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1995 DIGILAW 759 (ALL)

Baul v. Parasu Ram Dubey

1995-07-27

T.P.GARG

body1995
JUDGMENT (1.) T. P. Garg, J. This a landlord's petition arising from a suit for recovery of arrears of rent and eviction of Parasu Ram Dubey, respondent No. 1, from a portion of a house admittedly governed by the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (herein after referred to as the Act). The eviction of the respondent No. 1 was claimed on the ground of default in payment of rent as contemplated by Section 20 (2) of the Act. (2.) THE facts in brief are that the petitioner filed a suit for ejectment, arrears of rent, damages for use and occupation and cost of notice against respondent No. 1. THE disputed accommodation is a portion of house No. 31, S. C. Basu Road, Allahabad (detailed fully in Para 1 of the plaint). It is alleged that the defendant was the tenant of the demised premises on a monthly rent of Rs. 40. THE defendant fell in arrears of rent since 1-5-1977 which he did not pay despite repeated demands by the plaintiff. He was consequently served with a composite notice of demand dated 23-11-1981 and served on 30-11-1981, but with no effect. He has neither vacated the disputed accommodation nor has paid the arrears of rent. Hence the suit. The defendant contested the suit. In his written statement it is alleged that his tenancy comprises of not only the disputed portion but the entire house bearing No. 33 (and not 31, as alleged by the landlord) except three shops on the ground floor. Further that the defendant alone is not tenant of this house ; that his tenancy is joint with one Mandhata Singh ; that originally S. P. Pandey, Mandhata Singh and the defendant were the tenants in common but rent receipts were issued in the exclusive name of the defendant. The original landlady of the house was Mst. Hafizan Bibi and the rent was Rs. 20 per month which was subsequently, enhanced to Rs. The original landlady of the house was Mst. Hafizan Bibi and the rent was Rs. 20 per month which was subsequently, enhanced to Rs. 39 per month ; that the rent was remitted by the defendant by means of a money order dated 29-7-1977 which was refused by the plaintiff with the result that the same was deposited in the Court of Munsif, Allahabad under Section 30 (1) of the Act; that there was another remittance of rent by the defendant by money order dated 7-2-1981 which too was refused by the plaintiff and this amount was also deposited in the said Court. Certain other objections were also raised. The trial Court framed the following issues for determination: (1) Whether the rent of the disputed accommodation is Rs. 40 per month or is Rs. 39 per month as is alleged by the defendant ? (2) Whether the rent of the accommodation is due since 1-5-1977 as alleged by the plaintiff ? (3) Whether the defendant was tenant of only portion of the house in question, as alleged in the plaint or he was the tenant of the whole house No. 31, S. C. Basu Road, Allahabad, except the three shops on the ground floor as pleaded by the defendant. In either case, its effect ? (4) Whether the defendant alone was the tenant of the disputed accommodation of his tenancy or was in jointness with Mandhata Singh as claimed by him. In either case, its effect ? (5) Whether the defendant is a defaulter in the payment of rent as understood under Section 30 (2) of the U. P. Act No. 13 of 1972 as suggested by the plaintiff ? (6) Whether the suit is bad for the non joinder of the necessary parties, as alleged by the defendant ? (7) Whether the suit is barred by Section 20 of the U. P. Act No. 13 of 1972 as claimed by the defendant ? (8) To what relief, if any, is the plaintiff entitled against the defendant in the case ? (3.) UNDER point No. 1, it was held that the rate of rent was Rs. 40 per month and not Rs. 39 under point No. 2, it was held that rent was due from 1-5-1977. (8) To what relief, if any, is the plaintiff entitled against the defendant in the case ? (3.) UNDER point No. 1, it was held that the rate of rent was Rs. 40 per month and not Rs. 39 under point No. 2, it was held that rent was due from 1-5-1977. UNDER point No. 3, it was held that the defendant was tenant of only the portion of the house and not the entire house No. 31. UNDER Issue No. 4, it was held that the defendant alone was the tenant of the disputed accommodation and his tenancy was not joint with Mandhata Singh at alleged by him. Issue No. 5 was decided in the affirmative