Kashi Nath Gupta v. Devi Lal — 1986 DIGILAW 762 (ALL)

JUDGMENT V.K. Mehrotra, J. - On March 6, 1986 the I Addl. District Judge, Gorakhpur decided S.C.C. suit No. 4 of 1980. He decreed the suit as Judge, Small Causes. The present Revision u/s 25 of the Provincial small Cause Courts Act assails the decree. The applicant is Kashi Nath Gupta, Defendant. The suit was filed by Devi Lal who is the sole Plaintiff-opposite party. 2. The case of Devi Lal was that the monthly rate of rent of the house was Rs. 150/- apart from the amount of water tax. This rent and water tax is due from Kashi Nath Gupta with effect from the period beginning January 1, 1977. It was not paid in spite of demand. On April 15, 1980 a combined notice of demand and termination of tenancy u/s 106 of the Transfer of Property Act was sent to Kashi Nath Gupta. It was refused by him on April 26, 1980 In addition, the Plaintiff complained that the premises were let out to Kashi Nath Gupta for residential purpose but he put it to inconsistent user by carrying on timber business in it. On both the grounds of default and inconsistent user the decree for adjustment was sought. A claim was also made for realization of the amount of rent etc. in arrears. 3. Kashi Nath Gupta denied that the rate of rent is 150/- per month. According to him, it was only Rs. 35/- including tax. He alleged that the rent had been paid at the rate due. The rent for the month of January 1979 was tendered to the landlord Devi Lal in February, 1979 but was refused by him. It was then remitted thrice by money order which was also refused whereupon it was deposited u/s 30 of U.P. Act 13 of 1972. The premises had been let out both for residential purpose and for carrying on business of timber. That business was being carried on in the premises since the inception of tenancy. The Plaintiff, according to the case of Kashi Nath, Defendant, was not entitled to the decree sought by him on either of the two grounds of default or inconsistent user of the premises. The suit was also liable to fail because the notice was neither valid nor served on him and was, in any case, waived by the Plaintiff himself. 4. The trial Judge framed seven issues. The suit was also liable to fail because the notice was neither valid nor served on him and was, in any case, waived by the Plaintiff himself. 4. The trial Judge framed seven issues. No issue about the alleged waiver of the notice was framed nor asked for by the Defendant and, in fact, was not pressed before the trial Judge at all on his behalf as is clear from the recital to that effect in the judgment under challenge. The trial Judge, to use his own words, found that 'the defendant pleaded in paragraph 5 (in the additional written statement) that the notice has been waived but no issue has been framed by my learned predecessor nor this issue was pressed before me during the trial. Nothing was urged from the side of the Defendant as to how the notice has been waived No conduct, express or implied, on the part of the landlord has been alleged or proved which may indicate that he treated the lease as subsisting even after serving the notice of demand and eviction and filing the suit. Consequently, on merits also the plea of waiver has not been established 5. The trial Judge, after detailed discussion of the evidence found, in issue No. 5, that the notice was sufficiently served by refusal upon the Defendant. Under issue No. 4, he found the notice to be valid. He said, amongst other things, that 'the learned Counsel for the Defendant even at the time of the arguments was unable to point out any invalidity in the notice 'The question of default was considered by the learned Judge under issue No. 1. Under issue No. 3 was considered the question of user of the demised premises by the Defendant for a purpose inconsistent with the one for which the lease was granted. The finding recorded by the learned Judge was that the Defendant had used the premises in dispute for inconsistent purpose. 6. When the Revision was presented in this Court by Sri Tej Pratap Singh, Advocate, on behalf of the tenant, the landlord put in appearance through Sri Tarun Verma, Advocate. Affidavits were exchanged between the parties and on the request made by the counsel; record of the suit was also summoned through special messenger. 6. When the Revision was presented in this Court by Sri Tej Pratap Singh, Advocate, on behalf of the tenant, the landlord put in appearance through Sri Tarun Verma, Advocate. Affidavits were exchanged between the parties and on the request made by the counsel; record of the suit was also summoned through special messenger. The case was heard finally at the joint request of the counsel for the parties at the stage of its admission hearing itself. 