Mohd. Siddiq v. IInd Addl. District Judge — 1996 DIGILAW 1478 (ALL)

Judgment : S. P. Srivastava, J. 1. FEELING aggrieved by an order dismissing the revision of the petitioner-tenant filed by him under Section 25 of the Provincial Small Cause Courts Act, affirming the decree of the trial court for his ejectment from the premises in dispute and recovery of arrears of rent for damages for use and occupation, he has now approached this Court seeking redress praying for the quashing thereof. 2. I have heard Sri Z. Zilani, learned counsel for the petitioner and Sri P. N. Khare, learned counsel for the contesting respondents and have carefully perused the record. The facts in brief shorn of details and necessary for the disposal of this case, lie in a narrow compass. The plaintiff respondents had filed a suit praying for a decree of ejectment of the defendant from the premises in dispute under his tenancy. It was alleged that the said premises had been let out on a rental of Rs. 15 per month which was lying In arrears since 4.11.1974. It was further claimed that in spite of notice dated 5.6.1980, the defendant had neither paid the arrears nor vacated the premises In dispute. 3. THE aforesaid suit was contested by the defendant petitioner on various grounds. In the written statement the rate of rent as claimed by the plaintiff was denied asserting that in fact the premises in dispute had been let out at a rental of Rs. 8.50 per month duly. In paragraph 13 of the written statement, however, the defendant admitted that rent from 1st April, 1978 to 31st July, 1981 had fallen due which was deposited on 24.7.81 In court as the plaintiff had refused to accept the money order sent to him tendering the aforesaid amount. It was also asserted that the amount deposited in court included the adjudgment of Rs. 60 which the defendant had paid towards taxes. 4. THE trial court on an appraisal of evidence on record, came to the conclusion that the rate of rent on which the premises In dispute had been let out was only Rs. 8.50 and not Rs. 15 as claimed by the plaintiff. 60 which the defendant had paid towards taxes. 4. THE trial court on an appraisal of evidence on record, came to the conclusion that the rate of rent on which the premises In dispute had been let out was only Rs. 8.50 and not Rs. 15 as claimed by the plaintiff. It was further found that the defendant had not tendered or paid the rent for the period prior to 1.4.1978 and consequently, the rent which had remained in arrears on the date of the service of the notice contemplated under Section 20 (2) (a) of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 was for a period of more than four months and consequently defendant was a defaulter as contemplated under the aforesaid provision. THE combined notice of demand and termination of tenancy sent by the plaintiff which had been duly served on the defendant petitioner was held to be valid in law. THE findings of the trial court were affirmed by the revisional court. The learned counsel for the defendant petitioner has strenuously contended that the combined notice sent by the plaintiff terminating the tenancy of the petitioner and raising demand for the payment of the arrears of rent was invalid and the suit based on such a notice was liable to be dismissed. What has been urged is that the notice in question contained a demand in regard to the payment of the arrears of rent at a higher rate then agreed upon. Since the rate of rent agreed upon was only Rs. 8.50 per month whereas the claim in regard to the arrears was made on the basis of the rate of rent being Rs. 15 per month, such a notice containing an exaggerated demand, according to the learned counsel for the defendant, has to be treated as a notice invalid in law and a suit filed on the basis of such a notice was liable to be dismissed. 5. 15 per month, such a notice containing an exaggerated demand, according to the learned counsel for the defendant, has to be treated as a notice invalid in law and a suit filed on the basis of such a notice was liable to be dismissed. 5. THE learned counsel for the contesting respondent has, however, urged that a tenant in order to get relieved of the liability of ejectment has to ensure that the rent in respect of the accommodation let out to him is paid regularly and in any case, If it is In arrears, must be paid within the period prescribed on the receipt of the notice contemplated under Section 20 (2) (a) of the said Act which provides an opportunity to the tenant to get Over the defaults committed by him if in the past, if any. 6. IT has further been urged that even if the notice containing a demand in regard to payment of arrears of rent calculated at a higher rate of rent when agreed upon, that cannot furnish a lawful excuse to the tenant to avoid clearing of the outstanding arrears. Learned counsel for the respondents in support of his submission has placed reliance on the decisions of this Court rendered by Division Bench In the case of Lala Manohar Lal v. Lala Bimal Kumar, 1955 AWR 395, in the case of Ram Pratap v. Sri Panna Lal, 1956 AhJ 787 and In the case of M. P. Garg v. Shri Vijat Laxmi 1993 ARC 74. 7. IN the case of Lata Manohar Lal (supra), this Court had observed that there was no particular reason why the notice of demand must IN order to be a valid notice contain such amount of the arrears of rent as be ultimately admitted by the tenant to be correct or be ultimately found by the Court to be correct. It was further indicated that the tenant is called upon to pay the arrears of rent, which in the first instance, means the amount mentioned in the notice and if the tenant does not admit the correctness of that amount and does not like to pay the full amount there seems to be no reason why he should not pay at least such amount as he considers to be due. If he makes such a payment, he safeguards his position and the fault would be entirely of the landlord if he goes to court seeking eviction of the tenant. He will fail in his suit, if the tenant succeeds in satisfying the court that he had paid up the arrears of rent due even though the demand was for a larger amount. It was emphasised that there seemed to be no reason why the simple expression "notice of demand" whose main purpose must be to warn the tenant that he has overlooked paying rent and should pay it should be interpreted to strictly as the term "demand* is interpreted under the common law of England, where the notice of demand means a notice of demand for the precise amount ultimately found due at the time the notice was given. The Division Bench concluded that it was not necessary for the valid notice for demand that the amount of arrears of rent mentioned in it should be the exact amount found due on the date of the notice by the Court IN case the amount is contested on behalf of the contending defendant. 