Balram v. Baikunthi Devi — 1988 DIGILAW 597 (ALL)

JUDGMENT A.P. Misra, J. 1. The present civil revision is directed as against the order dated 1st April, 1988 passed by the Judge Small Causes Court by virtue of which the plaintiff's suit for eviction and for recovery of part of rent due has been decreed. 2. The plaintiff's suit for ejectment on the ground of default with the allegation that the applicant was the tenant in the premises in dispute at the rate of Rs. 100/- per month and he was liable to pay, in addition to the said rent, the water tax and sewage tax and since he fell in arrears and did not deposit the same a notice was served on him and inspite of the notice since he did not pay, a suit for the same was filed. The case of the defendant, however, is that though he is a tenant of the premises in question but he did not commit any default. In fact, he deposited the rent under section 30 of the Rent Control and Eviction Act when the landlord himself refused to accept the rent. It was the case that initially rent was Rs. 55/- and subsequently enhancement was made from time to time on account of the increase in tax. Thus the rent of Rs. 100/- included the tax payable by him. It is the case of the defendant while depositing the rent under section 30 of the Act specific mention was made that it includes the water tax. The trial court, however, held that the rent of Rs. 100/- per month was deposited by the defendant and since it did not include the water tax and that not being deposited, default was committed by the tenant hence liable for eviction. It is against this the present revision has been preferred. The challenge made by the applicant against the impugned order are on number of grounds; firstly it has been argued that the demand made by means of notice of the arrear of rent while specifying the water tax the amount mentioned was not proportionate of the water tax leviable on the portion of disputed premises and thus notice itself is bad. I have perused the notice and also para 5 of the plaint, which specify the water tax. I have perused the notice and also para 5 of the plaint, which specify the water tax. According to notice water tax was demanded from 15th July, 1972 to 31st March, 1981 at the rate of 6-1/4% and from 1st July, 1981 to 31st July, 1985 at the rate of 12-1/2%. This calculation was made on the basis of the rent of the premises in question for Rs. 100/- which has also been recorded in the assessment. It is not in dispute in this case that the rent of the premises in question is Rs. 100/- per month but what has been disputed initially is that this Rs. 100/- includes the water tax also. I have perused the impugned judgment. 3. Before dealing the question regarding watar tax I would shortly decide the initial argument of the learned counsel for the applicant that Rs. 100/- includes the water tax also. 4. The trial court has recorded a finding that the applicant has failed to prove that Rs. 100/- which is paid inclusive of the water tax. The finding was also recorded that in view of section 7 of U. P. Act No. 13 of 1972 which speaks about the written contract between the landlord and tenant regarding payment of water tax by the tenant, the rent is due on the tenant. In fact argument was that it is not necessary that there should be a written contract under the aforesaid Act regarding payment of water tax and in the alternative it is urged that in any case the finding that Rs. 100/- is not inclusive water tax, cannot be sustained as he has not looked into other evidence on the record. Section 7 of the aforesaid Act opens with the words " subject to any contract in writing to the contrary .................. the tenant shall be liable to pay to the landlord in addition to and as part of the rent, that shall be water tax." It is not in dispute that there is no such contract in writing to the contrary and, therefore, the liability to pay water tax is on the tenant. The burden to prove about the payment of water tax is on the tenant. It is the tenant who has to prove that the rent which was paid was inclusive of water tax. The burden to prove about the payment of water tax is on the tenant. It is the tenant who has to prove that the rent which was paid was inclusive of water tax. The case of the applicant was that from time and again the rent was being enhanced only for the purpose of payment of enhanced tax-----from time to time. The applicant's case is that initially the rent of the premises in question was Rs. 55/-. It was enhanced in the year 1970 to Rs. 70/- and thereafter it was raised to Rs. 75/- per month from 1st September, 1972 and then to Rs. 85/- from 1st February, 1974 and then to Rs. 100/- from 1st June, 1977. It is on this basis the argument was raised that each increment shows that this increment in rent was on account of increase in taxes. It is not in dispute that the last increment as alleged by the applicant was since 1st June, 1977. It is in 1981 that the water tax was increased from 6-1/4% to 12-1/2%. In the present case I am concerned for the period w. e. f. 1st April 1985 to 18th October, 1985 in respect of the water tax. Thus it is for the applicant to show that aftet increase of water tax in 1981 there has been proportionate increase in the rent to include the water tax as part of the rent. Nothing has been shown even before me by the applicant to show such increase since 1st June, 1977. In view of this the finding recorded by the trial court that the applicant has failed to prove that the rent of Rs. 100/- is not inclusive of the water tax, cannot be said to be either illegal or preverse which calls for interference by this Court. 