Sheo Kumar Gupta v. Bhikham Singh — 1990 DIGILAW 1028 (ALL)

ORDER M.L. Bhatt, J. - The trial Court of XI Additional District Judge, Kanpur has directed the eviction of the applicant from the suit premises and has also asked him to pay the arrears of rent by the impugned judgment and decree dated 26.1.83. During the pendency of this revision petition the original tenant died and his legal representatives were brought on record vide order dated 5.7.89. 2. The learned counsel appearing for the applicant raised the following points before the Court. 3. In the first place he submitted that the rate of rent per month was Rs. 110/- and not Rs. 160/-, as determined by the Court below. The Court below in this regard, according to the learned counsel, has ignored the material evidence which is in the form of a document of assessment by the Nagar Mahapalika. In the second place, it was contended that the tenancy of the applicant has not been determined in accordance with law and the notice to quit under Section 106 of the Transfer of Property Act is bad, therefore, no ejectment proceedings would lie on the basis of invalid notice. The learned counsel has not pressed the ground of challenge on the basis of Section 39 of the U.P. Act No. 13 of 1972. Therefore, the fate of this revision would depend on the question of rate of rent per month being Rs. 110/- and not Rs. 160/- and the notice to quit being invalid. 4. I have heard the learned counsel for the parties at some length. 5. The Court below has tried the suit under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972), hereinafter referred to as 'the 1972 Act'. Section 20 of the said Act makes it possible for a landlord to evict the tenant from a building. A suit for eviction of a tenant from a building after determination of his tenancy from a building after determination of his tenancy can be instituted on a number of grounds envisaged in the said section. One of the grounds for eviction is that the tenant 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 of a notice of demand. 6. One of the grounds for eviction is that the tenant 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 of a notice of demand. 6. Sub-section (4) of Section 20 of 1972 Act provides that 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 for use and occupation of the building due from him together with interest thereon at the rate of 9% per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court can relieve the tenant from being evicted from such premises. 7. For institution of the suit under Section 20 of the 1972 Act on the ground of non-payment of rent, it is necessary that the tenant must be in arrears for four months' rent and must have failed to pay the same to the landlord within one month from the date of service upon him of the notice of demand. A suit for eviction would lie against the tenant on the said ground after the determination of his tenancy. The Transfer of Property Act requires 15 days for determination of the tenancy of the tenant. However, U.P. Amendment requires 30 days notice of determination of tenancy. 8. The contention about the amount of arrears of rent being Rs. 110/- per month and not Rs. 160/- is based on some assessment order of the Nagar Mahapalika, a copy whereof is placed on the record. There is some presumption attached to this copy of the document, which is obtained from a public record but this presumption is rebuttable and if it is proved that the assessment order does not incorporate the correct amount of rent, the Court may depart from the entries recorded in the assessment order. The assessment order is admissible in evidence because it is copy of the public document but its contents are not conclusive and the presumption attached to its contents is rebuttable. In the present case the Court below has relied on the statement of the landlord and on the statement of one of the witnesses of the applicant. The assessment order is admissible in evidence because it is copy of the public document but its contents are not conclusive and the presumption attached to its contents is rebuttable. In the present case the Court below has relied on the statement of the landlord and on the statement of one of the witnesses of the applicant. After recording of the statement of the applicants witness the applicant seems to have made an unsuccessful attempt to declare his own witness hostile but no effort was made during the course of examination before the Court to put any further question or leading question to him with the permission of the Court. The statement of the defendant's witness recorded by the Court below is binding on him. The said statement of the witness is corroborated by the statement of the landlord. Therefore, there was enough material for the Court below to hold that the rate of rent was Rs. 160/- per month and not Rs. 100/- as asserted by the applicant. The Court below has believed the witness of the applicant which would not amount, to any jurisdictional error or exercising jurisdiction illegally or with material irregularity. The application of the defendant's witness has not been perverse. Therefore, it is not open to this Court to interfere with the finding of the Court below about the rate of rent per month, which fact was corroborated by the testimony of the landlord himself. 9. Law does not require to examine multiple witnesses to prove a certain fact. For proof of a fact even a solitary witness can be believed provided his testimony is credible and it inspires confidence of the Court. Plurality of witnesses to prove a fact is not required at all. The Court while appreciating the evidence in this case could not have ignored that the plea set up by the landlord about the rate of rent per month was supported by the testimony of the applicant's witness, whose statement will be binding on the applicant in these proceedings. The Court below has taken pains in appreciating the evidence. It could have relied upon the solitary testimony of the landlord also. The Court below has taken pains in appreciating the evidence. It could have relied upon the solitary testimony of the landlord also. But when the landlord's statement is corroborated by the applicant's witness the fact which was to be considered by the Court below was amply proved and there is infirmity in the finding which is arrived at on the evidence of the applicant's witness supported by the landlord's statement. Therefore, the contention of the learned counsel for the applicant that the Court below has ignored the material evidence from consideration is of no avail to the applicant. 