8. IN Its decision in the case of Ram Pratap (supra), this Court observed that a notice of demand may not mention the amount at all. It may simply ask the tenant to pay the arrears which he has not paid for the requisite period. If IN the notice of demand, an amount is mentioned which turns out to be in excess of the amount which is really due from the tenant this circumstance will not render the notice bad in law. Noticing that any other view is likely to entail great difficulty in the way of the landlord serving a correct notice, for It may be that, the landlord may be honestiy mistaken as to the rate of the rent per month from the tenant or he may not know of the amount has been spent by the tenant upon lawful repairs, this Court emphasised that since the notice of demand Is served upon a tenant It is his duty to pay such amount as he thinks is due from him and If ultimately it is found that the amount paid by the tenant was the correct amount, the landlord's suit for ejectment will be dismissed. But there can be no justification for the tenant to remain silent and not pay even the amount which, according to him, is due and than to claim that the notice was invalid and that he was not liable to ejectment. In the case of M. P. Garg (supra), the views expressed in the earlier Division Bench in the case of Manohar Lal (supra) were reiterated. 9. CONFRONTED with the aforesaid decision relied upon by the learned counsel for the landlord respondents, the learned counsel for the petitioner urged that in yet another decision of this Court rendered by a Division Bench in the case of Wasim Khan v. Shahid Alt, 1971 AIRCJ 867, it had been observed that a notice of demand requiring the tenant to pay the rent at the rate higher than that on which the tenant was liable to pay was an illegal notice and it was indicated that in such a case, the landlord will be taken as not acting bona fide and such an action will amount to trying to develop a situation in which the tenant may find himself in default and render himself liable for eviction and so observing the suit on the basis of such a notice was dismissed. On the strength of the aforesaid decision, the learned counsel for the petitioner has urged that the notice of demand in the present case should also be held to be invalid in law and the suit based on such a notice deserved to be dismissed. 10. IN the aforesaid connection, it was also pointed out that a learned single Judge of this Court vide the order dated 3.1.1985 passed in Civil Misc. Writ Petition No. 2575 of 1979, Gokaran Singh v. 1st Additional District Judge, finding that there was a conflict IN the decision in the case of Wasim Khan (supra) and the decision of the Division Benches, in the cases of Lala Manohar Lal (supra). Ram Pratap (supra) and M. P. Garg (supra), framing certain questions for being considered by a larger Bench, referred the whole case to Full Bench. Taking into consideration the pendency of the reference, it was urged by the learned counsel for the petitioner that this writ petition should await the final decision of the Full Bench. Ram Pratap (supra) and M. P. Garg (supra), framing certain questions for being considered by a larger Bench, referred the whole case to Full Bench. Taking into consideration the pendency of the reference, it was urged by the learned counsel for the petitioner that this writ petition should await the final decision of the Full Bench. A copy of the order of the reference dated 3.1.1985 relied upon by the learned counsel for the petitioner has been produced. A perusal of the order dated 3.1.1985 indicates that the learned single Judge being of the view that there was a conflict in the decisions of the Division Benches had indicated certain questions which in his opinion required consideration by a larger Bench and had referred the two writ petitions being Writ Petition No. 132 (B/C) of 1980 and Writ Petition No. 2575 (R/C) of 1979 for being decided by a Full Bench. Obviously, therefore, there is no reference on a particular question of law which is required to be answered by a larger Bench. The referring order of the nature as indicated above cannot be taken to be a binding precedent and it cannot go beyond the stage of creating a doubt and in any case, it cannot be taken to be a decision, the ratio whereof has a binding effect on the Bench having accordinate to jurisdiction. Considering the circumstances indicated hereinabove, the petitioner stands confronted with a hurdle and the insured passable hurdle provided by the previous decisions of this Court rendered in the cases of Manohar Lal (supra), M. P. Garg (supra) and Ram Pratap (supra) and I am clearly of the view that it is not possible to escape from the impact of the decisions rendered by the Division Benches in the aforesaid cases without doing violence to the valuable doctrine of stare decicts. The decision of this Court in the case of Manohar Lal (supra) was rendered by a Division Bench long back in the year 1955 and was followed in the latest decision of another Division Bench of this Court have in the case of M. P. Garg (supra) rendered in the year 1983. The earlier decisions of the two Division Benches of coordinate jurisdiction of this Court had not been noticed at all, while rendering the decision in the case of Waslm Khan (supra). The earlier decisions of the two Division Benches of coordinate jurisdiction of this Court had not been noticed at all, while rendering the decision in the case of Waslm Khan (supra). It may be noticed that the doctrine of per Incuriam applies where in another division the same court had reached a decision in the absence of knowledge of a decision binding on it or a statute and that in either case, it had to be shown that had the court had that material, it must have reached a contrary decision. That is per incuriam. This doctrine does not extend to a case where if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion. 11. IN the circumstances, noticed hereinabove, the decisions rendered by the Division Benches in the cases of Manohar Lal (supra). Ram Pratap (supra) and M. P. Garg (supra) continued to retain their binding force and the submissions made by the learned counsel for the petitioner. IN regard to the invalidity of the notice cannot be accepted. 