Jafar Ali v. Raj Rani — 1986 DIGILAW 208 (ALL)

JUDGMENT N.D. Ojha, J. - These two civil revisions are between the same parties and arise out of the same suit and as such are being decided by a common order. 2. The Plaintiff opposite party in these revisions is the landlord of a shop and the applicant was its tenant. A suit being suit No. 14 of 19OU was instituted by the opposite party for adjustment of the applicant and for recovery of arrears of rent and damages. The case of the opposite party was that the applicant was a tenant of the shop in question on a monthly rent of Rs. 300/-, that he was in arrears of rent since July, 1979, and that notwithstanding the service of a notice dated 18th September, 1980, whereby a demand was made for arrears of rent and the tenancy of the applicant was terminated the applicant failed to clear off the arrears of rent. Consequently, he was a defaulter in payment of rent and was liable to adjustment. The suit was contested by the applicant inter alias on the ground that the rate of rent was Rs. 150/- per month only and not Rs. 300/-. He also asserted that he had paid the rent up to the month of July, 1980, and rent was due only since August, 1980. On account of certain deposits made by him the applicant also asserted that no decree for adjustment deserved to be passed against him. The validity of the notice u/s 106 of the Transfer of Property Act was also challenged by the applicant. The plea of immunity from adjustment on account of deposits made by the applicant was based on Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). None of the pleas raised by the applicant in his defense found favor with the court below and the suit was decreed on 19th April, 1985, for adjustment of the applicant as also for recovery of arrears of rent and damages. Thereafter the applicant made an application in the court below for setting aside the decree dated 19th April, 1985, on the ground that the said decree was ex-prate and deserved to be set aside in view of the facts stated in the affidavit filed in support of the application for setting aside the ex prate decree. Thereafter the applicant made an application in the court below for setting aside the decree dated 19th April, 1985, on the ground that the said decree was ex-prate and deserved to be set aside in view of the facts stated in the affidavit filed in support of the application for setting aside the ex prate decree. Tins application was filed on Vtn August, 1985, and was dismissed on 8th August, 1985. Civil Revision Mo. 494 of 1985 has been filed agamas the decree dated 19th April, 1985, whereas Civil Revision No. 516 of 1985 has been filed against the order dated 8th August, 1985, dismissing the application lore setting aside the ex prate decree. 3. Civil Revision No. 516 of 1985 may be taken up first inasmuch as if that revision is allowed and the ex prate decree is set aside on the ground that sufficient cause had been made out lore non-appearance of the Defendant on the date of hearing, it will not be necessary to decide civil revision No. 494 of 1985 the same being against the said ex prate decree dated 19th April, 1985. 4. From a perusal of the order dated 8th August, 1985, dismissing the application to set aside the ex-prate decree it appears that it was admitted before the court below that the parties had closed their evidence both oral and documentary on 18lh November, 1982. Consequently, only arguments had remained to be heard. It leather appears from the said order that arguments could not be heard on several dates inasmuch as on one ground or the other the case had to be adjourned at the instance of the defendant applicant sometimes on the ground of illness and sometimes on the ground that his counsel was not ready with the case. It also transpires from the order-sheet of the court below that the case could not be take-up after 18th November 1*82 till 18th May, 1984, i. e., nearly tore one and a half years, even though it was a small cause court sun. When the case was taken up on 18tn May, 1984, as the order sheet indicates, again an application was made by counsel for the Defendant-applicant for adjournment of the case on the ground that the Defendant had gone out. Even this application was allowed and 2nd July, 1984, was fixed for arguments. When the case was taken up on 18tn May, 1984, as the order sheet indicates, again an application was made by counsel for the Defendant-applicant for adjournment of the case on the ground that the Defendant had gone out. Even this application was allowed and 2nd July, 1984, was fixed for arguments. It appears that on some date between 18th May, 1984 and 2nd July, 1984, the Presiding Officer was transferred and by an order of the District Judge dated 13th September, 1984, the suit was transferred to the court of the 4th Additional District Judge, Gorakhpur. The order sheet dated 10th December, 1984, indicates that the file was received by transfer in the court of 4th Additional District Judge, Gorakhpur, on that date and 19th January, iy83, was fixed tore arguments. The case was Ultimately decided on 19th April, 1985. 