7. The first submission which Sri Tej Pratap Singh made on behalf of the tenant before me was that the finding recorded by the trial Judge that the tenant was in default in the mutter of payment of rent was liable to be set aside as it was founded upon an incorrect conclusion on the part of the trial Judge that the rate of monthly rent was Rs. 150/- and not Rs. 35/-. The finding, according to Sri Teniralap Singh, lies been recorded by ignoring documentary evidence on record and in erroneously accepting the explanation given by the Plaintiff in respect of an admission about the rate of rent being Rs. 35/- per month, made by him in proceedings u/s 30 of the Act. The oral evidence adduced on behalf of the Plaintiff-landlord did not deserve, according to the submission of Sri Singh, to be accepted in preference to the evidence adduced on behalf of the tenant. 8. The admitted case of the parties is that there is no document evidencing the rate of rent agreed upon between the parties for the demised premises. The question of rent, therefore, depended upon other evidence. The landlord appeared in the witness box as PW 1. He gave out that the rent was agreed at Rs. 150/- per month in the year 1972 and that the matter had been settled in the presence of one Jagdish Prasad Jagdish Prasad also appeared in the witness box as PW 2, He supported the landlord on the question of amount of rent agreed upon between the parties. The trial Judge found that Jagdish Prasad was an independent person and accepted his testimony. In his statement Jagdish Prasad said that the tenancy had been settled in his presence between the Plaintiff and his father on the one side and the Defendant on the other side. The rate of rent was settled at Rs. The trial Judge found that Jagdish Prasad was an independent person and accepted his testimony. In his statement Jagdish Prasad said that the tenancy had been settled in his presence between the Plaintiff and his father on the one side and the Defendant on the other side. The rate of rent was settled at Rs. 150/- per month and the Defendant had given a sum of Rs. 150/- in his: presence to the father of the Plaintiff by way of advance. With reference to this statement, it was urged by Sri Singh that the trial Judge was in error in inferring from it that the settlement was with the Plaintiff and further that the statement fell short of establishing that there was an agreement between the Plaintiff and the Defendant that the rate of rent would be Rs. 150/- per month because the amount of advance had been paid to the Plaintiffs father. This submission is not acceptable for the reasons that it does not amount to establishing that the rate of rent agreed upon between the parties was not Rs. 150/- per month merely because the amount of advance was stated to have been paid to the Plaintiffs' father or because of the fact that both the Plaintiff and his father were present when the agreement took place about it. Besides, the inference to be drawn from a statement made by a witness before the Judge, Small Causes, has been left to him. The inference is not liable to challenge before this Court in the present Revision unless it can be said to be perverse in the sense that no reasonable person would draw it. It is difficult to subscribe to the view that the inference from the aforesaid statement that the rate of rent agreed upon between the parties for the demised premises was Rs. 150/- per month was perverse. 9. It is noticeable that the statement contained in paragraph 2 of the plaint that the Defendant was a tenant of the Plaintiff in the demised premises on a monthly rent of Rs. 150/- apart from water tax, has been disputed in paragraph 2 only to the extent of the rate of rent. The undoubted case of the Defendant was that he was the tenant of the Plaintiff Devi Lal and not of his father or of Devi Lal and his father both. 10. 150/- apart from water tax, has been disputed in paragraph 2 only to the extent of the rate of rent. The undoubted case of the Defendant was that he was the tenant of the Plaintiff Devi Lal and not of his father or of Devi Lal and his father both. 10. It was also contended by Sri Singh that in his statement before the Court, the Defendant had asserted that in the upper portion of the house one Satya Dev was a tenant on monthly rent of Rs. 35/-. This statement had not been questioned on behalf of the landlord in cross-examination at all. As such, the inference that should have been drawn by the trial Judge should have been that the ground floor accommodation, which was in the tenancy of the Defendant, would have been given out at the same