Laiq Ahmed v. Pashupati Nath Mahant — 1978 DIGILAW 5 (ALL)

JUDGMENT M.P. Saxena, J. - This is a defendant's revision application against the judgment and order dated 8.5.1976 passed by the learned District Judge, Azamgarh. 2. Briefly stated the facts are that the plaintiff opposite party filed a suit for the eviction of the revisionist from a shop and for the recovery of Rs. 126.64 as arrears of rent from 1.7.75 to 8.8.75, Rs. 130.33 as damages for use and occupation for the period 9.8.75 to 10.9.75 and pendente lite and future damages at the rate of Rs. 100/- per month. The shop was alleged to have been constructed in 1969 and the provisions of U.P. Act XIII of 1972 were not applicable to it. The requisite notice to quit was served on the defendant-revisionist on 9.7.1975. 3. The defendant-revisionist contested the suit, inter alia, on the ground that there was an agreement between the parties according to which certain amount was paid to the landlord as advance rent etc. and till that was adjuster he was not liable to eviction, that the entire advance rent was not adjusted and in its absence he could not be evicted and that the notice to quit was illegal. 4. The learned trial court came to the conclusion that the notice to quit was valid but according to the agreement, the amount paid as advance rent was not adjusted towards rent and the defendant was not liable to eviction. He also came to the conclusion that the plaintiff was not entitled to any amount as arrears of rent or damages for use and occupation. Accordingly the suit was dismissed with costs to the defendant. 5. The defendant filed a revision under section 25 of the Small Cause Courts Act and the feared District Judge came to the conclusion that the entire amount paid by way of advance except a trifling sum, was adjusted towards rent and the defendant was liable to ejectment. The notice to quit was held to be valid. The suit for ejectment and for the recovery of Rs. 31.64 as arrears of rent and Rs. 103.33 as damages for use and occupation and future damages at the rate of Rs. 100/- per month was decreed. 6. The notice to quit was held to be valid. The suit for ejectment and for the recovery of Rs. 31.64 as arrears of rent and Rs. 103.33 as damages for use and occupation and future damages at the rate of Rs. 100/- per month was decreed. 6. The defendant has filed this revision application and the only point urged by his learned counsel is that there was an agreement between the parties according to which the defendant had paid certain amount as advance towards rent and unless that was adjusted he was not liable to eviction. According to him, the adjustment was never made and decree for ejectment could not be passed. 7. I have looked into the material on the record. There is an agreement on the record which is an unregistered document. however, it is admitted between the parties that there was an agreement according to which the defendant had paid Rs. 1,400/- as advance rent. It was also agreed that the amount spent on fitting of shutter-gates shall also be treated as advance rent and till both these sums were adjusted towards rent the defendant would not be liable to ejectment. There is also no controversy that the defendant had spent Rs. 1475/- on the fitting of shutter-gates. According to the agreement, the tenancy was to commence from 1.8.1969 and the defendant was liable to pay rent at the rate of Rs. 100/- per month. On these admitted facts it is to be considered whether the advance payments made stood adjusted towards rent upto the date of the suit or not. As stated above, Rs. 1400/- were paid as advance rent Rs. 2,475/- were spent over shutter-gates. Thus a total of Rs. 3,875/- was paid as advance towards rent. Besides it, the defendant had paid Rs. 200/- as rent for October and November vide 20-Ga. Rs. 1,400/- were paid as rent from December 1972 to January 1974 ; Rs. 100/- were paid as rent for February, 1975, and again Rs. 200/- as rent for May and June 1975. In this manner the defendant paid a total sum of Rs 5,700/- only upto June 1975. From 1.8.69 to June 1975 a sum of Rs. 7,100/- fell due as arrears of rent. 100/- were paid as rent for February, 1975, and again Rs. 200/- as rent for May and June 1975. In this manner the defendant paid a total sum of Rs 5,700/- only upto June 1975. From 1.8.69 to June 1975 a sum of Rs. 7,100/- fell due as arrears of rent. Therefore, there can be no manner of doubt that the entire amount paid as advance or subsequent payments were completely adjusted towards the arrears of rent and something still remained due to the landlord. The revisionist's contention that even after paying advance rent or incurring cost of shutters be continued to pay rent is far from credible because when he had paid advance rent and the same was to be adjusted towards rent, there is no reason why he should have paid rent twice over for that period till the advance was exhausted. Secondly, he is alleged to have paid rent up to April 1975 and received receipts of its payment. For reasons best known to him he did not choose to file those receipts. No receipts of adjustment could be issued by the landlord as he had already issued receipts in respect of the advance made to him and under a written agreement the same was to be adjusted towards arrears of rent. For all these reasons the learned lower court rightly held that the entire amount paid as advance was adjusted before notice to quit was given. As the provisions of U.P. Act No. XIII of 1912 were not applicable to this building the petitioner was liable to ejectment. 8. The revision application has, therefore, no force and is dismissed with costs on parties.