5. The affidavit filed in support of the application lot setting aside the ex-prate decree indicates that the case of the applicant was that his counsel was not given any information of the transfer of the suit to the court of the 4th Additional District Judge and, consequently, he could not appear on 10th April, 1985, on which date the arguments ol the Plaintiff s counsel were heard and 19th April, 1985, was fixed log delivery of judgment. In regard to this allegation the court below has pointed out that the order sheet dated 13tli February, i985, 4th April, 1985 and other April, 1985, indicated that both the parties had appeared in the court of the 4th Additional District Judge where one suit had been transferred and consequently the case of the Defendant that lie was not aware of the proceedings after the transfer of the suit could not be believed and that it was apparent that he knew of the proceedings m the court of the 4th Additional District Judge. The order sheet dated 13th February, 1985, indicates that when the case was called out the parties along with their counsel were present. The order sheet dated 4th April, 1985, also indicates that when the case was called out both the parties were present. Similarly the order sheet date 8th April, 1985, also indicates that on the case being called out both the parties were present. The arguments however could not be heard on these dates on one ground or the other. The order sheet dated 4th April, 1985, also indicates that when the case was called out both the parties were present. Similarly the order sheet date 8th April, 1985, also indicates that on the case being called out both the parties were present. The arguments however could not be heard on these dates on one ground or the other. The affidavit which was filed in support of the application for setting aside the ex-prate decree, even though the said application is stated to have been filed after getting the record inspected, does not contain an averment that on these three dates, namely, 13th February, 1985, 4th April, 1985 and 8th April, 1985, neither the Defendant applicant nor his counsel was present. Only a technical plea has been raised that no information was sent about the dates fixed after the transfer of the suit and that the counsel for the applicant had not signed the order sheet. In the absence of a clear assertion in the affidavit that on these three dates neither the applicant nor his counsel was actually present, there seems to be no reason to disbelieve the factual statement made in the order sheet of these three dates referred to above. Moreover, the application for setting aside the ex prate decree was dismissed not only on this ground but also on another ground, namely that on the applicant's own case the file of the suit was inspected on 27th May, 1985 but the application for setting aside the ex prate decree was filed on 7th August, 1985, which was highly belated. No reason whatsoever was given for this inordinate delay except that au application for certified copy of the judgment and decree has been made by the applicant and the certified copies were received by him on 22nd July, 1985. The date of knowledge of the ex prate decree would be the date on which the inspection of the record was made, namely, 27th May, 1985, inasmuch as it was this date on which the applicant positively came to know that the suit had been decreed ex prate. For making an application to set aside the ex prate decree a certified copy of the judgment was not needed. For making an application to set aside the ex prate decree a certified copy of the judgment was not needed. Moreover on the applicant's own case even the certified copy of tire judgment was received by him on 22nd July, 1985, and no cause was shown as to why the application was not even then made till 7ih August, 1985. The view taken by the court below that the application for setting aside the ex prate decree was barred by limitation also, therefore, is well founded in a much as no sufficient cause apparently had been made out for the delay, at any rate, after 27th May, 1985. For these reasons it is not possible to take the view that the order dated 8th August, 1985, dismissing the application to set aside the ex prate decree suffers from any such error which may justify interference in the present civil revision. I am inclined to agree with the view taken by the Court below in the order dated 8th August, 1985, that the circumstances of the case indicated that the Defendant had been adopting delaying tactics. 6. Coming to Civil Revision No. 494 of 1985 it may be pointed out that the court below has recorded a categorical finding that the rate of rent was Rs. 300/- per month as asserted by the Plaintiff-opposite party and not Rs. 150/-per month as asserted by the Defendant-applicant. In arriving at this finding the court below has placed reliance on the statement of Satya Pal PW 1 who was the son of the opposite party and on certain counter-foils of receipts signed by the applicant indicating that the rate of rent was Rs. 300/- per month. Satya Pal in his deposition categorically stated that the applicant was the tenant on an agreed rent of Rs. 300/- per month and that he paid rent at the said rate and signed the counter-foils relied on by the opposite party. The applicant denied his signature on the counter-foils. Both the parties produced expert evidence. The court below believed the statement of the expert produced on behalf of the opposite party and disbelieved the statement of the expert produced by the applicant. The court below also disbelieved the statement of the applicant firstly, on the ground that the counter-foils signed by him belied his assertion that the rate of rent was Rs. The court below believed the statement of the expert produced on behalf of the opposite party and disbelieved the statement of the expert produced by the applicant. The court below also disbelieved the statement of the applicant firstly, on the ground that the counter-foils signed by him belied his assertion that the rate of rent was Rs. 150/- per month only and not Rs. 300/- per month and secondly, because even though in his cross-examination the Defendant clearly