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2005 DIGILAW 1051 (ALL)

Roshan Ali v. Mahendra Kumar Verma

2005-05-26

VIKRAM NATH

body2005
VIKRAM NATH, J. ( 1 ) THIS writ petition has been filed by the landlord against the judgment and order dated 2. 2. 2002, passed by the Additional District Judge, Court No. 24, Bijnor, whereby, the revision of the respondent tenant under Section 25 of the Provincial Small Causes Court Act, 1887 (hereinafter, referred to as the Act) was allowed and the suit of the petitioner landlord was dismissed after setting aside the judgment dated 29. 7. 1998, passed by the Judge, Small Causes court, Bijnor, decreeing the suit of the landlord petitioner for recovery of arrears of rent and ejectment. ( 2 ) THE dispute relates to a shop situated in Mohallah Bazar Chandpur, district Bijnor, which was in the tenancy of the respondent at a monthly rent of Rs. 300. The respondent tenant committed default in payment of rent, as alleged by the petitioner and, therefore, after terminating the tenancy and issuing notice of demand, the petitioner filed a suit for recovery of arrears of rent and for ejectment of the respondent tenant, which was registered as S. C. C, Suit No. 52 of 1993. According to the landlord, the tenant had not paid rent after March, 1991 and was, therefore, in arrears from the month of April, 1991. The notice terminating the tenancy and raising demand dated 26th August, 1992, is alleged to have been served upon the tenant on 31. 8. 1992. The tenant denied the allegations and alleged in his written statement that he had paid rent upto July, 1992 and had sent the rent for the months of August and September, 1992 by money order, but the landlord refused to accept the rent and, therefore, started depositing the same in the Court under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The suit was initially decreed ex parte on 1. 8. 1994. Thereafter, the tenant appeared and filed an application for recall of the ex parte decree, which was allowed. The tenant then filed his written statement on 24. 1. 1995 and, thereafter on 10. 3. 1997 the tenant deposited the rent in the said suit as provided under Section 20 (4) of the 1972 Act and claimed protection from eviction. The trial court vide judgment dated 29. 7. The tenant then filed his written statement on 24. 1. 1995 and, thereafter on 10. 3. 1997 the tenant deposited the rent in the said suit as provided under Section 20 (4) of the 1972 Act and claimed protection from eviction. The trial court vide judgment dated 29. 7. 1998, decreed the suit for recovery of arrears of rent from April, 1991 and also for pendente lite and future damages till the date of vacating the premises and also for ejectment of the tenant respondent. The trial court, inter alia, recorded the findings that the provisions of 1972 Act, were applicable in the present case, the tenant respondent had committed default in payment of rent and he was not entitled to benefit of section 20 (4) of the 1972 Act, as deposit of rent had not been made on or before first date of hearing, but had been made much later. ( 3 ) AGGRIEVED by the same the tenant respondent filed S. C. C. Revision under Section 25 of the provincial Small Causes Courts Act, 1887, which was registered as Revision No. 100 of 1988. The Additional District Judge, Court No. 4, Bijnor, vide judgment dated 2. 2. 2002 allowed the revision and set aside the judgment and decree of the trial court dated 29. 7. 1998 and dismissed the suit of the landlord holding that the tenant had not committed default and on the date of the notice the tenant had not paid arrears of 4 months rent and, therefore, the landlord could not prosecute the appeal under Section 20 (2) of the 1972 Act. ( 4 ) AGGRIEVED by the said judgment of the revisional court, the landlord has filed present writ petition. ( 5 ) I have heard Sri Deo Raj, learned Counsel for the petitioner, and Sri K. M. Garg, learned counsel for the respondent. ( 6 ) THE burden to prove that the tenant was in arrears primarily lies upon the plaintiff landlord. Once the plaintiff landlord has discharged the burden that there was default on the part of the tenant, the burden shifts on the tenant to disprove the claim of the landlord. ( 6 ) THE burden to prove that the tenant was in arrears primarily lies upon the plaintiff landlord. Once the plaintiff landlord has discharged the burden that there was default on the part of the tenant, the burden shifts on the tenant to disprove the claim of the landlord. The landlord is initially required to give a valid notice, then make necessary pleadings and finally prove the pleadings by means of evidence either oral or documentary in the present case, the landlord mentioned in the notice that rent was due from April, 1991, he also made necessary pleadings that rent was due from April, 1991, but at the same time, while proving the pleadings of default and the period of default the landlord completely failed. He has not stated on oath that the rent was due from 1. 