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1979 DIGILAW 1065 (ALL)

Sant Narain Mehrorta v. Ram Kishan Gupta

1979-10-05

C.S.P.SINGH.

body1979
ORDER C.S.P. Singh, J. - This is a revision by the plaintiff-applicant. The defendants were running a school known as Shishu Vihar Vidyalaya of which Sri Ram Kishan Gupta was the Manager and his wife Smt. Mithlesh Gupta was its Principal. The suit was filed on the-allegation that the defendants had been paying rent at Rs. 100 per month with effect from 15-7-1975, and had become liable to pay Rs. 125 per month the standard rent, on the enforcement of Act No. XIII of 1972. Apart from this, under the new Act they were also liable to pay water tax at the rate of Rs. 12.50 per month. The defendants defaulted in payment of rent from the 1st November, 1973 in spite of registered notice of demand of arrears dated 10-6 1976, which had been served on them on 24-6-1976, and as a consequence they had become liable to ejectment and payment of the arrears of aforesaid. 2. The defendants denied the receipt of any notice demanding arrears of rent, and alleged that they had been paying the rent, but the landlord had refused to accept the rent twice from November, 1973, and further that on the receipt of the notice they bad deposited Rs. 4,000 towards arrears of rent from 1-11-1973 to 28-2-1976. As regards the enhancement of rent, it was alleged that as the municipal assessment for the whole building was Rs. 960 per year, and as the defendants were occupying only a portion of the accommodation, the rent could not be enhanced. As regards the liability for water tax it was pleaded that as one of the defendants was an educational institution, it was exempt from paying water tax. The trial Court held on a consideration of the documentary and oral evidence that the notice of demand sent by the landlord which contained an endorsement of the refusal by the tenant was in fact not served on the defendants. As regard the claim for enhancement of the rent it found that the municipal assessment of the whole building since was only Rs. 960, and the defendants were occupying only half of the building, and as the agreed rent was its. As regard the claim for enhancement of the rent it found that the municipal assessment of the whole building since was only Rs. 960, and the defendants were occupying only half of the building, and as the agreed rent was its. 00 per month which was in excess of the 'standard rent" as defind in Act 13 of 1972, the plaintiff was not entitled to enhance the agreed rent by notice dated 15th September, 1972 given under Section 5/7 of the Act. The claim for water tax was decreed at the rate of Rs. 4 per month. 3. Counsel for the plaintiff applicant urged that the trial court erred in holding that the notice had not been served on the defendants. It was contended that there was a clear endorsement in the notice that the defendants bad refused to accept the notice and the subsequent endorsement on the registered cover to the effect (Nahi Mila) referred to the landlord to whom the registered corer was sought to he returned after the tenant had refused to accept the notice in this connection it was also urged that the only person authorised to accept the notice was the Manager of the institution, i. e. Ram Kishan Gupta and Smt. Mithlesh Gupta; his wife who was the Principal of the institution, had no authority to either accept or refuse the notice. It was also contended that the statement of Smt. Mithlesh Gupta to the effect that the notice had not been received was valueless, as it was only Ram Kishan Gupta, the Manager, who could depose to that effect. The scope of a revision under Section 25 is limited as one has to examine only as to whether any error of law has been committed by the trial Court. In the present case although Ram Kishan Gupta, the Manager did not appear as a witness, the Principal of the institution Smt. Mithlesh Gupta appeared and deposed "that the notice sent by the plaintiff had not been received by the institution. In the present case although Ram Kishan Gupta, the Manager did not appear as a witness, the Principal of the institution Smt. Mithlesh Gupta appeared and deposed "that the notice sent by the plaintiff had not been received by the institution. It may have been Netter in case Sri Ram Kishan Gupta the Manager had appeared as a witness, but the statement of Smt. Mithlesh Gupta cannot be ignored only on the ground that she was not the Manager of the institution, for she being the Principal of the institution would be aware of the tact as to whether any notice was sent to the institution The judgment also does not disclose that any attempt was made by the plaintiff to challenge the authority of Smt Mithlesh Gupta to accept the notice on behalf of the institution. So far as the alleged misreading of the endorsement "Nahi Mila" by the trial Court is concerned that is inconsequential. f r even if it be taken that the endorsement related to the landlord the trial court having considered the evidence of the parties regarding the fact as to whether notice was refused by the institution and on an appraisement of the evidence having come to the conclusion that it was not refused, the finding recorded by it cannot be said to be erroneous in law. It is no doubt true that a presumption of service arises in care there is an endorsement of refusal by the addressee, but in view of Section 4 of the Evidence Act it is a rebuttable presumption, and can be displaced by evidence being led by the defendants that the notice was not received and had not been refused. In the present case this is what has happened, as the Judge on a consideration of the evidence has held that the defendant-institution did not refuse to accept the notice. This contention, therefore, fails. So far as the claim for enhancement of the rent is concerned that should have teen decreed. Section 3 (k) defines standard rent in the following terms :- "3 (k). 'Standard rent' subject to the provisions of Sections 6, 8 and 10 means :- (1) in the case of building governed by the old Act and let out at the time of the commencement of this Act. Section 3 (k) defines standard rent in the following terms :- "3 (k). 'Standard rent' subject to the provisions of Sections 6, 8 and 10 means :- (1) in the case of building governed by the old Act and let out at the time of the commencement of this Act. (a) where there is both an agreed rent payable therefor at such commencement as well as a reasonable annual rent (which in this Act has the same meaning as in S 2 (f) of the old Act, reproduced in the Scheduler, the agreed rent, or the reasonable anneal rent plus 25 per cent thereon whichever is greater". 4. Section 5 gives an option to the landlord to enhance the rent payable by the tenant in cases of tenancy's continuing before the commencement of this Act, to an amount equal to the standard rent. In the present case the Judge has recorded a finding that the agreed rent of the premises was Rs. 100/- per month. That rent was more than the reasonable annual rent calculated on the basis of the municipal assessment. This being so, the landlord could, by notice under Section 25, enhance the rent by 25 per cent of the agreed rent. Sri Harkauli appearing on behalf of the tenant urged that the enhancement to the extent of 25 per cent can he made only in respect of the reasonable annual rent, and not of the agreed rent, and as there is a clear finding to the effect that the agreed rent was more than the standard rent, the claim of the landlord for enhancement of the rent and a decree for the same was rightly refused by the trial court. The relevant part of Section 3 (k) has already been extracted earlier. It is not possible to read the word "plus 25 per cent" as being addressed only to the reasonable annual rent, for the wordy "whichever is greater" clearly indicate that the standard rent is the agreed rent plus 25 per cent or the reasonable annual rent plus 25 per cent whichever is greater. 5. In the present case the reasonable annual rent was less than the greed rent. The twenty-five per cent addition had to be made to the agreed rent. Thus, the landlord was entitled to a rent of Rs. 125/- per month in accordance with Section 3 (5) of the Act 6. 5. In the present case the reasonable annual rent was less than the greed rent. The twenty-five per cent addition had to be made to the agreed rent. Thus, the landlord was entitled to a rent of Rs. 125/- per month in accordance with Section 3 (5) of the Act 6. The revision is accordingly partly allowed. The decree of the trial court dismissing the suit of the plaintiff for ejectment is upheld as also that decreeing it for water tax. The suit of the plaintiff for arrears of rent at the rate of Rs. 125/- per month as from the commencement of the Act 13 of 1972 is decreed. The defendants will be entitled to the adjustment of the amount of rent already deposited or paid by them. In view of the partial success and failure of the parties they shall bear their own costs.