Adesh Kumar Gupta v. Kanpur Vidya Mandir Society — 1989 DIGILAW 581 (ALL)

ORDER A.N. Dikshita, J. - The Applicant has filed this revision against the judgment and decree dated 31-1-1989 passed by VI Addl. District Judge, Kanpur Nagar decreeing the suit of the plaintiff-opposite-party for ejectment, recovery of arrears of rent for the period from 1-7-1983 to 26-5-1985 and damages at the rate of Rs. 137.50 per month besides other taxes. 2. Facts encompassing the controversy are that Kanpur Viddya Mandir Society is a registerd society under the Societies Registration Act (Plaintiff No. 1). Kanpur Viddya Mandir Mahila Inter College (Plaintiff No. 2) and Kanpur Viddya Mandir Mahila Degree College (Plaintiff No. 3) are educational institutions run by the aforesaid society. These two educational institutions are recognised by the Board of High School and Intermediate Education U.P. and Kanpur University respectively. Dr. I.C. Gupta is the Secretary and Manager of the plaintiffs. 3. These three plaintiffs filed a suit against the applicant alleging that premises No. 7/147, Kanpur is vested in the aforesaid educational institution and the entire income of the said premises is used exclusively for the purposes of the said educational institutions. The defendant (applicant) was a tenant of a tin- shed shop on the ground-floor constructed in 1978 at the rate of 137/- per month besides other taxes. It was also pleaded by the plaintiffs that the shops in question is exempt from the operation of the Act XIII of 1972 as amended up-to-date. The defendant did not pay the rent and taxes w.e.f. 1-7-1983. Consequently, a notice dated 22-4-1985 was served on the defendant on 26-4-1985 determining the tenancy of the defendant which came to an end on 26-5-1985. As the defendant did not comply with the reqirements of the notice, the suit was filed. 4. The defendant (applicant) filed the written-statement and stated that the contract of tenancy between the parties was reduced into writing but the copy whereof was not given to him. A security of Rs. 1500/- was also deposited and has been encashed. The defendant-applicant further alleged that initially the rent of the accommodation in suit was Rs. 125/- per month which was later on enhanced to Rs. 137.50/- per month. This amount, it was alleged included all the taxes. The defendant further stated that cheques were sent towards the payment of rent but were deliberately not encashed by the plaintiffs which resulted in arrears. However, receipt of notice was admitted. 125/- per month which was later on enhanced to Rs. 137.50/- per month. This amount, it was alleged included all the taxes. The defendant further stated that cheques were sent towards the payment of rent but were deliberately not encashed by the plaintiffs which resulted in arrears. However, receipt of notice was admitted. It was also stated by the defendant that on the first date of hearing the entire rent and other amount required under law were deposited. It was categorically stated that the provisions of Act XIII of 1972 are applicable to the shop in question. Lastly, it was contended that the plaintiffs (Opposite-parties) are not entitled to recover water-tax and drainage charges as included in the rent and the assessment is also not made. 5. The trial court on the basis of the evidence and the material on record decreed the suit for eviction, recovery of arrears of rent etc.etc. vide its judgment and order dated 31-1-1989, thus giving rise to this revision. 6. Heard counsel for the parties, Sri R.P. Pandey Bar-at-Law for the applicant and Sri Satya Narain Mishra, Advocate for the opposite-parties. 7. Learned counsel for the applicant has very strenuously urged that there is no exemption to the disputed shop and the building is covered under the said Act. It has been urged that the trial court erroneously held that the building is exempted in view of the provisions of Section 2(1)(b) of the said Act. It has been contended by him that the building does not belong to Opposite-party Nos. 2 and 3. It has been submitted that instead of Section 2(1)(b) the provisions of Section 2(1)(f) are applicable. Both the provisions are recited herein below in extenso : "2. Exemptions from operation of Act ............ (1) Nothing in this Act shall apply to ................ (a) .................................. 2 and 3. It has been submitted that instead of Section 2(1)(b) the provisions of Section 2(1)(f) are applicable. Both the provisions are recited herein below in extenso : "2. Exemptions from operation of Act ............ (1) Nothing in this Act shall apply to ................ (a) .................................. (b) any building belonging to or vested in a recognised educational institution, the whole of the income from which is utilised for the purpose of such institution, or (f) any building built and held by a society registered under the Societies Registration Act, 1860 (Act No. XXI of 1860) or by a co-operative society, company of firm, and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or as a guest house, by whatever name called, for the occupation of persons having dealing with it in the ordinary course of business". 