rent. The trial Judge, according to the submission, overlooked this statement. Sri Singh placed the statement of the Defendant in its entirety but failed to point out therein any statement to the effect that the accommodation which was in the tenancy of Satya Deo was similar to the one which was in the tenancy of the Defendant. Another circumstance which, according to Sri Singh, had been lost sight of by the trial Judge was that the Defendant had brought on record the municipal assessment of the premises which shows that the rate of rent was Rs. 35/- per month. The submission overlooks the question in issue between the parties. The question was as to what the rent was agreed upon by them in regard to the premise which was in the tenancy of the Defendant and not as to what was the reasonable rent thereof. The non-consideration of the amount of assessment or of the fact that in a portion of the same building there was another tenant paying a rent of Rs. 35/- per month, could not be said to be non-consideration by the trial Judge of relevant piece of evidence so as to vitiate the finding on the question of what was the rent agreed upon between the parties. 11. In regard to the agreed rate of rent, what was urged with some emphasis by Sri Singh was the fact that an admission had been made by the Plaintiff-landlord about the rate of rent being Rs. 35/- per month in the proceedings u/s 30 of the Act. 11. In regard to the agreed rate of rent, what was urged with some emphasis by Sri Singh was the fact that an admission had been made by the Plaintiff-landlord about the rate of rent being Rs. 35/- per month in the proceedings u/s 30 of the Act. That admission is Ex. A 13 on the record of the suit. It is quoted in the judgment of the trial Judge and is m these words Service of notice on O.P. sufficient. O.P. is ready to accept the rental money in cash. Hence applicant is hereby directed to pay in cash to O.P. in future. 12. Ext. A-2 is a Copy of the application for deposit of rent u/s 30 made by Defendant Kashi Nath in the court of Munsif, Gorakhpur in Misc. Case No. 96 of 1970. This application is in form E referred to in Rule 21 of the Rules, framed under U.P. Act 13 of 1972. Item No. 2 in this Form is ' rate of rent '. The entry against it, which was made on behalf of the tenant, was Rs. 35/- per month. At item No. 3 is mentioned the total amount deposited being Rs 210/- for the period January 1979 to June 1979 as mentioned at item No. 4. Item No. 8 relates to the circumstances in which the rent was being deposited and the entry against it is that the rent for the period January 1979 to March 1979 had been sent through post but was refused so that the amount was being deposited u/s 30(1) of the Act. In response to the notice which was served upon the landlord (Devi Lal, the Plaintiff) appearance was put in by him and a statement made before the court that O. P. (landlord) was prepared to accept the rent in cash. This statement, according to the landlord, had been made by the junior counsel without any authority and should not be treated as an admission on the part of the landlord about the rate of rent. An application was, therefore, made OD behalf of the landlord in Misc. This statement, according to the landlord, had been made by the junior counsel without any authority and should not be treated as an admission on the part of the landlord about the rate of rent. An application was, therefore, made OD behalf of the landlord in Misc. Case No. 96 of 1970 u/s 30 before the learned Munsif for, what was described as, a review of the order made by the learned Munsif on September 20, 1980, to the effect that the landlord had shown his willingness to accept the rent in cash and that the applicant (tenant) was, therefore, directed to pay the rent in cash. On November 30, 1980, the learned Munsif refused to review the order. Civil Revision No. 225 of 1980 was then filed by Plaintiff Devi Lal against the order of November 30, 1980. This Revision was disposed of by the 3rd Addl. District Judge, Gorakhpur on November 5, 1981. A copy of that judgment is Ext, 5 on the record of the case. The learned Judge accepted the submission made on behalf of the tenant that the order was not revisable. He said that on merits too he found no reason to interfere with it as the admission made by the landlord could be explained by him in the suit pending in the court of Judge, Small Cause namely, the suit out of which the present revision arises. 