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Uttarakhand High Court · body

2007 DIGILAW 244 (UTT)

LEELADHAR PARASAD v. A. G. SANWAL

2007-05-07

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri B.D. Upadhyay, counsel for the revisionist and Sri Sarvesh Agarwal, counsel for the respondents. 2. By the present civil revision filed under Section 25 of the Provincial Small Courts Act, 1887, the revisionist has prayed for setting aside the judgment and order dated 28.7.2005 passed by the District Judge, Nainital, whereby the suit No. 24 of 1977 Smt. A.G. Sanwal & Ors. Vs. Leeladhar Prasad has been decreed. 3. Briefly stated, the suit was filed by the plaintiff-respondents being Suit No. 24 of 1977 praying for arrears of rent, taxes, damages and ejectment. In paragraph 8 of the plaint, it has been stated as under:- “8. That the details of arrears of rent, taxes and damages payable by the defendant till the date of the suit are as follows:- (a) arrears of rent 2.2.1995 to 22.5.1997 Rs. 8,016,166 (b) arrears of taxes from 1.12.1986 to the date of the suit (water tax @ Rs. 12.50% of the rent, scavenging tax @ Rs. 12.00% of the rent and sewer tax @ Rs. 3.00% of the rent. Rs. 11,577=03 (c) damages at least @ Rs. 100.00 per day from 23.5.1997 to the date of the suit. Rs. 11,700=00” 4. In paragraph 7 of the plaint, it has been stated that the plaintiff no. 1 has received a notice under Section 30(5) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 to the effect that the defendant has deposited a sum of Rs. 15,600/- on 19th June, 1997 in the Court of Munsif, Nainital in Misc. Case No. 3 of 1987 towards the rent of the shop in dispute payable from 2nd February, 1992 to 1st February, 1995. Further the plaintiff has also claimed the water tax, sewer tax as mentioned in paragraph no. 3 of the plaint. It has been stated in the plaint that the rent is due from 1st December,1986 onwards. Paragraph 3 of the plaint is quoted below: “3 That the defendant failed to pay the arrears of rent taxes of the shop in dispute from 1.12.1986 onwards to the plaintiffs and rendered himself liable to be evicted from the shop in dispute and to pay the arrears of rent and taxes together with interest thereon @ Rs. 18% per annum. The taxes of the shop in dispute are payable as follows :- “(a) Water tax @ Rs. 18% per annum. The taxes of the shop in dispute are payable as follows :- “(a) Water tax @ Rs. 12.50% of the rent. (b) Scavenging tax @ Rs. 12.00 of the rent and (c) Sewer tax @ Rs. 3.00% of the rent.” 5. The defendant has contested the case by filing a written statement. In paragraph 9 of the written statement, it has been stated that the plaintiff has paid the rent to the extent of Rs. 325/- per month, which was inclusive of taxes and in order to avoid the eviction proceedings, he has deposited the rent under Section 30 of the U.P. Act No. 13 of 1972. He continued to deposit the rent in the Court and therefore, has prayed for adjustment of the said amount. In paragraph 15 of the written statement, it has been stated that the defendant was regularly paying the rent to the plaintiffs till Nov. 85 and when the tendered the rent for the months of Dec. 85 and January and February, 1986 to the plaintiff, the plaintiff refused to take the same, therefore, the same was sent by the defendant by money order and the same was refused too by the plaintiffs. The defendant has stated that it is wholly false allegation that he has not paid the rent from 1st December, 1986. 6. In paragraph 19 of the written statement it has been stated that the defendant is only liable to pay the rent and mot the taxes as claimed by the plaintiffs as he is regularly paying the rent and he also deposited the rent, taxes and other expenses as claimed by the plaintiffs since 02.02.1995 on the first date of hearing so he is not liable to be evicted and is entitled to get the benefit of Section 20(4) of the U.P. Act No. 13 of 1972. 7. The Judge Small Cause Court has framed as many as six points for determination to the following effect :- “(1) Whether the defendant is liable to pay rent @ 325/- per month apart from taxes, electricity charges and water charges, if yes, its effect? (2) Whether the defendant has been a defaulter in paying the rent, if yes, its effect? (3) Whether the defendant is entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972, if yes, its effect? (2) Whether the defendant has been a defaulter in paying the rent, if yes, its effect? (3) Whether the defendant is entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972, if yes, its effect? (4) Whether the defendant has made any alteration in the user of the property in dispute, if yes, its effect? (5) Whether the defendant has done some addition and alteration after taking the property in dispute on rent, if yes, its effect? (6) Relief?” 8. So far as Point No. 1 is concerned, a finding has been recorded that the rate of rent is Rs. 325/- per month plus 12.5% as taxes total Rs. 365.62 paisa. 9. According to the counsel for the plaintiff, Rs. 365 is excluding the taxes, whereas the defendant has stated that it is inclusive of taxes. 10. So far as Point Nos. 2 and 3 are concerned, the trial Court has recorded a finding that the total amount which has been deposited is Rs. 33,150/- whereas the amount which is required to be deposited is Rs. 20,037/- and as such the benefit of Section 20(4) of U.P. Act No. 13 of 1972 has not been extended to the defendant. Defendant is entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972 has not been extended to the defendant. 