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2007 DIGILAW 2060 (ALL)

JAI GOPAL JADEJA v. RAJIV

2007-08-07

RAKESH TIWARI

body2007
JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard the learned Counsel for the parties and perused the record. 2. The facts culled out from the writ petition are that suit No. 4 of 1994 was filed by Darshan Das Bhasin against the petitioner-tenant Jai Gopal Judeja for ejectment and arrears of rent. 3. The petitioner claims to be a tenant in the shop in dispute initially @ Rs. 20 per month, which was increased from time to time and lastly at the time of termination of the tenancy he was paying 125/- per month to the landlord as rent. It is also claimed that rent was inclusive of house taxes and water taxes. 4. The suit was filed for appears and eviction of the tenant on the ground that the petitioner had defaulted in payment of rent as he did not pay house taxes and water taxes which is inclusive of the rent as well as rent for period of one year since 1.4.1990. 5. From the perusal of the claim the landlord claimed only one year arrears of rent. 6. The petitioner contested the suit and filed his written statement. He also filed the receipt as well as cheque paper No. 63-Ga which had bounced back and on its back side a receipt was executed to show that the rent for the month of April, May and June, 1990 had been paid in cash. According to the Counsel for the petitioner this showed that the claims of the petitioner was incorrect as he had denied payment of rent but had accepted the rent of April, May and June, 1990 in cash. It is submitted by the Counsel for the petitioner that the rent since 1.4.1990 is admittedly paid. 7. It is submitted by the learned Counsel for the petitioner that on receipt of notice on 30.4.1993, the petitioner sent money order for the month of April, 1993 but as it was refused, the petitioner deposited the same under Section 30(1) of the U.P. Act No. 13 of 1972 in Misc. Case No. 32 of 1993 in which notices were issued but the landlord neither appeared nor opposed the arrears of rent, hence the Courts below by order dated 20.8.1994 permitted the petitioner to deposit the rent. It is stated that the suit was filed on 7.4.1994 and as such it cannot be said that the petitioner was in any arrears of rent. It is stated that the suit was filed on 7.4.1994 and as such it cannot be said that the petitioner was in any arrears of rent. 8. It is urged that in the aforesaid circumstances, learned Judge Small Causes Court has illegally decreed the suit vide order dated 23.4.2005. 9. It appears from the perusal of the judgment that the Courts below framed the following issues : 1. YAH KI PRATIWADI DWARA KIRAYA ADAIGI MEIN VYATIKRAM KARIT KIYA GAYA HAI YADI HAN TO PRABHAV. 2. YAH KI PRATIWADI NE VAIDH NOTICE PRAPT KIYA YADI HAN TO PRABHAV. 3. YAH KI PRATIWADI DHARA 20(4) U.P. ADHINIYAM SANKHYA 13/1972 KA LABH PANE KA ADHIKARI HAI, YADI HAN TO PRABHAV. 4. ANUTOSH. 10. In respect of issue No. 1 the Courts below relied upon Om Prakash Gautam v. Ist Additional District Judge, Aligarh and others, 1989(2) ARC 108, wherein it was held that the tenant had come out with the case that he had paid the rent to the landlord but non-filing of the receipt in support thereof, would give rise to presumption that he has not paid any rent particularly in absence of any other evidence as the burden of proof in the circumstances would be on the tenant. 11. The Court in the aforesaid circumstances found that as tenant had not made any payment of rent to the petitioner regularly and was in default thereof. 12. As regards issue No. 2 is concerned the Court on the basis of evidence on record held that the tenancy of the petitioner was determined by a valid notice. 13. Issue No. 3 has been decided by the Courts below holding that as the petitioner had not deposited the arrears of rent on the first date of hearing, hence he is not entitled to the benefit of Section 20(4) read with Section 30(1) of the U.P. Act No. 13 of 1972. 14. Lastly the Court held in the circumstances that the petitioner is liable to be evicted in view of the decision rendered on issue Nos. 1, 2 and 3 and the landlord is entitled to arrears rent @ Rs. 125/- per month in addition to house tax and water tax. 15. Counsel for the petitioner has not argued any other point nor has able to show any illegality or infirmity in the order. 16. 1, 2 and 3 and the landlord is entitled to arrears rent @ Rs. 125/- per month in addition to house tax and water tax. 15. Counsel for the petitioner has not argued any other point nor has able to show any illegality or infirmity in the order. 16. From the perusal of the record and the judgment of the Courts below, I find that the landlord did not deny the fact that he had not issued any notice after 1.4.1995. Rather his case is that tenant had not paid any rent thereafter. The Courts below had rightly come to the conclusion that it was open for the tenants to have proved his case that he had paid rent to the landlord but no receipt for the same had issued. 17. Admittedly the petitioner had submitted that he had deposited rent and even the landlord had admitted for payment of rent for two years for which no receipts had been issued by him. When it is admitted by the landlord that he had not issued receipts for specified period of two years for which he had been paid rent, shows bona fide and truthfulness of the landlord is to be declared and it cannot be said that he denied the payment of rent by the tenant to him for subsequent period. This rather strengthens the case of the landlord that since no rent was paid to him for subsequent period he neither admitted nor issued any notice to the tenant in this regard, hence the burden of proof was upon the tenant to have proved payment of rent to the landlord for the subsequent period in view of law laid down in Om Prakash Gautam (supra). 18. Moreover, Section 7 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides water tax as a part of the rent. No agreement have been shown by the petitioner to the contrary hence the provision of Section 7 would be squarely applicable. The Courts below, therefore, have rightly came to the conclusion that water tax was part of rent payable to the landlord and that tenant committed in default in payment thereof. 19. For the reasons stated above the writ petition is dismissed. No order as to costs. Petition Dismissed. ————