13. Before the trial Judge, the explanation which was offered by the Plaintiff was that Sri Krishna Mohan Shukla, Advocate, the junior of the counsel who was appearing for the landlord in the misc. case, could not have consented to the acceptance of rent in cash on behalf of the Plaintiff without any authority. This explanation was accepted by the trial Judge as sufficient explanation for the fact that there was no conscious admission by the Plaintiff of the rate of rent being Rs. 35/- per month. During the course of his arguments in the present revision in this Court, a prayer was made by Sri Singh that the record of Misc. Case no 96 of 1979 u/s 30 be summoned to prove that the willingness to accept the rent in cash had not been, expressed by the junior of the counsel for the Plaintiff before the learned Munsif but by the Plaintiff himself. Case no 96 of 1979 u/s 30 be summoned to prove that the willingness to accept the rent in cash had not been, expressed by the junior of the counsel for the Plaintiff before the learned Munsif but by the Plaintiff himself. Sri Tarun Verma, appearing for the landlord, objected to the hearing of the case being deferred further for the summoning of that record and stated that even if it be assumed that the statement had been made by the Plaintiff himself, it would not amount, in law, to an admission on the part of the Plaintiff that the agreed rent of the premises was Rs. 35/- per month. On this objection, the hearing proceeded without the record of Misc. Case No. 96 of 1979 being summoned. 14. Proceedings u/s 30 of U.P. Act 13 of 1972 are of summary nature. The tenant has been given a right, in the circumstances mentioned in Section 30, to make the deposit of the amount of rent in the court of the Munsif having jurisdiction the provisions of Section 30, in so far as they are material, read thus: 30. Deposit of rent in court in certain circumstances(1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refused to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. (2).... (3) The deposit referred to in Sub-section (1), or Sub-section (2) shall be made in the court of the Munsif having jurisdiction. (4) On any deposit being made under Sub-Section 1, the court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf. (5).... (4) On any deposit being made under Sub-Section 1, the court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf. (5).... (6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favor it is deposited in the case referred to in Sub-section (1) or to the landlord in the case referred to in Sub-section (2). 15. Dealing with the nature of the proceedings u/s 30 of the Act this Court said in Girdhari Lal Mehta v. District Judge, Varanasi, 1984 (1) ARC 126 that Sub-section (1) of Section 30 permits deposits to be made in the manner prescribed details of which are mentioned in Rule 21. The very nature of the provision leaves hardly any room for doubt that it is more a matter of form than substance. Convenience and facility appear to be its basis. Details of building, rent, landlord, reason for deposit etc. are required to be mentioned, with that end in view. The only notice contemplated Under Sub-section (4) is to permit the landlord to withdraw the amount deposited. This notice is subsequent to deposit being made Under Sub-section (1) and does not contemplate any adjudication or decision before any deposit is accepted from a person claiming to be a tenant. Before accepting the deposit, the Munsif is conferred with the jurisdiction under Sub-section (3) of Section 30 to accept the rent and he is to be prima facie satisfied but the satisfaction is only of the fact that the person who made the application is a person claiming to be a tenant. The law does not require anything further. It does not contemplate adjudication. 16. Section 7C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, (U.P. Act III of 1947) also contained a provision for deposit of rent by the tenant in certain circumstances. Those provisions were akin to Section 30 of U.P. Act 13 of 1972. Dealing with that provision, it was said by this Court in Shanti Devi v. Chandra Mukhi 1967 ALJ 788 that when an application is filed u/s 7C there is no dispute to be decided. Those provisions were akin to Section 30 of U.P. Act 13 of 1972. Dealing with that provision, it was said by this Court in Shanti Devi v. Chandra Mukhi 1967 ALJ 788 that when an application is filed u/s 7C there is no dispute to be decided. The notice sent to the landlord was with the purpose of informing him that a deposit had been made and he may withdraw it on an application to the court. The court became a sort of custodian of any deposit made u/s 7C but it did not have to decide whether any dispute or doubt had arisen as to -the person entitled to receive the rent. That was a matter left for decision of the appropriate court if and when the tenant claimed that he made no default