5. Coming to the point regarding water tax the case of the applicant that the payment made for the water tax in the notice and plaint was not proportionate to the portion of the premises in question as I have said above and it is not in dispute that she premises in question was let out on Rs. 100/- per month which has been recorded also in the assessment made by the local authorities. Thus calculating on the basis of the rental value of Rs. 100/- per month which has been recorded also in the assessment made by the local authorities. Thus calculating on the basis of the rental value of Rs. 100/- per month of the premises in question multiplied by 12 and calculating at the rate of 12-1/2% I find that the demand in the notice and also in the plaint is in consonance with the water tax payable for the portion in question. 6. This Court has repeatedly laid down that before any default is said to have been committed by the tenant, if the demand including the water tax is made, it is the duty of the landlord to satisfy the amount which is payable for the portion for which the notice for eviction has been made. If the payment of water tax has not been proportionate in accordance with the demand of the local authority, then such demand in the notice could be justified. It is this principle which is the foundation of the argument on behalf of the applicant in the present case. As I have found above on examination and on calculation it is clear that the demand made in the water tax for the rental period in question of the said premises has been properly apportioned and it could not be said that sush demand is either vague or is disproportionate to the water tax payable in question. Thus the argument of the learned counsel for the applicant cannot be sustained on this ground. Learned counsel for the applicant while challenging the demand of water tax and apportionment has relied on the case of Om Prakash Nigam v. Ved Prakash, 1981 ARC 675. In this case it has been held that there should be proper notice of demand water tax inclusive on the basis of the annual valuation of the building which should have been given to the tenant before instituting the suit by the landlord. It has been further held that the landlord must indicate truely and correctly, the precise, liability of the tenant with the proportion of the annual value of the entire building as determined by the municipal authorities. In that case no evidence was led by the landlord to show as to the determination of the annual letting value of the building. The facts of the present case are entirely different. It is undisputed that the rent of the building is Rs. In that case no evidence was led by the landlord to show as to the determination of the annual letting value of the building. The facts of the present case are entirely different. It is undisputed that the rent of the building is Rs. 100/- per month but the same has been recorded on the municipal record which has been produced before me and in the notice the landlord has made an admission apportioning water tax payable under the Act and thus it cannot be said that such admission is illegal. 7. Next reliance was placed on the case of Dr. Nilamber Jha v. 1st Addl. District Judge Gorakhpur, 1982 ARC 555. In this case it has been held that the water tax could be realised by the landlord from the tenant only when it is payable to the Municipality or Nagar Mahapalika and the burden to prove the water tax to be paid to the Nagar Palika and the exact amount lies on the landlord. It is in these context it has been held that if there is failure by the landlord, the tenant cannot be blamed and cannot be held liable to pay the said tax.' The principle enunciated in this case is not disputed. The question is whether in the present case the landlord has specified the amount which is the liability of the tenant for payment of water tax as already stated above. In this case the landlord has already specified the said amount proportionately to the premises in question. 8. It has further been argued on behalf of the applicant that it is only that amount which the landlord has paid, the demand could be made and since the landlord has not shown that actually he has paid that amount, he is not liable to make demand of the said amount. The argument is fallacious. The language used in section 7 of the aforesaid Act is 'liability and payment of water tax.' This liability is not dependent on the actual payment of such tax by the landlord. Similar is also the view taken in the aforesaid case of Dr. Nilamber Jha relied by the applicant where it is held that the liability of tenant to pay water tax is only when it is payable to the Municipality or Nagar Palika. Similar is also the view taken in the aforesaid case of Dr. Nilamber Jha relied by the applicant where it is held that the liability of tenant to pay water tax is only when it is payable to the Municipality or Nagar Palika. IT is not in dispute that the payment of water tax in the Municipality has been enhanced to 12-1/2% since 1981 and that having not been paid. Thus it cannot be said that the finding recorded by the trial court is erroneous which calls for interference by this Court. Finally reliance was placed on the case of Bholanath v. Vlth Addl. District Judge Allahabad, 1980 ARC 556. Reliance was placed that in this case it is held where a tenant before receipt of the notice of demand has tendered the amount, it cannot be said that he has committed default. This principle is not in dispute. In any case if total amount payable by a tenant has been tendered, by him including water tax, then no default is committed. It is not in dispute that though rent was deposited under section 30 but no water tax as is payable under the Act was deposited by him. Thus this case will not give any support to the applicant. 