Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 499 (ALL)

YOGENDRA PAL SINGH v. PREM SINGH

2001-05-17

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE premises in dispute is a room in accommodation No. 2/4 Kishanpur, Ramghat Road, aligarh. The respondent is the landlord of the same and the petitioner was his tenant since 1982. The landlord-respondent filed S. C. C. Suit No. 79 of 1994 against the petitioner for eviction on the ground of the default fn payment of rent. The petitioner contested the suit and alleged that he sent the rent by money orders and ultimately deposited the rent under Section 30 (1) of U. P. Act no. XIII of 1972 and that there is no default in payment of rent. It was further pleaded that the rate of rent is Rs. 150 per month. The suit for eviction was decreed on 28. 8. 1999 by judgment, annexure-6 to the petition by J. S. C. C. . Aligarh, on the finding that the rate of rent is Rs. 300 per month and that there is default in the payment of rent. Against that order, the petitioner preferred s. C. C. Revision No. 42 of 1999 which has also been dismissed on 8. 3. 2001 by IVth Additional district Judge, Aligarh, by judgment, Annexure-9 to the petition. The petitioner, therefore, has invoked extraordinary Jurisdiction of this Court under Article 226 of the Constitution of India. ( 2 ) I have heard Sri A. K. Aditya, learned counsel for the petitioner and Sri M. K. Gupta, learned counsel for the respondent. ( 3 ) IT is contended by the learned counsel for the petitioner that the rate of rent is Rs. 150 per month ; that there is no default in payment of rent ; that tenancy was illegal being without allotment and, therefore. J. S. C. C. has no Jurisdiction to pass the decree for eviction. ( 4 ) I have considered the arguments. There is concurrent findings of both the Courts below that the rate of rent is Rs. 300 per month and the said findings cannot be disturbed in this petition. ( 5 ) REGARDING default, it may be mentioned that no doubt it is correct that the petitioner sent the rent by money orders and thereafter, he deposited the rent under Section 30 (1) of U. P. Act No. XIII of 1972. However, it is admitted that the notice of demand was sent by the respondent on 31. 3. ( 5 ) REGARDING default, it may be mentioned that no doubt it is correct that the petitioner sent the rent by money orders and thereafter, he deposited the rent under Section 30 (1) of U. P. Act No. XIII of 1972. However, it is admitted that the notice of demand was sent by the respondent on 31. 3. 1994 which was served on the petitioner. The petitioner alleged that he sent rent by money order on 8. 5. 1994 and thereafter, deposited the rent under Section 30 (1) of the Act as the rent was refused by the respondent. However, no money order coupon was produced. The deposit under Section 30 (1) of the Act was held to be invalid for the reason that after the service of notice of demand the rent was not refused by the respondent-landlord : that, therefore, there is clear default in the payment of rent. ( 6 ) THE learned counsel for the petitioner has also argued that the notice was invalid. However, this point is not available to the petitioner in this petition. The copy of the judgment of the revisional court. Annexure-9 to the petition shows that in the revision only two points were pressed. The first was that the notice was invalid as the rent was claimed at a higher rate of Rs. 300 per month. The second point raised before the revisional court was that in view of the decision of the Full Bench of this Court in Nootan Kumar v. A. D. J. , Banda, 1993 ACJ 729, the decree for ejectment against the petitioner cannot be passed in the suit. ( 7 ) I have already said that the finding that the rate of rent is Rs. 300 per month has become final by the concurrent findings of both the courts below, therefore, the only point that arises for decision in this case is whether the suit is not maintainable in view of the decision of the case of nootan Kumar (supra ). ( 8 ) IT has been argued by Sri A. K. Aditya, learned counsel for the petitioner that the petitioner was given the shop in the year 1982. ( 8 ) IT has been argued by Sri A. K. Aditya, learned counsel for the petitioner that the petitioner was given the shop in the year 1982. Admittedly, the U. P. Act No. XIII of 1972 was applicable ; that there is no allotment order in favour of the petitioner : that, therefore, the tenancy was invalid and in view of the decision of the Full Bench in the case of Nootan Kumar (supra), the suit for eviction cannot be decreed. ( 9 ) THE perusal of the Judgment of the revisional court, Annexure-9 to the petition shows that this point was considered in detail by the revisional court. It was observed that in the written statement, the petitioner admitted the tenancy and did not allege that the tenancy is illegal or that the suit is not maintainable ; that this point was raised for the first time in the revision which is not permissible. ( 10 ) ON this point, learned counsel for the respondent has referred to the decision of this Court in narain Das v. Additional District Judge, 1996 (2) ARC 198. After considering several decisions of this Court, it was held that if no plea is taken in the W. S. regarding illegality of tenancy and unenforceability of agreement of tenancy, then such plea cannot be taken in the writ petition. Similar view was taken in Brij Nandan Sahai Hajela v. IIIrd Additional District Judge, 1996 (1)ARC 165. The last case referred to is recent case of this Court is Mohd. Tayyab v. Additional district Judge, 1999 (2) ARC 748. In the cited case, the tenant admitted the tenancy in the written statement. Therefore, it was held that he cannot be permitted to plead that he is unauthorised occupant and suit is not maintainable. ( 11 ) IN view of this, I am of the view that the petitioner is not entitled to the benefit of the decision of Full Bench of this Court of Nootan Kumar (supra ). The tenancy is admitted to the petitioner. Therefore, I do not find any ground to interfere in the concurrent findings of both the courts below. ( 12 ) THE petition is without merit and is hereby dismissed. The tenancy is admitted to the petitioner. Therefore, I do not find any ground to interfere in the concurrent findings of both the courts below. ( 12 ) THE petition is without merit and is hereby dismissed. ( 13 ) AFTER the dismissal of the writ petition, the learned counsel for the petitioner has requested for leave to appeal before the Honble Supreme Court against the decision and for stay of eviction for limited period to provide time to the petitioner to obtain stay order from the Honble supreme Court. I have considered the argument. This case does not involve any question of constitutional law or substantial question of law. Therefore, the leave prayed for is refused. The request for stay is also refused. .