in payment of rent because he had deposited it u/s 7C. The court hearing the suit for adjustment was a competent court, irrespective of any order passed in the proceedings u/s 7C, to decide whether the tenant was entitled to make the deposit u/s 7C. 17. In Haji Abdul Karim v. Mohd. Ismail 1978 UP RCC 691 again this Court said that the whole scheme of Section 7C was inconsistent with any adjudication of the rights of the parties. Learned Munsif was not required to determine the rights and obligations of the landlord and the tenant in those proceedings. All that he had to do, on deposit of rent u/s 7C was to issue a notice to the landlord informing him that such a deposit had been made. The deposit made u/s 7C was by itself a neutral act and acquired its legal completion only when the rights of the parties were later determined in appropriate proceedings. The deposit was without prejudice to the rights of the parties. 18. In Janardan Swarup v. III Addl. District Judge, Muzaffarnagar 1983 (1) ARC 820 the principle reiterated was that the question whether the deposit u/s 7C had been made validly will be gone into again in the suit brought for adjustment on the basis of default. 19. In Mohd. Bashir Vs. Azizul Qadar, AIR 1967 All 1 a Full Bench of this Court dealt with the question of the effect of a deposit made by a tenant u/s 7C of the U.P. Act III of 1947 on the refusal of the landlord. 19. In Mohd. Bashir Vs. Azizul Qadar, AIR 1967 All 1 a Full Bench of this Court dealt with the question of the effect of a deposit made by a tenant u/s 7C of the U.P. Act III of 1947 on the refusal of the landlord. It was laid down that the amount validly deposited u/s 7C by the tenant is to be deemed to have been paid to the landlord on the date on which the deposit is made. 20. In Chhotey alias Chhota v. Gulzari Lal 1982 (2) ARC 203, an observation was made that an order u/s 30 of U.P. Act 13 of 1972 would be binding unless it is set aside in accordance with law. In that case, in which the tenant, who was Petitioner in this Court in a writ petition Under Article 226 of the Constitution, had made a deposit of rent in proceedings u/s 30. The proceedings under those provisions were decided ex parte in which Ram Kali was shown to be landlord. The plea which was taken before this Court was that any payment deemed to have been made to Smt. Ram Kali on account of deposit u/s 30 would not absolve the writ Petitioner from the charge of default because he had not paid the rent to the Respondent Gulzari Lal, who was the landlord. This Court negative the plea of default by observing that proceedings u/s 30, though decided ex-prate, were not got re-opened by the Respondent who had remedy of getting the ex-prate order set aside in accordance with Section 34 and Rules 22 and 32 and contest the proceedings u/s 30, if he had no prior knowledge. 21. The revision which had been filed u/s 25 of the Provincial Small Cause Courts Act by the tenant had been dismissed by the court below without going into the merits of the decree of adjustment passed against Chhotey Lal on the ground of default. 21. The revision which had been filed u/s 25 of the Provincial Small Cause Courts Act by the tenant had been dismissed by the court below without going into the merits of the decree of adjustment passed against Chhotey Lal on the ground of default. This Court took the view that, inasmuch as, Section 25 provides that a revision lay to the court for examining whether the judgment of the Judge, Small Causes, was according to law, the revisional court had to examine the judgment of the trial court in accordance with that Section and decide the revision on merits and could not dismiss it in default On this view, the petition was allowed and the order dismissing the revision in default was quashed. The revisional court was directed to decide the case on merits after notice to the parties. Obviously, this Court was not called upon to go into the question whether the plea about default was validly upheld by the trial. Judge or not. Observa- ions in regard to the effect of ex prate proceedings u/s 30 were clearly in the nature of an obiter. 