Research › Search › Judgment

Allahabad High Court · body

2006 DIGILAW 2696 (ALL)

DHARAM PRAKASH GUPTA v. ADDITIONAL DISTRICT JUDGE

2006-11-06

RAKESH TIWARI

body2006
RAKESH TIWARI, J. Heard Sri Kshitij Shailendra, Counsel for the petitioners, Standing Counsel and perused the record. 2. This is landlords petition. Late Dharam Prakash Gupta, predecessor-in-interest of the petitioners was owner and landlord of the disputed shop situate in Mohalla Reti Street, Chaumukhapul, Moradabad and late Mahmood Hasan, father of respondent Nos. 2 to 10 was tenant on a monthly rent of Rs. 15. The tenancy used to commence on 19th day of each month and expire on 18th day of the succeeding month. 3. The tenant deposited a sum of Rs. 330/- under Section 30 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) in Misc. Case No. 136 of 1988 towards rent for the period 19-3-1988 to 18-1-1990. Late Dharam Prakash Gupta, landlord contested the case on the ground that rent was never refused by him and the same must be paid to him, in cash. 4. Rent was not paid by late Mahmood Hasan, tenant to the landlord, as such, the tenancy was determined through notice dated 22-8-1990. On non-compliance of notice dated 22-8-1990 by the tenant, landlord instituted S. C. C. suit No. 108 of 1990 for ejectment of the tenant and arrears of rent together with expenses of Counsel and damages. 5. In the meantime, the tenant Sri Mahmood Hasan died on 1-1-1991 and respondent Nos. 2 to 11 were substituted in his place. Respondent Nos. 2, 3 and 6 contested the suit by filing their written statement denying the plaint allegations. 6. It is alleged by the petitioners that a fictitious and bogus tender together with vakalatnama dated 1-1- 1991 were field in the Court of judge Small Causes Court, Moradabad showing that Sri Rama Shanker Gupta Advocate was engaged by deceased tenant. No thumb impression on tender was affixed and the Vakalatnama contained thumb impression of some other person allegedly that of late Mohd. Hasan. The Presiding Officer signed the tender on 3-1-1991 permitting Sri Rama Shankar Gupta, Advocate to deposit the sum on behalf of the deceased tenant. The claim of the petitioners is that the tender did not bear thumb impression/signatures of late Mahmood Hasan but it was signed by Sri R. S. Gupta, Advocate, as such, sum of Rs. Hasan. The Presiding Officer signed the tender on 3-1-1991 permitting Sri Rama Shankar Gupta, Advocate to deposit the sum on behalf of the deceased tenant. The claim of the petitioners is that the tender did not bear thumb impression/signatures of late Mahmood Hasan but it was signed by Sri R. S. Gupta, Advocate, as such, sum of Rs. 500/- purporting to be deposit under Section 20 (4) of the Act was invalid and the tenants were not entitled to the benefit of such deposit. 7. The suit was partly decreed vide judgment and decree dated 13-12-1994 by Judge Small Causes Court, Moradabad. While decree in respect of arrears of rent was passed, suit for eviction of the tenant was dismissed. 8. Aggrieved, the landlord filed S. C. C Revision No. 114 of 1995 challenging the validity and correctness of the judgment and decree dated 13-12-1994 passed by the trial Court, which has been dismissed vide impugned judgment and order dated 2-3-2002 by the revisional Court and hence this writ petition. 9. From perusal of impugned judgment, it appears that burden of proving time of death of tenant-Sri Mahmood Hasan has been shifted on the landlord in violation of provisions of Section 101 of the Evidence Act that the tenants-respondent Nos. 2 to 11 were claiming benefit of deposit and burden to prove this fact was on them and not on the petitioners. As the tenant Sri Mahmood Hasan died on the evening of 1-1-1991, deposit made by an Advocate, who stood ceased to be his Counsel on 1-1-91 as tender was recorded on 2-1-1991, was not a valid deposit. Section 101 of the Evidence Act is as under: "whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove those facts exist. " When a person is bound to prove existence of any fact, it is said that burden of proof lays on that person. " 10. Section 102 of the Evidence Act is also relevant for the purposes of this case, which reads as under: "the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. " 11. " 10. Section 102 of the Evidence Act is also relevant for the purposes of this case, which reads as under: "the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. " 11. From the impugned judgment passed by the revisional Court it is revealed that Munsarim had recorded 2-1-1991 as the date of presentation of the tender, as such, 2-1-1991 would be deemed to be presumed as the correct date of presentation of tender according to provisions of Rule 538 of General Rules (Civil), 1997, has been brushed aside on the ground that in cross- examination, the landlord admitted that tender and vakalatnama had been presented in the Court on 1-1-1991. 12. After death of Sri Mahmood Hasan on 1-1-1991, his heirs automatically became the tenants by operation of law and could have submitted tender for deposit on 2-1-1991 when the deposit was made by Advocate on behalf of a dead person cannot be held to be valid deposit. In Chunni Lal & Ors. v. Ramesh Chandra & Ors. , 1993 AWC 404, it has been held that a person does not get a right to deposit money merely on the presentation of tender in Court. 13. Case has been taken up in the revised list. Heard Counsel for the petitioners. No one has put in appearance on behalf of the respondents despite notice to engage another Counsel. Vide order dated 29-8-2006, notices on respondent No. 2 to 11 are deemed to be sufficient. 14. In the absence of any counter-affidavit, the averments made in the writ petition having not been controverter, are treated to be correct. 15. For the reasons stated above, the impugned judgments are not sustainable in law and they deserve to be quashed. 16. Accordingly, the writ petition is allowed. Judgments and decrees dated 2-3-2002 passed by respondent No. 1 in S. C. C. Revision No. 12 of 1995 and dated 13-12-1995 passed by respondent No. 12 in S. C. C case No. 108 of 1990 are quashed. The respondent-tenants will vacate the disputed accommodation and handover peaceful possession of the same to the landlords within two months from today and also make payment of arrears for rent to the landlords within the same period. The respondent-tenants will vacate the disputed accommodation and handover peaceful possession of the same to the landlords within two months from today and also make payment of arrears for rent to the landlords within the same period. In cace the disputed accommodation is not vacated and arrears of rent are not paid within the above stipulated period, the tenants will be liable to be evicted by coercive process in accordance with law with the aid of local Police and the arrears of rent shall be recoverable as arrears of land revenue. Petition allowed. .