8. It is very difficult to agree to such a submission. A personal of the above provision postulates that the building either belonging to or vesting in a recognised educational institution , would be exempt from the provisions of the said Act. In the New Webster's Dictionary, Delux Encyclopedic Edition Page 1103 word "vest" means as "To put on vestments; to become vested in a person or persons, as a right, to pass into possession, to devolve upon a person as possession." The trial court on the basis of the statement of P.W. 1 Raghubansh Kumar and the documents filed on behalf of the plaintiff.(Opposite-party) held that the provisions of Section 2(1)(b) are attracted and the premises in question is exempt from the mischief of Act XIII of 1972. This finding as stated above has been assailed by the learned counsel for the applicant but as observed I do not find any merit. 9. To buttress their case the plaintiffs produced P.W. 1 Raghubansh Kumar who has stated that Premises No. 7/147 vests in the educational institutions (Plaintiff No. 2 and Plaintiff No. 3). Further P.W. Raghubansh Kumar has stated that the whole of the income derived from the said premises is utlised for the purpose of these two institutions (Plaintiffs Nos. 2 and 3). Further P.W. Raghubansh Kumar has stated that the whole of the income derived from the said premises is utlised for the purpose of these two institutions (Plaintiffs Nos. 2 and 3). Certified copies of the balance-sheet of the plainiffs were filed as paper No. 61/C to 73/C. It was on the basis of this material coupled with the statement of P.W. 1 Raghubansh Kumar that the trial court came to the conclusion that the building as well as the impugned shop is exempt from the operation of the Act XIII of 1972. I do not find that the said finding of the trial court is erroneous or is not according to law. II is a finding of fact. The trial Court has rightly held that the disputed accommodation vests in the aforesaid educational institutions and the rental income of the same is exclusively utlised by the said institution. This is a finding of fact and does not require any interference. In any case of the matter it cannot be said that this finding is not according to law. 10. Learned counsel for the applicant has submitted that the provisions of Act XIII of 1972 are applicable in this case as the building was constructed in the year 1978 and after the expiry of 19 years as contemplated by Section 2(2), the building would be deemed to have come under the operation of the Act. Section 2(2) of Act XIII of 1972 is reproduced hereinbelow : "2. Exemptions from operation of Act. (1) .............. Section 2(2) of Act XIII of 1972 is reproduced hereinbelow : "2. Exemptions from operation of Act. (1) .............. (2) (Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, Sub-section (2) of Section 24, Sections 24, 24- B, 24-C or subsection (3) of Section 29, nothing in this Act, shall apply to a building during the period of ten years from the date on which the construction is completed); To appreciate this submission it is also necessary to seek recourse to Explanation 1(a) to Section 2 : "Explanation I - For the purposes of this section,- (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time : Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants:" 11. P.W. 1 Raghubansh Kumar has stated that the accommodation in question was constructed in the year 1978 and was first assessed to taxes w.e.f. 1-4-1982. To supplement their case the plaintiff-opposite- party filed paper No. 98-A and 98-C which are copies of the assessment of the disputed shop which show that it was assessed for the first time in the year 1982. To rebut the statement of the plaintiffs witness D.W. 1 Adesh Kumar examined himself and stated that the disputed shop was constructed some time in the year 1976-77 though later in his statement it was mentioned that it was constructed in the year 1978. Such a contradiction in the statement of D.W. 1 was found to be incredible and unworthy of reliance by the Court below. Such a contradiction in the statement of D.W. 1 was found to be incredible and unworthy of reliance by the Court below. This finding that the premises was first assessed for the first time in the year 1982 is also a finding of fact and in any case the conclusion drawn by the trial courts are according to law. Further as regards computation of a period of ten years it has been held by Supreme Court in the case of Nand Kishre Marwah v. Smt. Samundari Devi, (1987) 1 All Rent Cas 361 : AIR 1987 SC 2284 that if during the pendency of the litigation even if 10 years expired the restriction will not be attracted as suit has been instituted within 10 years. There is no dispute that the disputed shop was constructed some time in the year 1978. The learned counsel for the applicant has tried to raise a shadow of doubt as regards' the assessment of the disputed shop for the first time, however, with no success as it is clearly found that the shop in question was assessed for the first time in the year 1982. In any case the suit was filed some time in the year 1985 when ten years