22. The Full Bench decision in the case of Mohd. Bashir and the decision in the case of Chhotey Lai, upon which great reliance has been placed by Sri Singh, do not lend support to his submission in the present case. Sri Tarun Verma is plainly right in his submission that the only effect of the willingness on the part of the landlord in the proceedings u/s 30 to accept the rent in cash, was that the amount, said to be the amount of rent by the tenant, need not be deposited in the court of the learned Munsif but be paid in cash. Consequently, even if it be assumed that it was the Plaintiff himself who expressed that willingness to accept the rental amount in cash before the learned Munsif, the said willingness could not be treated to be an admission on his part that Rs. 35/- was the rent of the premises agreed upon between the parties. The nature of the proceeding u/s 30 being summary in character, and in which there is no adjudication of any rights of the parties, a statement made therein cannot be kept at the high pedestal of an admission of the rate of rent of Rs. 35/- by the landlord. The nature of the proceeding u/s 30 being summary in character, and in which there is no adjudication of any rights of the parties, a statement made therein cannot be kept at the high pedestal of an admission of the rate of rent of Rs. 35/- by the landlord. Like other questions, the question of rate of rent was determinable in proceedings pending before the trial Judge who was dealing with the suit for adjustment, and who had to decide the question of rate of agreed rent on the basis of the evidence brought before him. 23. Thus viewed, it cannot be said that the willingness of the landlord to accept the rental amount of Rs, 35/- per month (as given out by the tenant in proceedings u/s 30 of the Act was a conclusive piece of evidence on that question. 24. The fact that the admission said to have been made by the landlord was before the trial Judge when he was appreciating the evidence is not in doubt. The learned Judge, on the evidence on record before him, came to the conclusion that the admission was made by a junior to the counsel for the Plaintiff without authority from the Plaintiff. This conclusion cannot be said to be such to which no reasonable person could arrive run the material on the record of the suit. The circumstances that the Plaintiff landlord was present before the learned Munsif when this statement was made, which has been pointed out to me by Sri T.P. Singh from the statement of Defendant Kashi Nath in his cross-examination, cannot by itself be an inference, as is attempted by Sri Singh, that the willingness was expressed by him personally or that the junior counsel was authorized by him to express it. That statement in the cross-examination of the Defendant is only to the effect that at the time of the order u/s 30, the Plaintiff was present in court. 25. The findings recorded by the trial Judge in regard to the default Committed by the tenant applicant are based upon the evidence on record. It is not possible for this Court, while dealing with the matter in a revision u/s 25 of the Provincial Small Cause Courts Act, to go into its correctness. 25. The findings recorded by the trial Judge in regard to the default Committed by the tenant applicant are based upon the evidence on record. It is not possible for this Court, while dealing with the matter in a revision u/s 25 of the Provincial Small Cause Courts Act, to go into its correctness. As held by a Division Bench of this Court in Laxmi Kishore v. Har Prasad Shukla 1979 AWC 746 the court of revision u/s 25 of the Provincial Small Cause Courts Act has to satisfy itself that the trial court decree or order was according to law and that a decision on facts was also a decision according to law. The rule laid down by the Division Bench leaves no scope for an argument of the nature made by Sri Singh that the conclusion of the trial Judge that there was a default on the part of the tenant in the instant case, was liable to be set aside. More so, because the decision was founded upon consideration of relevant evidence on record. Since the decree of the trial Judge is liable to be upheld on the view that the finding recorded by him is not liable to be interfered with, it is not necessary for me to consider the other grounds canvassed before me, namely, whether the tenant applicant was liable to be ejected from the demised premises for having put it to user inconsistent with that for which he was inducted into it as a tenant. 26. The question that there was waiver on the part of the landlord of the notice given by him was not canvassed before the trial Judge. In this Court too, the plea cannot be said to be sustainable because of the fact that it was found that no willingness to accept the agreed rent was expressed by or on behalf of the landlord after the termination of the tenancy by him, inter alias, on the ground of default by the tenant. Consequently, the decision of this Court in Krishna Kumar Kedia v. Deo Kumar Jain 1982(2) ARC 361 upon which reliance has been placed by Sri Singh is of no avail to him. 27. In conclusion, the revision fails and is dismissed with costs. The trial court record shall be sent back to it forthwith.