11. Counsel for the revisionist Sri L.P. Naithani, Sr. Advocate, assisted by Sri B.D. Upadhyaya, has referred the judgment of Kailash Chandra and another Vs. Mukundi Lal and others (2002) 2 SCC 678, where the Apex Court has observed as under :- “8. A perusal of sub-section (4) of Section 20 of the Act, no doubt indicates that the deduction of an amount from the total amount due is permissible only to the extent of deposit made under sub-section (1) of Section 30. It does not mention about the deposits made under sub-section (2) of Section 30 of the Act.” 12. On the other hand deposits have been challenged on the ground that the deposits under Section 30(1) of the U.P. Act No. 13 of 1972 is wholly without jurisdiction. 13. In Smt. Mridula Dayal v. VIth Addl. It does not mention about the deposits made under sub-section (2) of Section 30 of the Act.” 12. On the other hand deposits have been challenged on the ground that the deposits under Section 30(1) of the U.P. Act No. 13 of 1972 is wholly without jurisdiction. 13. In Smt. Mridula Dayal v. VIth Addl. District Judge, Allahabad 1986 (2) ARC 132, the Division Bench of Allahabad High Court has observed as under : “Learned Single Judge hearing the writ petition, therefore, felt that it would, in the circumstances of the case, be appropriate to obtain the opinion of a larger Bench on following question :- “Whether a tenant can claim deduction of invalid deposit made under Section 30 of the U.P. Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972 for taking advantage of sub-section (4) of Section 20 of the said Act.” 7. Section 20(1) of the Act inhibits the right of a landlord to file a suit for eviction of a tenant on one or more of the grounds enumerated in sub-section (2) thereof. According to this sub-section, one such ground available to the landlord for filing suit for eviction of a tenant after determination of his tenancy, as enumerated in clause (a) of sub-section (2) of Section 20 is, that the tenant is in arrears of rent for not less than four months and he has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Sub-section (4) of Section 20 provides that in any suit for eviction on the aforesaid ground, if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from his (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of 9% per annum and landlord’s costs of the suit in respect thereof, after deducting there from any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground pass an order relieving the tenant against his liability for eviction on that ground. 8. 8. Sub-section (1) of Section 30 provides that if any person claiming to be a tenant of a building tenders any amount as rent in respect to building to its alleged landlord and the alleged landlord refused to accept the same then the former any deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. Sub-section (6) of Section 30, then creates a legal fiction whereunder the amount so deposited shall be deemed to have been paid to the person in whose favour it had been deposited. 9. The rationae behind the provision contained in Section 20 (4) of the Act permitting the tenant to deduct the amount deposited by him under sub-section (1) of Section 30, from out of the rent, interest and costs payable by him is to be found in sub-section (6) of Section 30, which creates a fiction to the effect that deposits made under sub-section (1) of Section 30, are deemed to be payments made to the concerned person. The fiction under sub-section (6) of Section 30, arises where the deposits have been made by the tenant in the circumstances enumerated in sub-section (1) of Section 30, countenances deposits being made by a person in the prescribed manner— (i) if such person claims to be a tenant of the building, (ii) he tenders any amount as rent in respect of that building to the alleged landlord, and (iii) the alleged landlord refused to accept the same. 12. If, however, by using the words “invalid deposit made under Section 30 of the Act” in the question referred, the learned Judge meant to convey a deposit which otherwise complied with the conditions laid down in sub-section (1) of Section 30, but the landlord was, for some reason justified in refusing to accept the same, our answer would be that despite the validity or justification for such refusal by the landlord, such deposit would still be available the alleged tenant for taking advantage of sub-section (4) of Section 20 of the Act. 13. In Satish Chandra Nigam v. The District Judge, Kanpur and others, 1984 (2) ARC 324, a learned Single Judge observed thus:- “……………………………………………………………………………………... 13. In Satish Chandra Nigam v. The District Judge, Kanpur and others, 1984 (2) ARC 324, a learned Single Judge observed thus:- “……………………………………………………………………………………... So far as the rent is concerned the petitioner’s case was that as he had deposited rent under Section 30 of the U.P. Act No. XIII of 1972 on 2-7-1977, the same was required to be taken into account for conferring upon him the benefit of Section 20 (4). Under Section 30, deposit of rent can be made by a tenant only when the landlord has refused to accept the rent offered to him. In the instant case, the two Courts concurrently found that the plaintiff landlords were justified in refusing to accept the money order of Rs. 340/-. Refusal was held justified as the same was remitted after one month of service of notice demand effected on the petitioner on 5-3-1977. Refusal in the circumstances, was fully justified and the petitioner could not avail Section 30, for depositing the amount on 2-7-1977. As this amount also cannot be considered as valid deposit, the Courts below rightly ignored the same. 15. In the case of Mohd. Shamim Hashmi v. Addl. District Judge, Allahabad, 1980 ALJ 251, it was ruled that where a tenant who has been served with a notice under Section 20(2)(a), demanding rent and he does not send the rent to the landlord with one month of the date of service upon him of demand, he becomes defaulter and the inhimition contained in Section 20, restricting the right