancy under Section 106 Transfer of Property Act. Rent was again claimed for the entire period, that is, November, 1972 till April, 1974. Ext. A-7 was the reply to this notice. Final notice . was sent on 1-5-1974 and was served on 6-5-1974 which was also a notice terminating the tenancy under Section 106 Transfer of Property Act. Rent was again claimed for the entire period, that is, November, 1972 till April, 1974. In reply to this notice, the defendant sent reply dated 15-4-1974 (Ext. A-6) stating that the entire rent had been deposited under Section 30 of the Act. Both the lower courts arrived at the conclusion that there was no bona fide dispute and there could be no bona fide doubt with regard to the ownership and as such the deposit under Section 30 was not valid. Learned counsel for the applicant has argued that the lower courts have only referred to the notice (Ext. A-7) but have not discussed it. The trial court has referred to this notice at a later stage also. Moreover, it is clear from the judgment of the trial court that the entire evidence had been considered and then the finding was recorded. The lower revisional court also noticed the entire evidence, I do not think that it was necessary to discuss each and every piece of evidence in detail by the revisional court while confirming the finding of the trial court. Learned counsel for the opposite party has placed reliance on the case of M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379 and has argued that it is not open to this Court in revision to upset a finding of fact recorded by the lower court. It has not been shown as to what was the jurisdictional error in recording the finding. On the other hand learned counsel for the applicant has argued that a liberal view should be taken and the intention of the Legislature is not to penalise a tenant who is not withholding money and who did deposite the same under Section 30 of Act. In support of this contention he has placed reliance on the case of Bhika Lal v. Munna Lal, 1973 AWR 35. But that case was distinguishable. In support of this contention he has placed reliance on the case of Bhika Lal v. Munna Lal, 1973 AWR 35. But that case was distinguishable. In that case an amount in excess of the decretal amount had already been deposited in an earlier suit in pursuance of the Court's order and the tenant had informed the landlord that he could withdraw that amount and in case any assistance was needed, he was prepared to render such assistance. That was the case of deposit under Section 7-C (i) of the old Act corresponding to Section 30 of the new Act. Learned counsel for the applicant has also placed reliance on the case of Dr. Brahmanund v. Smt. Kaushilla Devi, AIR 1977 SO 1198. In that case, no doubt, the Hon. Supreme Court has held that there were different modes of tender for the purpose of attracting Section 7-C (1) of the old Act. But it was clearly held that it was not open to the defendant to make deposit under these sections without any adequate and sufficient reasons. In the case of Ramayan Ram v. Bharat Ram, 1964 AWR 590, Dhavan, J., has held that a tenant has to establish that there was any bona fide doubt or dispute, or a dispute had arisen as to person who was entitled to receive the rent and then only he could deposit the rent under Section 7-C(2) of the Act, Under these circumstances, the view taken by the lower courts cannot be considered to be erroneous in law. Certainly there is no question of any jurisdictional error in taking such a view. 5. LEARNED counsel for the applicant next argued that the applicant was entitled to get the benefit of Section 20 (4) of Act No. XIII of 1972, as he had deposited the entire amount of Rs. 925. 66. The revisional court did not grant the benefit under Section 20 (4) because costs admittedly had not been deposited. Learned counsel for the applicant has, however, argued that this amount had been deposited over and above the amount already deposited under Section 30 of the Act and that amount was sufficient to cover costs and that this aspect has not been considered by the lower courts. Learned counsel for the applicant has, however, argued that this amount had been deposited over and above the amount already deposited under Section 30 of the Act and that amount was sufficient to cover costs and that this aspect has not been considered by the lower courts. He has argued that even if it is assumed that deposit under Section 30 was not valid for the purpose of giving benefit under Section 20 (2) of the Act, it could certainly be taken into consideration for the purpose of Section 20 (4) of the Act in my opinion, for purposes of this case, it is not necessary to record a definite finding on this point. The trial court has found that the proviso to sub-section (4) was attracted as it was admitted to the defendant that his son got another house constructed. Learned counsel for the applicant has however, argued that the lower revisional court did not give any finding on, the point that the son was living separately from the defendant for the last 10-12 years and was having an lcetactory in the other building. The trial court took the view that for purposes of this proviso, all that had to be proved was that a member of the family as defined under Section 3 (g) had built or acquired another building. In its view it was not necessary to go into the question whether the member of the family was residing separately. I find that in recent amendment by U. P. Act No. XXVIII of 1976 for purposes of Section 21, Explanation (1), it has been clarified with retrospective effect that any member of the family or the tenant Has got to be a person who is normally residing with him or is wholly dependent on him. But no such words have been added to the proviso to subsection (4) of Section 20. The intention of the legislature thus appears to be that while considering the comparative need, this fact may have to be taken into consideration that a member of the family was normally residing with the tenant or was dependent on him. But for the purpose of special concession given under Section 20 (4) it was not necessary to go into such a controversy. For the above reasons, the view taken by the trial court on this point too appears to be correct. But for the purpose of special concession given under Section 20 (4) it was not necessary to go into such a controversy. For the above reasons, the view taken by the trial court on this point too appears to be correct. 1 do not think that it is necessary to remand the case to the lower revisional court for considering this aspect as it has to be seen whether it is possible to interfere in revision with the findings recorded by the trial court on this point. 6. IN the result there is no force in this revision, it is dismissed with costs. Learned counsel for the applicant prayed that six months time may be allowed to the applicant to vacate the premises. But he is not in a position to give an undertaking on behalf of his client that he would vacate the premises after the expiry of any such time which is allowed by this Court. Under the circumstances, only one month's time is allowed to the applicant to vacate the premises. Revision dismissed.