Shanti Devi v. Gopal Narain Misra — 1983 DIGILAW 282 (ALL)

JUDGMENT P.N. Bakshi, J. - These are two connected revisions arising out of a common judgment. 2. Briefly stated the Plaintiff's case is that there is a premises No. 133/10 M-Block situate in Qidwai Nagar, Kanpur. According to the Plaintiff, that Block consists of there shops one of which was let out to Laxmi Shanker Tewari in September, 1967, and the adjoining shop was let out to Gopal Narain Misra in 1970. The rent payable by Laxmi Shanker Tewari was Rs. 100/- per month while the rent payable by Gopal Narain Misra was Rs. 150/- per month. It is alleged that Laxmi Shanker Tewari had sub-let his shop to Gopal Narain Misra who converted both the shops into one by demolishing the intervening wall. Gopal Narain Misra had not paid rent from 1-7-1975 nor he had paid water tax from 15-7-75 nor drainage tax from 1-4-76. As such a notice dated 1-6-76 was served upon him terminating his tenancy. 3. Thereafter the Plaintiff filed a suit No. 38 of 1977 in the Court of District Judge, Kaupur, for ejectment of Gopal Narain Misra and for recovery of arrears of rent amounting to Rs. 1815/-, arrears of water tax amounting to Rs. 254.26 and arrears of drainage tax amounting to Rs. 50.81. Damages for use and occupation was also claimed. 4. Another suit No. 589 of 1977 was filed by the Plaintiff in the Court of Judge Small Causes, Kanpur, on 19-4-1977 for ejectment of Laxmi Shanker Tewari and for recovery of Rs. 2093.33 as arrears of rent, Rs. 43.75 as arrears of water tax, Rs. 114.66 as arrears of drainage tax. Damages for use and occupation was also claimed. 5. Gopal Narain Misra contested the suit. He denied that Laxmi Shanker Tewari had sublet any shop to him or that he had converted the alleged shop of Laxmi Shanker Tewari for his own use by demolishing the intervening wall. He pleaded that the entire shop had been let out to him at a rental of Rs. 150/- per month inclusive of taxes. Gopal Narain Misra deposited the entire arrears or rent and damages together with interest at 9% and costs of the suit u/s 20(4) of the U.P. Act XIII of 1972. 6. He pleaded that the entire shop had been let out to him at a rental of Rs. 150/- per month inclusive of taxes. Gopal Narain Misra deposited the entire arrears or rent and damages together with interest at 9% and costs of the suit u/s 20(4) of the U.P. Act XIII of 1972. 6. The defence of Laxmi Shanker Tewari was that he and Gopal Narain Misra had started partnership business in shop from 16-9-67 and in the year 1970 they requested the Plaintiff to let out the adjoining shop also as they felt paucity of accommodation. The Plaintiff ultimately agreed and let out the adjoining shop after demolishing the intervening wall. The rent of the entire accommodation was Rs. 250/- per month. It may be mentioned; that apart from filing the written statement Laxmi Shanker Tewari did not contest the suit. 7. Both these suits were filed on the same date in different Courts. Since common question of law and fact was involved suit No. 589 of 1977 was also transferred to the Court of District Judge, Kanpur to be tried together with suit No. 38 of 1977. They were both consolidated and disposed of by the impugned order. 8. The trial Court dismissed suit No. 588 of 1977 in toto and as for suit No. 38 of 1977 the claim for ejectment of the Defendant was dismissed. A decree was granted to the Plaintiff for the recovery of Rs. 3150/- as arrears of rent from 1-7-75 to 31-3-1977 for the recovery of water and drainage taxes amounting to Rs. 319.14 and 67.68. Proportionate costs was awarded. Since this amount had already been deposited by the Defendant u/s 20(4) of the U.P. Act XIII of 1972 the Plaintiff was directed to withdraw the entire amount deposited then. Aggrieved by the aforesaid decision Civil Revision No. 338 of 1981 and Civil Revision No. 339 of 1980 have been filed in this Court which are being disposed of by this common order. 9. Two main submissions have been made by the Plaintiff-applicant's Counsel. The first submission was that from the pleadings of the parties it is evident that two separte premises were let out by the Plaintiff. One shop was let out to Laxmi Shanker Tewari in the year 1967 and the other shop was let out to Gopal Narain Misra in 1970. Two main submissions have been made by the Plaintiff-applicant's Counsel. The first submission was that from the pleadings of the parties it is evident that two separte premises were let out by the Plaintiff. One shop was let out to Laxmi Shanker Tewari in the year 1967 and the other shop was let out to Gopal Narain Misra in 1970. The rent of Laxmi Shanker Tewari's shop was Rs. 100/- whereas the rent of Gopal Narain's shop was Rs. 150/-. Laxmi Shankar Tewari did not contest the suit after filing his written statement. As such, the Court below has acted illegally in not decreeing the suit against him. The second submission put forward was that according to the case of the Plaintiff, water tax had not been paid by Gopal Narain Misra. Even the deposit made by him u/s 20(4) of Act XIII of 1976 did not include the deposit of arrears