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2003 DIGILAW 166 (UTT)

Ajai Agrawal v. Har Govind Prasad Singhal

2003-09-05

M.M.GHILDIYAL

body2003
JUDGMENT M.M. Ghildiyal J. This is a tenant's petition against the order dated 24.04.1996 passed by the Judge Small Cause Court/Civil Judge (Senior Division) Nainital decreeing the suit of the landlord for eviction of the tenant from the shop in dispute on the ground of default in payment of rent and order dated 13.08.1999 of the Additional District Judge, Nainital dismissing the revision filed by the tenant. The writ petition was filed before the Hon'ble High Court of Judicature at Allahabad and was numbered as writ petition no. 36462 of 1999. After the creation Uttaranchal the writ petition was transferred to this court and was re-numbered as writ petition no. 4053 (MIS) of 2001. 2. The brief facts of the case are that one Sri Jagdish Prasad; father of the petitioners no. 1 to 8 was let out the shop in dispute in 1980 on an agreed rent of Rs. 600.00 per year. The shop in dispute was in dilapidated condition and as such the tenant requested the land lord to get the shop plastered and fixed a shutter in the shop in dispute which the landlord did not agree and asked the tenant to get it done at his own costs and consequently increased the rent to Rs.1200.00 per year which was agreed by the tenant. The tenant got a heart attack at the relevant time and consequently could not fix the shutter and repaired the shop as agreed and got it done in 1989. However, the landlord insisted to pay increased rent at the rate of Rs. 1200.00 per year since 1986. According to the tenant the increased rent was to be paid in view of the improvement in the shop which could not be done till 1989 and consequently the landlord agreed to receive rent at the rate of Rs. 75.00 per month instead of Rs.100.00 per month. After 1989 when the shop was repaired and the shutter was fixed the tenant continued to pay Rs. 1200.00 per year as rent. The landlord filed a suit for ejectment claiming the rent from the tenant at the rate of Rs.200.00 per month from February 1989 and Rs. 400.00 per month from January 1990. The tenant deposited rent at the rate of Rs. 100.00 per month. 1200.00 per year as rent. The landlord filed a suit for ejectment claiming the rent from the tenant at the rate of Rs.200.00 per month from February 1989 and Rs. 400.00 per month from January 1990. The tenant deposited rent at the rate of Rs. 100.00 per month. While decreeing the suit for the recovery of arrears of rent and ejectment of the petitioners the Court held that the rent agreed was Rs. 200.00 per month and thereafter Rs. 400.00 per month from January 1990. Aggrieved with this order the revision was filed. The revisional court too dismissed the revision. Against the dismissal order of revision the petitioners-tenants have preferred this petition. 3. Heard Sri Sharad Sharma, learned counsel for the petitioners and Sri V.N. Agrawal learned counsel for the respondents. 4. The learned counsel for the petitioners has challenged the impugned order on various grounds. The first submission of the learned counsel for the petitioners is that there can be no enhancement of rent by oral agreement in view of the provisions of section 16(10) of Uttar Pradesh Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) which is quoted as under :"Nothing in sub-section (9) shall be construed to require the District Magistrate to take any evidence or hold any formal inquiry before fixing the presumptive rent of the building allotted, and the amount mentioned in the allotment order as presumptive rent shall be subject any agreement in writing between the parties or to any subsequent determination of standard rent after formal inquiry under section 9 : Provided that until the presumptive rent is so revised by agreement or by an order under Section 9, the tenant shall continue to be liable to pay rent according to the presumptive rent specified in the allotment order, so however, that any subsequent order under section 9 shall relate back to the date of commencement of the tenancy. " 5. The aforesaid section provides that the presumptive rent mentioned in the allotment order shall be subject to any agreement in writing between the parties or to any subsequent determination of standard rent after formal enquiry under section 9 of the Act. The contention of the petitioners is that there was an allotment order in favour of the petitioners and the presumptive rent can only be enhanced by an agreement between the parties in writing. The contention of the petitioners is that there was an allotment order in favour of the petitioners and the presumptive rent can only be enhanced by an agreement between the parties in writing. The proviso specifically,' states that until the presumptive rent is so revised by an agreement or by an order under section 9 the tenant shall continue to be liable to pay rent according to presumptive rent specified in the allotment order, so however, that any subsequent order under section 9 shall relate back to the date of commencement of the tenancy. The second submission of the learned counsel for the petitioners is that earlier in the year 1986 the landlord issued a notice under section 106 of the Transfer of Property Act and the landlord took no action thereafter. The notice of 1986 under section 106 of the Transfer of Property Act was waived by the landlord and as such in view of the waiver the landlord was not entitled to raise further the same plea of enhancement of rent’ in the notice issued fn the year 1992 as after issuing notice under section 106 of the Transfer of Property Act rent was paid by the tenant and that too was accepted by the landlord. He has further submitted that he has already deposited the entire rent admissible on the date of hearing and according to him the first date of hearing would be the date on which the court has applied its mind and he was so entitled to get the benefit of section 20(4) of the Act. 6. Sub-section 10 of section 16 of the Act is not applicable to the facts of the present case. Further, there is no bar in entering into an oral agreement 7. In the notice dated 21.03.1992 there is a specific mention that in 1989 structural alterations were made with a condition that from January 1990 the tenant shall be paying Rs. 400.00 per month. In reply to the notice dated 20.06.1992 there is an admission that since the shop was in a dilapidated conditions, therefore, the petitioner himself got it repaired and made the structural alterations in the year 1989-90. In paragraphs no. 3 and 4 of the written statement the petitioners have admitted that in the year 1989 shutters were fitted. 