admitted that he maintained account book of his shop and noted therein the income and expenditure he did not file the account book and kept it back. According to the court below from the conduct of the applicant a presumption could legitimately be raised that had the account book been produced the same would have belied the case of the applicant in regard to the rate of rent. No exception can be taken to this view. In Hiralal and Others Vs. Badkulal and Others, AIR 1953 SC 225 it was held that the Defendant who was in possession of account books kept by him and from which the balance could be ascertained should produce them before the court. He cannot be heard to say relying on the abstract doctrine of onus of proof, that it was no part of his duty to produce them unless he was called upon to do so. In Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, AIR 1964 SC 136 the same principle was reiterated and it was held that if all relevant documents admitted to have been in existence were not placed before the court by the party concerned adverse inference has to be drawn against that party. In my opinion the finding of the court below in regard to the rate of rent is a pure finding of fact based on appraisal of evidence and does not call for any interference in the present revision. 7. At this place it may be pointed out that in regard to the opinion of handwriting expert it was urged by counsel for the applicant that such an opinion was not conclusive and no decree could be passed merely on the basis of such an opinion. Reliance was placed on Fakhruddin v. State of M.P. AIR 1967 SC 1326 , Smt. Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma and Others, AIR 1973 SC 1346 , Ram Narain Vs. Reliance was placed on Fakhruddin v. State of M.P. AIR 1967 SC 1326 , Smt. Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma and Others, AIR 1973 SC 1346 , Ram Narain Vs. State of Uttar Pradesh, AIR 1973 SC 2200 and Altaf Hussain Vs. Nasreen Zahra, AIR 1978 All 515 . No exception can be taken to the view that opinion of a handwriting expert is not conclusive and no decision can be based merely on that opinion and that there must be some independent evidence or cogent circumstantial evidence on the point. In Ram Narain's case (Supra) it was held by the Supreme Court that opinion of an expert is worthy of acceptance if there is internal or external evidence relating to the writing in question supporting the expert's view. In the instant case, as seen above, the finding in regard to the rate of rent is not based merely or entirely on the basis of the opinion of the expert but in, this connection the court below has relied on the deposition of Satya Pal PW 1 who has specifically stated that the agreed rent between the parties was Rs. 300/-per month, that the Defendant had paid rent at that rate and that he had signed the counter-foils relied on by the opposite party. Moreover the court below has also relied on the conduct of the applicant in not producing his account book which was again a circumstance against the applicant. 8. Counsel for the applicant in this connection urged that had the Defendant been present on 10th April, 1985, when arguments were heard the necessary account book could have been produced by the applicant on that date in reply to the argument of the Plaintiff's counsel and on account of his absence on that date the applicant could not avail of this opportunity. I find it difficult to agree with this submission firstly, in view of the findings of the court below while dismissing the application for setting aside the ex prate decree, it is apparent that the applicant was aware of the proceedings before the transferee court and had even appeared on three dates and if on 10th April, 1985, he did not appear for reasons known to him he was himself to blame for his absence on that date. Secondly, as already indicated above evidence both oral and documentary, had been closed by the parties on 18th November, 1982. It had already been elicited before that date in the cross-examination of the applicant that he was maintaining account book containing the income and expenditure. This account book would have certainly indicated, if the applicant's case was correct, that the rate of rent was Rs. 150/- and not Rs. 300/- per month. Even so, it was not produced either before the parties closed their evidence or even thereafter. The date of argument is not the point of time of producing evidence in reply to the arguments that may be addressed on behalf of the other party. Relying on Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, AIR 1981 SC 2085 it was also urged by counsel for the applicant that mere proof of the signature of the applicant on the counter-foils of receipts by the handwriting expert would not tantamount to proof of the contents thereof namely that rent had been paid at the rate of Rs. 300/- per month and that for proving the contents other evidence was necessary. No exception can be taken to this proposition of law but it in no way advances the case of the applicant inasmuch as the contents of the counter-foils have been proved by Satya Pal PW 1 as already indicated earlier. 9. The findings that the applicant had not paid the arrears of rent notwithstanding the service of notice of demand on him is again a finding of fact based on appraisal of evidence. In recording the said finding the court below has inter alia relied on the circumstance that is was a case where receipts were being issued by the opposite party and signature of the applicant were being obtained on the counter-foils. The court below has pointed out that if any payment of rent had been made by the applicant he would have in the normal course been granted receipts but no such receipts had been filed by him. The court below has also on the circumstances of this case believed the statement of Satya Pal PW 1 and disbelieved the applicant. The finding on this point also like the finding in regard to the rate of rent does not suffer from any such error which may justify interference in the present revision. 