12. THERE is yet another aspect which cannot be overlooked. The provisions contained in Section 20 (2) of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 indicate that in spite of the determination of tenancy of the tenant in accordance with the provisions contained in the Transfer of Property Act, the tenant is permitted to continue in the accommodation under his tenancy which accommodation is within the purview of the Act in the capacity of a statutory tenant with a bar in regard to seeking his eviction by filing a suit for the purpose but this bar stands lifted once the landlord succeeds in establishing the requirements envisaged under Section 20 (2) (a) of the Act and satisfies the conditions prescribed thereunder. As observed by the Apex Court, the Rent Control Acts are necessary social measures for protection of tenants. The Rent Control Laws, the Hon'ble Supreme Court has emphasised, have tried to balance the equity. Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and If he does not satisfy, he cannot get an order of eviction. The Rent Control Laws, the Hon'ble Supreme Court has emphasised, have tried to balance the equity. Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and If he does not satisfy, he cannot get an order of eviction. But once the ground of eviction specified in the Act is made out, no discretion is left with the authority to refuse the relief of eviction sought for. As pointed out by the Apex Court in its decision In the case of Madan Mohan and another v. Mohan Kumar Sood. 1995 (1) JT 162, whatever protection the Rent Acts give, they do not give blanket protection for non-payment of rent. This basic minimum has to be complied with by the tenants. The Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent. 13. IN the aforesaid view of the matter, the petitioner once having been informed that he had fallen in arrears in regard to payment of rent for more than the requisite period, was duty bound to clear the arrears, if any, by tendering the same to the landlord or deposit the same in court as provided under the Act, If he wanted the protection of the Act. He could not just ignore the notice on the ground that it contained an inflated demand and on that ground, continue to enjoy the accommodation let out to him without payment of rent. It may be observed that once after receiving the notice informing the tenant that he has been defaulting in the payment of rent for the prescribed period and he may be evicted, the tenant in order to save his default, if there be any, must pay the rent due according to him, to the landlord or deposit the same in accordance with the provisions of the Act otherwise he has to face the consequences. This, it seems to me, is the underlying policy of the Act and amply safeguards' the interest of both the landlord and the tenant, maintaining a Just balance between their computing interests. 14. This, it seems to me, is the underlying policy of the Act and amply safeguards' the interest of both the landlord and the tenant, maintaining a Just balance between their computing interests. 14. THE learned counsel for the petitioner has next contended that the defendant was seriously prejudiced on account of the wrong placing of the burden of proof on him in regard to the question relating to the existence of the arrears of the rent which in face of the denial of the defendant stood shifted on to the plaintiff. So far as this aspect is concerned, the Apex Court in its decision in the case of Mohan Lal v. Laxman Das, 1991 HRR 510 had observed that the onus to show payment lieu on tenant and the mere oral testimony is not sufficient to discharge the same. In a case where the tenant comes forward with a case that the rent was paid by him but no receipt was issued by the landlord, without there being any explanation for sending the rent by money order, the tenant's version cannot be believed. In the present case, the landlord had come up with the definite allegation that the tenant was in arrears of rent for more than the prescribed period and.no rent had been paid by him for the period 1.11.1974 to 30.5.1978. In view of the assertion of the landlord on oath in this regard, the onus of proof stood shifted on to the tenant to show payment of rent as claimed. THE trial court recorded a clear and categorical finding to the effect that the defendant had failed to prove the payment of rent for the period prior to 1.4.1978. This finding stands affirmed in revision. In fact of the aforesaid finding based on an appraisal of evidence on the record which finding does not appear to suffer from any such infirmity which may Justify any interference therein, while exercising the extraordinary Jurisdiction envisaged under Article 226 of the Constitution of India, there could be no impediment in the grant of the decree for ejectment against the petitioner as prayed for specially when the rent for the period subsequent to 1.4.1978 which was admittedly due was not tendered or paid within the time prescribed. In the aforesaid view of the matter, no justifiable ground has been made out for any interference by this Court in the impugned decree, while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. 15. THE writ petition is accordingly dismissed. There shall however, be no order as to cost.