of water tax. The argument was that water tax was included within the definition of 'rent' payable by the tenant in view of Section 7 of U.P. Act XIII of 1972 and the Defendant having defaulted In depositing this part of the arrears he was not entitled to the benefit of Section 20(4) of the Act. 10. I am alive to the situation that a finding of fact recorded by the subordinate Court should not be treated lightly by a Court of revision. In the instant case the Court below appears to have recorded a finding that the Plaintiff has failed to establish that Laxmi Shan kanpur r Tewari has sublet the shop to Gopal Narain Misra and that Gopal Narain Misra had converted both the shops into one by demolishing the intervening wall. There can be no doubt from the pleadings of the parties there were two independent shops which were let out by the Plaintiff to Laxmi Shankar Tewari and Gopal Narain Misra. As a matter of fact, from the allegations of the plaint and the written statement of Laxmi Shankar Tewari it appears to be almost an admitted position that the latter was let in the shop in the year 1967 and from the readings of the plaint and the written statements of Gopal Narain Misra the position also appears to be clear that he had been let into the premises in the year 1970. The rents for both these premises were separately agreed at Rs. 100/- and Rs. 150/- per month. There does not appear to be any contradiction on this score in the pleadings of the parties. Therefore, whether the premises of Laxmi Shankar Tewari had been sublet to Gopal Narain Misra or whether the wall intervening both the shops had been demolished are considerations which cannot result into total dismissal of both these suits. From a perusal of the impugned judgment I do not find any observation therein to indicate that these two tenancies had not been created. Therefore, if either of the tenants defaulted in the payment of arrears of rent etc., then they were clearly liable to ejectment. So far as Laxmi Shankar Tewari is concerned, he did not contest the suit. He merely filed a written statement. He did not make any deposit u/s 20(4) of U.P. Act XIII of 1972. He was duly served with a notice of demand with respect to arrears of rent, water tax, etc. due from him. As such I do not find any valid reason why the suit for ejectment of Laxmi Shankar Tewari should not have been decreed. 11. So far as Gopal Narain Tewari is concerned, his case stands on a different footing. He had made the deposit of arrears of rent. Interest, costs of the suit etc. as required u/s 20(4) of Act XIII of 1972 but he did not deposit the arrears of water tax. His case was that water tax was included in Rs. 150/- which had been agreed to between the parties as rent for the premises. In other words, he claimed that no payment for the water tax bad to be made independent of the sum of Rs. 150/- rent which was all inclusive. The finding of fact recorded by the Court below is that the rent of Rs. 150/- per month was not inclusive of both the taxes. That finding has to be accepted. The question, therefore, is whether it was necessary for the Defendant to have paid the arrears of water charges or in the alternative to have deposited them also along with the deposit of arrears made by him u/s 20(4) of the Act so that he could take advantage of being exempted from the liability of ejectment from the premises. The question, therefore, is whether it was necessary for the Defendant to have paid the arrears of water charges or in the alternative to have deposited them also along with the deposit of arrears made by him u/s 20(4) of the Act so that he could take advantage of being exempted from the liability of ejectment from the premises. In other words, the short question is whether the arrears of rent includes arrear of water tax. In this connection long and elaborate arguments have been advanced by the Counsel for both the parties. I have given my thoughtful consideration to the various decisions which have been cited on either side. The main argument hinges upon the interpretation of Section 7 of Act XIII of 1972 which runs as follows: Subject to any contract in writing to the contrary, but notwithstanding anything contained in Section 179 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, or in Section 149 or in any rule made or notification issued u/s 339 of the United Provinces Municipalities Act, 1916, or in Section 14(1) of the United Provinces Town Areas Act, 1914, the tenant shall be liable to pay to the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof if any, payable in respect of the building or part under the tenancy, namely: (a) the water tax;.... 12. On behalf of the applicant stress is laid upon the expression that the tenant shall be liable to pay to the landlord in addition to and as part of the rent the following taxes or proportionate part thereof. 