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1997 DIGILAW 544 (ALL)

Doolah Jan v. IIIrd Addl. District Judge

1997-05-13

SUDHIR NARAIN

body1997
JUDGMENT : Sudhir Narain, J. The Petitioner seeks writ of certiorari quashing the judgment dated 24.1.1991 passed by Respondent No. 1. 2. The facts, in brief, are that the Petitioner is owner and landlord of the shop in question situate at Maqbara Road, Guiyan Bagh, Moradabad. Respondent No. 2 was its tenant. The Petitioner filed S.C.C. Suit No. 98 of 1983 against Respondent No. 2 on the allegation that rent of the shop in question was Rs. 60 per month. It was a new construction and was assessed for the first time in 1978 and the provisions of U.P. Act No. XIII of 1972 were not applicable. The tenant failed to pay arrears of rent since 1.9.1980. A notice dated 21.3.1983 was sent to Respondent No. 2 demanding arrears of rent and terminating his tenancy but the same was not complied with. 3. Respondent No. 2 contested the suit by filing a written statement. He alleged that the rate of rent was Rs. 20 per month and not Rs. 60 per month. The building in question was an old construction and provisions of U.P. Act No. XIII of 1972 were applicable. He never committed any default in payment of rent. 4. The Judge, Small Causes Court recorded a finding that the building was not an old construction and the provisions of Act No. XIII of 1972 were not applicable. The rate of rent was Rs. 60 per month. The tenant committed default in payment of arrears of rent. The trial court decreed the suit on 9.2.1990. The tenant-Respondent No. 2 filed revision against the said order. Respondent No. 1 held that provisions of Act No. XIII of 1972 were not applicable as it was a new construction. As regards the rate of rent, it held that the rent of the shop in question was Rs. 20 per month and not Rs. 60 per month as alleged by the Plaintiff. The notice was held to be invalid for the reason that the Petitioner had demanded higher rate of rent. The suit of the Plaintiff was dismissed by the impugned order dated 24.1.1991. 5. I have heard Sri Ravi Kiran Jain, Senior Advocate, for the Petitioner and Sri R. P. Goyal, Senior Advocate, for Respondent No. 2. 6. The notice was held to be invalid for the reason that the Petitioner had demanded higher rate of rent. The suit of the Plaintiff was dismissed by the impugned order dated 24.1.1991. 5. I have heard Sri Ravi Kiran Jain, Senior Advocate, for the Petitioner and Sri R. P. Goyal, Senior Advocate, for Respondent No. 2. 6. Learned Counsel for the Petitioner submitted that Respondent No. 1 was not justified in reversing the finding of the Judge, Small Causes Court and even assuming the rate of rent was at Rs. 20 per month, it acted illegally in holding that the notice terminating the tenancy sent to Respondent No. 2 was invalid only for the reason that the Plaintiff-Petitioner had demanded rent at a higher rate. Respondent No. 1 has affirmed the finding of the Judge, Small Causes Court that provisions of U.P. Act No. XIII of 1972 are not applicable to the shop in question as it was a new construction. 7. A notice u/s 106 of Transfer of Property Act is given by a lessor to a lessee for termination of his tenancy. It is not required by the landlord to make demand of arrears of rent while determining the tenancy u/s 106 of the Transfer of Property Act. The lessor can give a separate notice demanding arrears of rent. The landlord if makes demand of arrears of rent as contemplated u/s 20(2)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, against a tenant, it is a separate notice of demand of arrears of rent by the landlord to the tenant. The purpose of these two notices are different. The landlord can, however, combine both the notices. In case the landlord has demanded higher rate of rent or excessive rent, the notice given u/s 106 of Transfer of Property Act cannot be treated as invalid. As regards the notice demanding arrears of rent, even if the amount is either not mentioned or incorrect amount has been demanded by the landlord from the tenant, the tenant is bound to pay the rent which according to him is due. The notice demanding arrears of rent shall, however, not be treated as invalid either because of excessive rent has been claimed or exact amount due against the tenant has not been disclosed. 8. In Ram Pratap and Anr. The notice demanding arrears of rent shall, however, not be treated as invalid either because of excessive rent has been claimed or exact amount due against the tenant has not been disclosed. 8. In Ram Pratap and Anr. v. Sri Panna Lal 1956 ALJ 787, the Division Bench of this Court held that if a notice of demand is made by the landlord against the tenant u/s 3(1)(a) of U.P. Act No. 3 of 1947 and the amount mentioned turns out to be in excess of the amount really due from the tenant, the notice of demand shall not be invalid. The Court was interpreting Section 3(1)(a) of U.P. (Temporary) Control of Rent and Eviction Act, 1947 which is almost similar to the provisions of Section 20(2)(a) of U.P. Act No. 13 of 1972. The Court held that Clause (a) of Sub-section (1) of Section 3 of U.P. Act No. 3 of 1947 does not require that the notice of demand shall state the amount due from the tenant. A notice of demand may not mention the amount of rent. It may simply ask the tenant to pay arrears which has not been paid for the last more than three months. Another Division Bench in Jagat Narain Mehra v. Madan Lal 1961 ALJ 442, wherein the landlord called upon the tenant to pay arrears of rent for 11 months, held that the notice was valid. It was not required in law that the notice must indicate the specified amount of rent payable by the tenant. In Rati Uddin v. IVth Additional District Judge, Basti and Anr. 1981 ARC 146, it was held that a notice shall not be treated as invalid merely because the lessor demanded higher rate of rent than the contractual rate. The tenant may raise the dispute in court about rate of rent or the period for which it was due. The Court will have to determine such controversy. The tenant shall be liable to pay such amount which is found to be due against the tenant. The notice demanding arrears of rent cannot be held to be invalid merely because the amount mentioned in the notice by the landlord was incorrect. Learned Counsel for the Petitioner, however, did not press that the finding recorded by Respondent No. 1. on the rate of rent was incorrect. 9. The notice demanding arrears of rent cannot be held to be invalid merely because the amount mentioned in the notice by the landlord was incorrect. Learned Counsel for the Petitioner, however, did not press that the finding recorded by Respondent No. 1. on the rate of rent was incorrect. 9. In view of the above, the writ petition is partly allowed. The decree of the trial court for eviction is maintained but as regards the rate of rent, it shall be treated as Rs. 20 per month and the suit in respect of rent shall be decreed calculating the rent at the rate of Rs. 20 per month. The order of Respondent No. 1 is partly quashed with the direction given above. Parties shall bear their own costs.