9. Thus I find that for the period in question the rent was deposited at the rate of Rs. 100/- per month under section 30 of the Act but no water tax was deposited by him as is payable by him and the finding recorded by the trial court to that extent cannot be said to be such which calls for interference by this Court in exercise of revisional jurisdiction. 10. Finally it has been argued that even as per calculation given by the landlord the demand of water tax for the period in question upto 18th October, 1985 could be about Rs. 337/-. 10. Finally it has been argued that even as per calculation given by the landlord the demand of water tax for the period in question upto 18th October, 1985 could be about Rs. 337/-. In the present case the court below while deciding the present suit has initially recorded a finding that since the decree could only be passed for a period of three years, from the date of the suit, therefore, the consideration and adjudication would be made for that period, It is on this basis the learned counsel for the applicant urged that the total period for the arrears of rent, water tax is to be paid is at the most for 36 months on the date of the suit. However, before such a suit could be filed under section 20 (2), a tenant has to be in arrears of not less than four months. Before a tenant could be said to have defaulted it has to be proved that the tenant had not paid water tax in the present case if the total amount is calculated, then the amount should be for a period not less than four months of the rent under the said Act. Further argument was that for calculating that period it should be confined only upto the period of 18th October, 1985 when the demand notice was made and it cannot be calculated till filing of the suit and if the payable water tax proportionate to the portion in question is calculated, it would come to about Rs. 338 which would be short of four months rent and thus no suit would lie under the said provisions. 11. Learned counsel for the respondent, on the other hand, urged that the notice given is for the larger period and the tenant having not paid those amount, mere non decree by the trial court on the ground of the earlier period having become time barred, cannot be excluded for the purpose of testing whether tenant is in default for the period of less than four months. It is argued that even if amount has become time barred, claim can already be made and the payment can be made by the tenant even for a period which is barred by time but the same cannot be enforced by law by means of decree. It is argued that even if amount has become time barred, claim can already be made and the payment can be made by the tenant even for a period which is barred by time but the same cannot be enforced by law by means of decree. It was thus argued that it cannot be said that there was any non compliance of section 20 (2) as the period mentioned in the notice and suit for which the default was made was for a period more than four months. 12. The point which has been raised by the learned counsel for the applicant in this case seems not to have been raised in this form before the court below and it is for that reason I find there is neither any adjudication nor application of mind regarding this point by the court below. Normally new question raised is not permitted to be raised for the first time in revision but since the present question which has been raised here goes to the very root of the matter as indisputedly the amount of water tax for the period for which the decree has been made, if taken up earlier as mentioned in the said notice, the amount can fall short of four months. Therefore, it is necessary for the court below to go into this question only before recording default by the applicant. Learned counsel for the applicant further urged that since he has already deposited total rent for which admission was made under section 30 before service of notice, the decree on the account by the court below is not sustainable. I find in the last portion of the judgment which has been impugned that any amount deposited by the tenant is liable to be adjusted and thus it is made clear that the amount already deposited under section 30 shall be adjusted towards decretal rent as said in the judgment. 13. Learned counsel for the respondent urged that since the case is being remanded to the court below, it should also record a finding whether apart from water tax any rent was also due or not upto 18th October, 1985. The court below is hereby directed to consider this aspect of the matter while recording a finding again. 14. 13. Learned counsel for the respondent urged that since the case is being remanded to the court below, it should also record a finding whether apart from water tax any rent was also due or not upto 18th October, 1985. The court below is hereby directed to consider this aspect of the matter while recording a finding again. 14. However, in view of the aforesaid finding, the finding of default made by the tenant cannot be sustained and is hereby set aside. The present revision is allowed and the case is remanded to the court below for deciding the question of default in the light of the observations made above giving opportunity to the learned counsel tor the parties afresh. HOWEVER, it is made clear that the court below shall not go into other question which has been decided by it and has been confirmed in this order. As the matter is pending since long time, I have no doubt that after the parties appear before the court below, the court shall decide the matter expeditiously if possible within a period of two months. Costs on parties. 15. Copy of this order may be given to the learned counsel for the applicant on payment of usual charges within 15 days. Revision allowed.