13. It is submitted that the "arrears of water tax has to be treated as part of the rent which is to be paid in addition to the rent by the lessee to the lessor viz., by the tenant to the landlord. On the contrary the argument of the Counsel for the opposite side is that this expression merely fixes the liability of the tenant to pay arrears of water tax to the landlord. u/s 149 of the U.P. Municipalities Act, the liablity to pay water tax to the Government was that of the landlord. Now by this amendment the tenant has been made liable to pay the water tax to the landlord so that he may on his part transmit the same to the Government. u/s 149 of the U.P. Municipalities Act, the liablity to pay water tax to the Government was that of the landlord. Now by this amendment the tenant has been made liable to pay the water tax to the landlord so that he may on his part transmit the same to the Government. This arrear of water tax should not be taken as a part of rent a failure to pay which would entail the liability of ejectment of the tenant. This question now appears to have been settled even though by single Judge of our Court. Brother H.N. Seth, J. came to the conclusion in Anand Swamp v. Third Additional District Judge, Muzaffarnagar 1980 (1) U.P. RCC 150 that arrear of water tax were to be deemed as arrears of rent. He relied upon the expression "as part of the rent" and came to the above conclusion. In Ram Kumar Pandey v. Rama Nand Upadhya 1982 ARC 248 Brother U.C. Srivatava also took the same view that water tax was part of the rent due to the landlord. In Major Baldeo Krishna Bhandari v. VIth Additional District Judge, Lucknow 1982 ARC 121 Brother K.N. Goyal was of the view that water tax was included In the rent. In Madhusudan Dayal Vs. Anand Swarup, (1979) AWC 246 Brother V.K. Mehrotra also appears to have taken the view that water tax became part of the rent payable by the tenant. Some other single Judges of this Court in unreported decisions have also concurred with this view. 14. The solitary decision which is opposed to the aforesaid views is that of Brother S.D. Agarwala in Shiv Shankar Lal v. IIIrd Additional District Judge, Nainital 1981 ARC 298. I have perused that decision. Unfortunately Section 7 of U.P. Act XIII of 1972 was not brought to the notice of that Court so that it appears to have escaped his attention. I have perused that decision. Unfortunately Section 7 of U.P. Act XIII of 1972 was not brought to the notice of that Court so that it appears to have escaped his attention. In these circumstances this decision cannot have that persuasive value which is attached to the other single Judge decisions of this Court who have considered the question as a whole keeping in view the provisions of Section 7 of the Act It appears that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, has incorporated certain liberal provisions for the benefit of the tenants, for instance, a notice of demand for arrears of rent of four months' rent has to be given by the landlord to the tenant and if the tenant fails to make payment of arrears despite notice of demand, then he is rendered liable to ejectment, but if payment is made then he cannot be ejected. Even after the institution of a suit by the landlord against the tenant for failure of the latter to pay arrears of rent etc., Section 20(4) of the Act gives a further opportunity to the tenant to deposit entire arrears of rent with 9% interest and costs of the suit so that he can be protected against ejectment. This payment has to be made at the first date of hearing of the suit. Naturally, the objective seems to be that while on the one hand the tenant should be protected from ejectment obviously due to dearth of accommodation, on the other hand the monetary interest of the landlord should also be safeguarded and he must not be made to run from pillar to post for the purpose of recovering his legitimate dues. In this view of the matter it would be rather inconsistent to hold that even though the Act directs that the payment of water tax should be deemed to be "as part of the rent" yet it should not be taken to assume that character and that even if the tenant defaulted in not paying the arrears of water tax the landlord should again be made to run to a law Court for the purpose of enforcing this liability. The scheme of the Act appears to envisage that protection to tenant from ejectment and protection to landlord from unnecessary harassment are the two basic principles on which the Act XIII of 1972 is based. The scheme of the Act appears to envisage that protection to tenant from ejectment and protection to landlord from unnecessary harassment are the two basic principles on which the Act XIII of 1972 is based. In this view of the matter I am of opinion that the tenant Gopal Narain Misra having failed to deposit the arrears of water tax u/s 20(4) of Act XIII of 1972 has committed default the effect of which is that he cannot get the protection of the aforesaid section. The Court below has, therefore, acted illegally in refusing the relief for ejectment to the Plaintiff in this case. 15. For the reasons given above both these revisions are hereby allowed, the judgment and decree of the Court below are set aside and the suits of the Plaintiff are decreed with costs against each of the Defendants. This judgment will govern both the revisions.