4. 1991 but has only stated that their was default and has further stated that he did not know the period of default. He further stated that he did not have any records to prove the default and till which month the tenant had paid the rent. In the absence of there being clear cut and specific statement by the landlord that he had received rent up to particular period and the default was from after the particular period, the burden to prove the payment of rent and to prove that there was no default would not shift upon the tenant. The revisional court has considered the statement of the plaintiff and it observed that the plaintiff landlord failed to prove in his statement the pleadings that the rent was due from April, 1991. On the other hand,. the tenant had categorically stated that he had paid rent up to July, 1992 and for the months of August and september, 1992 he had sent the same by money order, which has not been accepted by the landlord and, therefore, he had started depositing the rent in the Court under Section 30 of the 1972 Act, w. e. f. August, 1992. It was on these pleadings and evidence that the revisional court held that the tenant was not in arrears of 4 months rent and as such could not be evicted under section 20 (2) of the 1972 Act. It was on these pleadings and evidence that the revisional court held that the tenant was not in arrears of 4 months rent and as such could not be evicted under section 20 (2) of the 1972 Act. ( 7 ) LEARNED Counsel for the petitioner has taken me through the records including the pleadings and statements and has strongly urged that it was for the tenants to prove that he was not in arrears and that the tenant has utterly failed to discharge his burden that he had paid rent upto date. It has been contended by the learned Counsel for the petitioner that the revisional court wrongly shifted the burden, upon the landlord, which was to be discharged by the tenant. His contention is that what is required to be proved by the tenant has been shifted upon the landlord. ( 8 ) ON the other hand, learned Counsel for the respondent has urged that not only the revisional court but even the trial court has taken note of the fact that the statement given by the plaintiff did not prove the pleadings to the effect that the tenant was in arrears of 4 months rent. ( 8 ) ON the other hand, learned Counsel for the respondent has urged that not only the revisional court but even the trial court has taken note of the fact that the statement given by the plaintiff did not prove the pleadings to the effect that the tenant was in arrears of 4 months rent. Further the relevant extract of the statement of the landlord was also shown to me as part of the counter-affidavit to show that the plaintiff has deposed with regard to payment of rent in a most casual manner the extract of the statement is quoted below: esjs ikl jlhn ds eqkuus ugha gsa] esaus eqkuus j[kusdh t:jr ugha le> h esjs ikl dksbz rgjhjh lcwr ugha gs fdizfroknh us eq> s fdjk;k vnk fd;k gs vksj dc rd dkfdjk;k vnk fd;k gs fdjk;k vnk;xh dk dksbz xokg ugha gs] esa fdjk;s dk dksbz fglkc fdrkc ugha j[krk] esa ;knnklrhkh ugha fy[krk] fdjk;s ukesa dh iqr ij Hkh esa fdjk;sdh vnk;xh dk bunzkt ugha djkrk] esjs ikl bl ckr dkdksbz lcwr ugha gs fd fdl eghus rd dk izfroknh us fdjk;k vnk fd;k gs] ;g ckr esaus nkok fy[krsa le; odhylkgc dks crk;h Fkh fd izfroknh jlhn [kqn fy[kdj ykrkfkk A ;g ckr vxj nkos esa uk fy[k gks rks otg ugha crkldrk] vkt es igyh ckj gh dg jgk gwwa] ;g ckr esausuksfvl esa Hkh ugha fy[kk;h gsa ( 9 ) IN the facts and circumstances I find force in the argument of the respondent that the plaintiff-petitioner failed to prove the case of default. ( 10 ) FURTHER, learned Counsel for the respondent has relied upon a Full Bench decision of this court rendered in the case of Gokaran Singh v. Ist Additional District Judge 2000 (1) ARC 635, in which the Full Bench while answering question No. 3, relating to discharge of burden of proof, held that entire burden is on the plaintiff landlord to discharge and prove that the tenant is in arrears, it is only after the successful discharge of burden by the plaintiff landlord that the burden shifts on the tenant to rebut and to disprove the claim of the landlord and prove that there is no default on his part. ( 11 ) THERE cannot be any doubt that the plaintiff has utterly failed to prove his case, specially as to whether there is arrears or not on his own and cannot take any advantage of failure in discharging this burden of proof by finding any kind of fault with the pleadings and evidence of the defendant. Tenant respondent had taken consistent stand in the pleading and has also proved the written statement. The revisional court has rightly relied upon the same and allowed the revision. ( 12 ) I do not find any infirmity in the judgment of the revisional court. ( 13 ) THE petition, accordingly, lacks merit, and is dismissed. . .