8. In reply to the notice dated 20.06.1992 there is an admission that since the shop was in a dilapidated conditions, therefore, the petitioner himself got it repaired and made the structural alterations in the year 1989-90. In paragraphs no. 3 and 4 of the written statement the petitioners have admitted that in the year 1989 shutters were fitted. 8. From the pleadings of the parties it appears that the parties from time to time have been settling rent. According to the plaint averments (a) At the time of letting of the accommodation the parties orally agreed that the rent will be Rs. I 50.00 per month till March 1986. (b) From 1st of April 1986 to 31st of I March 1989 Rs. 100.00 per 1 month. (c) From 01.04.1989 onwards Rs. 200.00 per month. (d) From 1st of January 1990, i.e. after the renovation in 1989 Rs. 400.00 was settled per month as rent. 9. Both the courts below have come he to the conclusion that the petitioner lid could not prove that in 1989 the shutters were not fitted but on the contrary it- the tenant has admitted that the shutters were fitted in the year 1989. Since of the matter of increase of rent was mentioned in the notice and with effect from In March 1989 rent at the rate of Rs. , Id 200.00 per month was alleged to have 1- been paid. No reply was given to this notice nor any objection was made. As )f such both the courts have reached to the )f conclusion that the tenant accepted the increased rent. 10. It is well established that what2 ever protection the Rent Control Act is 1 giving. It is not a blanket protection. Payment of rent is the basis minimum has to be complied with by the tenants. Rent Control Acts do not contemplate that the tenant should continue with non-payment of rent. 11. I am supported by the judgment of Apex Court in Madan Mohan and others Versus Mohan Kumar Sood, reported in 1993 (1) J. T. page 162. Payment of rent is the basis minimum has to be complied with by the tenants. Rent Control Acts do not contemplate that the tenant should continue with non-payment of rent. 11. I am supported by the judgment of Apex Court in Madan Mohan and others Versus Mohan Kumar Sood, reported in 1993 (1) J. T. page 162. Hon'ble Supreme Court held that the Rent Acts do not contemplate that if one takes the house on rent he can continue to enjoy the same without payment of rent Relying upon the aforesaid judgment of the Apex Court the Allahabad High Court in Mohammad Siddque Versus II Additional District Judge, Unnao has held as under:" Para 21:- As pointed out by the Apex Court in its decision in the case of Madan Mohan and another us. Mohan Kumar Sood, reported in 1993 (1) J.T. 162,1993 SCFBRC 133 (SC), whatever protection the Rent Control Acts give they do not give blanket protection for non-payment of rent. This basis 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." 12. The learned counsel for the petitioner has further submitted that after the denial of defendant that any rent is due the burden of proof relating to the existence of the arrears of rent stood shifted on the plaintiff. So far as this aspect is concerned, the Apex Court in its decision in the case of Mohan Lala Vs. Laxman Das, reported in 1991 HRR 510, has observed that the onus to show payment lies on tenant and the mere oral testimony is not sufficient to discharge the same. 13. The' learned counsel for the petitioner in order to prove the first date of hearing has relied on the following cases : 1. Allahabad Rent Cases 1996 (2) page 297 Raj Kapoor Versus VI Addl. District Judge, Kanpur Nagar and others, 2. Allahabad Rent Cases 1993 (2) page 451, Siraj Ahmad Siddiqi Versus Prem Nath Kapoor 3. Allahabad Rent Cases 1995 (1) page 563, Advaita Nand Versus Judge Small Cause Court, Meerut and others, 4. Allahabad Rent Cases 2002 (2) (SC) page 160 Ashok Kumar and others Vs. Rishi Ram and others 5. Allahabad Rent Cases 1983 (2) page 404 Basu Dev Sahai Versus Brij Mohan Lal. 14. Allahabad Rent Cases 1995 (1) page 563, Advaita Nand Versus Judge Small Cause Court, Meerut and others, 4. Allahabad Rent Cases 2002 (2) (SC) page 160 Ashok Kumar and others Vs. Rishi Ram and others 5. Allahabad Rent Cases 1983 (2) page 404 Basu Dev Sahai Versus Brij Mohan Lal. 14. None of the judgments supports the case of the petitioner in as much as admittedly the amount as per; demand notice as well as according to the plaint averments has not been deposited. 15. So far as the deposit under section 20(4) of the Act no. 13 of 1972 is concerned there cannot be denial of this fact that the petitioners have not deposited the amount as required by the plain. tiff in the notice as well as in the plaint. No benefit of section 20(4) of the Act is enviable to the petitioner 16. Both the courts below have come to the conclusion that according to the own admission structural alterations were made by fitting shutters. I find substance in the submission of the learned counsel for the respondent that the parties agreed to enhance the rent time to time and the petitioners have not paid the same till the first date of hearing. The writ petition is concluded by findings of facts. No interference can be made under Article 226/227 of the Constitution of India. 17. For the reasons stated above, the writ petition fails and is dismissed. However, the petitioners are allowed six months time to vacate the premises in question provided an undertaking is given on affidavit by the petitioners tenants within three weeks from today before the court below that the petitioners will vacate the premises within six months.