and it was held that the defendant was a defaulter in the payment of rent. Issue Nos. 6 and 7 were decided in the negative. Consequently, the suit of the plaintiff was decreed for ejectment and recovery of Rs. 440 as arrears of rent by way of damages for use and occupation and future damages from him is Rs. 40 per month. The decree was passed on 6-4-1985 (Annexure-1 to the writ petition). (4.) THE tenant, respondent No. 1, filed a revision against the aforesaid decree. THE Vth Additional District Judge, Allahabad vide his judgment dated 19-3-1991 (Annexura-2 to the petition) allowed the revision and remand the case to the Court of Judge Small Cause to reappraise the evidence on record and decided the case afresh in view of the observations made in the judgment. Further that the sole point of controversy was the default (in payment of rent). It was also held that even if the rent was deposited under Section 30 (1) of the Act by two persons, the benefit of the same could be given to the defendant. Aggrieved by the aforesaid order of the revisional authority, the landlord has filed the present petition. I have heard the learned counsel for the parties and have gone through the record. (5.) THE plea of the landlord petitioner is that since only Parasu Ram Dubey respondent was proved to be the tenant by the trial court, any deposit made jointly with Mandhata Singh would not give any benefit to the tenant Parasu Ram Dubey and as such, the order of the Revisional Authority was not sustainable. (5.) THE plea of the landlord petitioner is that since only Parasu Ram Dubey respondent was proved to be the tenant by the trial court, any deposit made jointly with Mandhata Singh would not give any benefit to the tenant Parasu Ram Dubey and as such, the order of the Revisional Authority was not sustainable. This plea is not tenable in view of the fact that the trial Judge failed to take into consideration an important document viz. an affidavit Ex. 62 Ga filed along with application Ex. 61-Ga dated 14-2-85 by Mandhata Singh through the counsel for the tenant although it was ordered to be placed on record for whatever truth it was. This document was neither admitted into evidence nor rejected. In the affidavit Ex. 62-Ga Mandhata Singh is alleged to have stated that the rent deposited under Section 30 of the Act was deposited by Parasu Ram Dubey alone and he had no concern whatsoever with it. This document has nowhere been referred to by the trial Judge in his judgment although a finding has been recorded that the deposit under Section 30 of the Act was not valid and legal, and could not be deemed to have been made by the tenant alone. THE trial Judge could have even summoned Mandhata Singh to verify the truthfulness of the said affidavit but no such course was adopted. In this view of the matter, the Revisional Court has rightly held that the trial court has committed manifest error of law and its findings with regard to the deposit under Section 30 of the Act are thus clearly vitiated. THE revisional court has rightly observed that it was beyond its competence and jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself and consequently remanded the case back after laying down proper guidelines. In my view the order of revisional court does not suffer from any infirmity and deserves to be maintained. I am fortified to ray view by the authority cited as Nand Kishore Tripathi v. THE District Judge, Shahjahnapur, 1994 (23) A. L. R. 467, Kailash Narain Srivastava v. IVth A. D. J. Jhansi, AIR 1986 All 207 and Baboo Lal v. Dakhini Din, AIR 1978 All 547 . I am fortified to ray view by the authority cited as Nand Kishore Tripathi v. THE District Judge, Shahjahnapur, 1994 (23) A. L. R. 467, Kailash Narain Srivastava v. IVth A. D. J. Jhansi, AIR 1986 All 207 and Baboo Lal v. Dakhini Din, AIR 1978 All 547 . (6.) IN view of the above, this writ petition is without merit and is accordingly dismissed but with no order as to costs. The order dated 19-3-1991 passed by Vth Additional District Judge, Allahabad (Annexuro-2 to the petition) is maintained, and the Judge Small Causes Court, Allahabad is directed to decide the suit according to law in the light of the observations made above. Since the suit was instituted sometimes in the year 1982 i. e. about 13 years ago, the Judge Small Cause will decide the case expeditiously preferably within a period of three months of the filing of the certified copy of this judgment by any of the parties in the suit. Petition dismissed.