10. The learned counsel for the applicant has relied on an authority of the Rent Control reported in AIR 1981 SC 1085, Ramji Dayawala and Sons (P) Ltd. v. Invest Import, to the effect that if any incontrovertable evidence was overlooked which pointed to the contrary the finding on such point was unsustainable before the Supreme Court. In the present case as already stated the testimony of the defendant's witness coupled with the plaintiffs own statement is sufficient proof of a fact, asserted by the landlord. The applicant's own witness has stated against him. So the plea raised by him about the rate of rent could not be held to have been proved at the trial. There was no other incontrovertable evidence which was overlooked by the Court below. The statement of the defendant's witness has amply rebutted the entries in the assessment order of the Nagar Mahapalika which assessment has only a presumptive value. If that is successfully rebutted no fault can be found in the conclusion arrived at by the trial Court. Therefore, on facts the authority relied on by the learned counsel for the applicant is not applicable to the facts of the present case. 11. There is no dispute that extracts and copies from public documents maintained by the Government or by a Municipality are admissible. The admissibility of a document would not amount to a document being conclusively true. The contents of a document can still be rebutted. 12. With regard to the validity of the notice under Section 106 of the Transfer of Property Act, the learned counsel for the applicant cited an authority of this Court, Abdul Jalil v. Haji Abdul Jalil, AIR 1974 Allahabad 402. The contents of a document can still be rebutted. 12. With regard to the validity of the notice under Section 106 of the Transfer of Property Act, the learned counsel for the applicant cited an authority of this Court, Abdul Jalil v. Haji Abdul Jalil, AIR 1974 Allahabad 402. The Lucknow Bench of this Court has drawn a distinction between notice to determine a lease and notice to quit. Where the notice requiring the tenant to vacate the premises on expiry of 30 days from the receipt of the notice is given, such a notice is held not to be valid. Such a notice was held not to contain a demand for possession and did not purport to terminate the tenancy. The notice, therefore, must expressly state that the tenant was required to vacate the premises on the expiry of 30 days from the date of service of the notice failing which a suit for ejectment will be filed against him. Such a notice is valid. According to the authority reported in AIR 1974 Allahabad 402 (supra) sine qua non for the validity of the notice is that it must demand eviction of the premises by the lessee at the expiry of the period of notice. This authority supports the contention of the landlord rather than the applicant-tenant if it is read with the contents of the notice which was served by the landlord on the applicant. 13. The applicant's objection to the validity of the notice is that it requires the tenant to hand over the possession of the premises within 30 days, though the notice should have said that the premises be vacated after 30 days. Copy of the notice is on the record. Para 7 of the notice under Section 106 of the Transfer of Property Act reads as under : "7. Copy of the notice is on the record. Para 7 of the notice under Section 106 of the Transfer of Property Act reads as under : "7. That your tenancy is hereby terminated after the expiry of 30 days from the receipt of this notice and you are requested to clear off the arrears of rent and to hand over vacant and peaceful physical possession of the accommodation under your tenancy to my client within one month of the receipt of this notice failing which my client shall be constrained to file ejectment and arrears' realisation suit against you and in that event you will be further saddled with costs and consequences there of and your possession after the expiry of stipulated period will be of a trespasser liable to pay damages." 14. The validity of such type of notice was considered by Full Bench of this Court in Gorakh Lal v. Maha Prasad Narain Singh, reported in AIR 1964 Allahabad 260. The notice in that case was given more or less on the same pattern in which the notice in the present case was given. The Full Bench while examining the notice held as under : "Where the notice for ejectment under Section 106 (as amended in U.P.), which was served by the landlord on the tenant, purported to say that the tenant should vacate the premises "within 30 days of the service of notice." Held that the words used in the notice asking the tenant to vacate the premises within thirty days from the service of the notice only fix the outer limit by which the tenant must vacate. The limit fixed was the last moment of the thirtieth day of the notice, and the notice so construed was strictly according to the letter and spirit of the law and was valid." 15. From the aforesaid discussion it would appear that the notice under Section 106 of the Transfer of Property Act served by the landlord on the applicant does not suffer from any infirmity and is a valid notice. Therefore, the tenancy of the applicant was determined in accordance with law and the suit for ejectment on this ground was not defective in any manner. 16. The argument based on Section 39 of the 1972 Act was not pressed by the applicant before the Court. 17. No other point was raised by the applicant. 18. Therefore, the tenancy of the applicant was determined in accordance with law and the suit for ejectment on this ground was not defective in any manner. 16. The argument based on Section 39 of the 1972 Act was not pressed by the applicant before the Court. 17. No other point was raised by the applicant. 18. The applicant has not deposited the entire rent as required under law, so he cannot be relieved from being evicted. Partial deposit of rent at the rate of Rs. 110/- per month would not amount to valid deposit or tender of rent in the eyes of law. To enable the tenant to take any benefit of Section 20(4) of 1972 Act the tenant is obliged to deposit the entire amount of arrears of rent together with interest and costs of litigation in the manner provided under law. In this case the applicant has deposited the arrears of rent at a lower rate than he was actually obliged to deposit. The arrears of rent deposited must represent the entire rent due to the landlord. Therefore, the applicant has rightly been held to have been in arrears of rent by the Court below, which would entail in his eviction because despite notice he has not paid deposited the entire amount of arrears of rent. The notice under Section 106 of the Transfer of Property Act served on the applicant is also valid. Therefore, the proceedings for eviction initiated against the applicant do not suffer from any infirmity. Both the points raised by the learned counsel for the applicant are answered against him. Therefore, no interference is called for with the judgment and decree passed by the trial Court. 19. For the aforesaid reasons this revision petition has no merit and is liable to be dismissed. Accordingly, the revision is hereby dismissed but no order as to costs.