10. The court below has also on the circumstances of this case believed the statement of Satya Pal PW 1 and disbelieved the applicant. The finding on this point also like the finding in regard to the rate of rent does not suffer from any such error which may justify interference in the present revision. 10. As regards the plea that the notice u/s 106 of the Transfer of Property Act was illegal the court below has pointed out that only a vague allegation was made to this effect in the written statement and that a perusal of the said notice indicated that there was no illegality or invalidity in the said notice. Nothing has been brought to my notice also which may indicate that the notice u/s 106 of the Transfer of Property Act was illegal. 11. As regards the plea that the applicant was entitled to the benefit of Section 20(4) of the Act it may be pointed out that on his own case the applicant had made deposits contemplated by Order 15 Rule 5 CPC at the rate of Rs. 150/- per month which according to the applicant was the rate of rent and not at the rate of Rs. 300/- per month. In this connection it will be useful to reproduce Section 20(4) of the Act. 150/- per month which according to the applicant was the rate of rent and not at the rate of Rs. 300/- per month. In this connection it will be useful to reproduce Section 20(4) of the Act. It reads : (4) In any suit for eviction on the ground mentioned in Clause (a) of Sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages fop use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting there from any amount already deposited by the tenant under Sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground: Provided that nothing in this Sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. Explanation: For the purposes in this Sub-section (a) the expression " first hearing " means the first date for any step or proceeding mentioned in the summons served on the Defendant ; (b) the expression " cost of the suit " includes one-half of the amount of counsel's fee taxable for a contested suit. The words used in Section 20(4) are " the entire amount of rent and damages for use and occupation of the building due from him ". The words " due from him " have to be read in contradistinction with the words " admitted by him to be due " used in Order 12 Rule 5 CPC When there is a dispute between the parties in regard to the rate of rant " due "' from the tenant would be such rent which if actually payable by him and not what the parties assert. If there is a dispute in this behalf, ultimately the question as to what is the actual of rent payable would have to be decided by the court. 12. In Lakshmi Narain Sharma v. rjun Deo Dhawan 1981 AWC 609 a similar question came up for consideration before me and in that case it was held: If in regard to a particular item mentioned in Section 20(4) there was a dispute, it was open to the tenant to deposit such amount which according to him was due from him and not necessarily the amount claimed by the landlord. In respect of such a deposit if ultimately it was found that the defense of the tenant was correct, he will be entitled notwithstanding the fact that the deposit made by him was not of the whole amount claimed by the landlord, because the amount deposited by him would in view of the finding recorded in the suit represent the amount due from the tenant. If on the other hand, his defense is found to be false and the amount claimed by the landlord is found to be correct, v. e tenant would be denied the benefit of Sub-section (4) notwithstanding the deposit of the lesser amount which he may have made u/s 20(4) of the Act. 13. Counsel for the applicant then urged that the words " due from him " used in Section 20(4) of the Act should be interpreted to mean "the entire amount admitted by him to be due " as used in Order 15 Rule 5 CPC as inserted by the State of Uttar Pradesh by U.P. Act 57 of 1976. In this connection it was brought to my notice that in Sub-rule (1) of Rule 5 Order 15 even though the words " entire amount admitted by him to be due " have been used with reference to the deposit to be made on or before the first hearing of the suit the word " amount due " only have been used with reference to the monthly amount to be deposited throughout the continuation of the suit within a week from the date of its accrual. On its basis it was urged that since the words " amount due " subsequently used in Sub-rule (1) of Rule 5 of Order 15 CPC mean the monthly amount admitted by the tenant to be due the same meaning should be assigned to the words " amount due " in Section 20(4) of the Act also. I find it difficult to agree with this submission in view of the plain language used in Section 2(4) of the Act. Without expressing any final opinion on the point as to whether the words " amount due '' used in Order 15 Rule 5 CPC with reference to monthly amount to be regularly deposited throughout the continuation of the suit mean the amount actually payable and due or the amount admitted by the tenant to be due it may be pointed out that since the words " amount due " have been used in Sub-rule (1) of Rule 5 of Order 15 CPC subsequent to the words " amount admitted by him to be due " it may be possible to argue