had not expired. It was thus rightly found by the court below ,was the building is exempt from the provisions, of the aforesaid Act. 12. Learned counsel for the applicant has submitted that there is perversity in the approach of the trial court in view of the fact that three cheques were sent to clear the arrears of rent. The first cheque No. 316021 dated 1-8-1982 was for Rs. 961.60 P.W. 1 Raghuhansh Kumar has admitted the receipt of this amount. Learned counsel for the applicant has urged that it will be deemed that the other two cheques were also paid and if they were not encahsed with some ulterior or mala fide motive, the defendants cannot he blamed. I do not find any merit in this submission. If the applicant had paid the amount then he would have proved such payment either from his own bank-account or could have summoned the bank account of the plaintiff-opposite-parties. In any case the only submission on behalf of the applicant is that the cheques were sent. I do not find any merit in this submission. If the applicant had paid the amount then he would have proved such payment either from his own bank-account or could have summoned the bank account of the plaintiff-opposite-parties. In any case the only submission on behalf of the applicant is that the cheques were sent. The trial Court on the basis of the evidence and the material available on record found that the applicant is a defaulter in the payment of rent. This is a finding of fact and is according to law. 13. Learned counsel for the applicant has then submitted that the applicant has deposited the entire arrears of rent, costs of the suit etc. as has been pleaded in para 7 of the written-statement which is reproduced hereinbelow : "7. That the contents of pars 7 of the plaint are not admitted and require proof. However as required under law, on the first date of hearing of the case. the defendant had deposited the entire rent claimed together with cost and interest without prejudice to his rights in the present suit, together with the fee of the counsel for the plaintiff. It is further submitted that the damages as claimed in the notice as well as in the suit are exhorbitant and they have been purposely coined to cover the jurisdiction of this Hon'ble court which otherwise never falls." 14. In view of such deposit having been made it is submitted that the plaintiffs are not entitled to decree of eviction. To support his submission learned counsel for the applicant has sought refuge in Section 114 of the Transfer of Property Act. Section 114 of the Transfer of Property Act is identical to the provisions of Section 20(4) of Act XIII of 1972 which provides as under : "114. To support his submission learned counsel for the applicant has sought refuge in Section 114 of the Transfer of Property Act. Section 114 of the Transfer of Property Act is identical to the provisions of Section 20(4) of Act XIII of 1972 which provides as under : "114. Relief against forfeiture for non payment of rent - Where a lease of immovable property has been determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessors the rent in arrear, together with interest, thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred." 15. Learned counsel for the opposite- party Sri S.N. Mishra has very strenuously submitted that the applicant has nowhere pleaded or had claimed benefit of Section 114 Transfer of Property Act. It has been submitted that all through the defence of the applicant was that the premises is governed by the provisions of Act. XIII of 1972 and this deposit as has been shown in para 7 of the written-settlement, is to seek protection under Section 20(4) of the Act. In any case, it has been submitted that once it has not been specifically pleaded before the trial Court such a point cannot be raised at the revisional stage. I am in agreement with the learned counsel for the applicant. 16. Learned counsel for the applicant has fortified his submission by R.S. Lala Praduna n Kumar v. Virendhra Goyal (Dead) by his legal representatives, AIR 1969 SC 1349 . In this case having regard to the circumstances of the case it was found that the discretion as is required for giving benefit of Section 114 Transfer of Property Act was exercised by the district court. The High Court summarily dismissed the appeal. The Supreme Court held that it will not ordinarily interfere with an order made in the exercise of the discretion of the courts below. Instantly no such plea was raised nor the trial court could exercise its discretion. The High Court summarily dismissed the appeal. The Supreme Court held that it will not ordinarily interfere with an order made in the exercise of the discretion of the courts below. Instantly no such plea was raised nor the trial court could exercise its discretion. It is not permissible to give an opportunity to the applicant to raise this plea at this stage. 17. No other point was raised or converted. 18. The revision has no merit and is liable to be rejected. 19. In the result the revision fails and is hereby dismissed with costs. The judgment and order of the trial Court dated 31-1-1989 decreeing the sum hereby affirmed.