that the words " amount due " have to be interpreted etudes generic so as to convey the same meaning as the words " amount admitted by him to be due " but the principle of etudes generic can by no stretch of imagination be applied to Section 20(4) of the Act inasmuch as it no where uses the words " amount admitted by him to be due " but insists on deposit of the entire amount of rent and damages due from the tenant. Even otherwise it is not possible to accept the submission made by counsel for the applicant in this behalf. The object of Order 15 Rule 5 CPC is to save the defense of the tenant frolic being struck off and in this connection the legislature m its wisdom may have thought fit to require the tenant to deposit only such amount as was admitted by him to be due. The purpose of Section 20(4), however, is entirely different. The deposit made Under Sub-section (4) entitles the tenant to an order relieving him against his liability for eviction on the ground mentioned in Clause (a) of Sub-section (2) of Section 20 of the Act. The purpose of Section 20(4), however, is entirely different. The deposit made Under Sub-section (4) entitles the tenant to an order relieving him against his liability for eviction on the ground mentioned in Clause (a) of Sub-section (2) of Section 20 of the Act. This sub-clause contemplates that a tenant is liable to be evicted if he is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him a notice of demand. It is settled law that the failure to pay the arrears of rent contemplated by Clause (a) of Sub-section (2) of Section 20 of the Act means failure to pay the entire amount of arrears of rent actually due and payable by the tenant, It is again a settled law that even if a portion of the entire arrears of rent which is actually due and payable by the tenant is tendered to the landlord within one month from the date of service of notice of demand the tenant shall still be a defaulter in payment of rent and liable to eviction. It is this right of the landlord to have the tenant evicted for his failure to pay the entire amount of arrears of rent due and payable by the tenant within one month of the service of notice of demand which is taken away by the statutory provision contained in Section 20(4) of the Act if the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages due from him. Since on compliance of the requirements of Section 20(4) the tenant will be entitled to an order relieving him against his liability for eviction on the ground that he has failed to pay the arrears of rent to the landlord within on month of the date of service upon him of a notice of demand, it is apparent that the words " amount of rent '' used in Section 20(4) have to be given the same interpretation as to the words " arrears of rent " used in Clause (a) of Sub-section (2) of Section 20. If part payment by the tenant of the arrears of rent due within one month from the date of service upon him of a notice of demand will not absolve the tenant from being defaulter within the meaning of Clause (a) of Sub-section (2) of Section 20 of the Act such part payment obviously cannot entitle him to an order u/s 20(4) of the Act relieving him against his liability for eviction on the ground that he was a defaulter in payment of rent within the meaning of Clause (a) of Sub-section (2) of Section 20 of the Act. In the instant case the court below has found that the applicant had not at all deposited the rent for the period between 1st July, 1979 to 31st August, 1980 and that the rent even for the period from September, 1980, onwards had been deposited at the rate of Rs. 150/- per month only and not at the rate of Rs. 300/- per month which has been found to be the rate of rent agreed upon between the parties. In this view of the matter the applicant was apparently not entitled to the benefit of Section 20(4) of the Act and no exception can be taken to the finding of the court below in this behalf. 14. It was then urged by counsel for the applicant relying on Order 9 Rule 6 (a) CPC that no 10th April, 1985, when the applicant was absent the court below should have only passed an order that the suit be heard ex prate against the applicant and fixed another date for hearing of the arguments and since the court below heard arguments on 10th April, 1985 itself it acted illegally. I find it difficult to agree with this submission either. No such requirement is to be found in Order Rule 6(a) CPC On the plain language of the said provision it was open to the court below to hear arguments even on 10th April, 1985, which was the date fixed for this purpose, ex prate. 15. Lastly, it was urged that since the Act was enacted for the benefit of tenants, even if the applicant who was a tenant had failed o appear on 10th April, 1985, the date fixed for arguments without sufficient cause yet the court below should not have decreed the suit ex prate on that date. 15. Lastly, it was urged that since the Act was enacted for the benefit of tenants, even if the applicant who was a tenant had failed o appear on 10th April, 1985, the date fixed for arguments without sufficient cause yet the court below should not have decreed the suit ex prate on that date. Suffice it to say so far as this submission is concerned that by no stretch of image-nation any provision contained in the Act can be stretched to such an extreme limit. 16. No other point has been pressed. 17. In the result I find no merit in either of these two revisions. They are accordingly dismissed. The applicant is, however, granted one month's time to vacate the shop in question. In the circumstances of the case there shall be no order as to costs.