of the landlord to file a suit for his ejectment would disappear and any deposit may by him under Section 30 of the Act thereafter would be of no consequence and would not affect the right of the landlord to file the suit for his ejectment. Again we have no quarrel with the said proposition. However, the learned Judge thereafter went on to observe that as in that case the entire amount had not been deposited or paid before the date of first hearing, the tenant was not entitled to claim any relief under Section 20(4) of the Act. Again we have no quarrel with the said proposition. However, the learned Judge thereafter went on to observe that as in that case the entire amount had not been deposited or paid before the date of first hearing, the tenant was not entitled to claim any relief under Section 20(4) of the Act. This case is no authority for the proposition that where a person claims to be a tenant of the building tenders any amount as rent in respect of the said building and the landlord refused to accept the same for some justifiable reason, the same cannot be taken into account in considering the relief claimed by him under Section 20(4) of the Act.” 14. Further the tenant was also liable to deposit the time barred rent. 15. So far as deposit under Section 30(1) is concerned, it has been held in Gokaran Singh Vs. Ist Addl. District and Sessions Judge, Hardoi and others 2000 (1) ARC 65 (F.B.) as under : “…If the landlord has been refusing to accept the rent at correct rate and has been claiming rent at higher rate, the tenant as a consequence of landlord’s earlier refusal in past, deposited the rent in the Court under Section 30 and if thereafter landlord serves formal notice of demand again at the higher rate and expresses his willingness to accept the rent, the tenant after receipt of notice is under an obligation to tender the rent at least at the rate admitted to him to the landlord and has got no right to straight away deposit the same under Section 30(1) of the Act.” 16. Counsel for the respondents Sri Sarvesh Agarwal has disputed that even if the amount deposited under Section 30(1) of the U.P. Act No. 13 of 1972 is taken into consideration, even then the time barred rent has not been deposited by the defendant and further the taxes sought has been deposited in the Court. 17. In Khadi Gram Udyog Trust Vs. Ram Chandraji Sarsaiya Ghat Kanpur 1978 ARC 59, the Apex Court has observed as under :- “The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the scheme of the act, it is clear that the statute has conferred a benefit of the tenant to avoid a decree for eviction by complying with the requirement of Section 20(4). On consideration of the scheme of the act, it is clear that the statute has conferred a benefit of the tenant to avoid a decree for eviction by complying with the requirement of Section 20(4). If he fails to avail himself of the opportunity and has paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under Section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of Section 20(4). As he has not deposited the entire amount due the protection is not more available. We agree with the view taken by the trial court and the High Court of Allahabad that the words ‘entire amount of rent due’ would include rent which has become time-barred. In the result the appeal is dismissed. There will be no order as to costs.” 18. So far as taxes are concerned, the same are part of rent as held in Channu Lal Vs. IXth Addl. District Judge, Varanasi and other [2006(64) ALR 751] (H.C.) as under : “2. Original landlord respondent No. 3 Kamleshwari Nandan Singh (since deceased and survived by legal representatives) filed suit for eviction and recovery of arrears of rent against tenant-petitioner in the form of suit No. 567 of 1984. Property in dispute is a shop situate in Varanasi. In the notice as well as in the plaint, it was stated that rate of rent was Rs. 30/- per month and tenant had not paid the rent since August, 1982 to August, 1984 (25 months). It was also mentioned in the notice as well as in the plaint that Rs. 150/- was also due as water tax for this period. Tenant pleaded that he was not liable to pay water tax and as far as arrears of rent were concerned he had deposited the same under section 30 of U.P. Act No. 13 of 1972. Trial Court/JSCC, Varanasi decided both the points in favour of the tenant and dismissed the suit through judgment and decree dated 23.9.1986. Against the said judgment and decree, tenant-petitioner filed revision (SCC Revision No. 391 of 1986). Before the revisional court, question of default in payment of rent was pressed. Trial Court/JSCC, Varanasi decided both the points in favour of the tenant and dismissed the suit through judgment and decree dated 23.9.1986. Against the said judgment and decree, tenant-petitioner filed revision (SCC Revision No. 391 of 1986). Before the revisional court, question of default in payment of rent was pressed. The only point argued before the Revisional Court was regarding non-payment of water tax. In respect of water tax trial Court had held that there was no agreement in between the parties for payment of water tax. By virtue of section 7 of U.P. Act No. 13 of 1972, tenant is required to pay water tax subject to any contract in writing to the contrary. In view this if there was no agreement either by them tenant was liable to pay water tax. However, neither in the notice nor in the plaint any basis was mentioned for claiming Rs. 150/- as water tax. In the oral statement, landlord did not even say that for the period from August, 1982 to August, 1984, tenant was liable to pay Rs. 150/- as water tax. Revisional Court simply allowed the revision on the ground that water tax of Rs. 150/- had not been paid.” 19. In Abdul Kader Vs. G.D. Govindaraj (dead) by LRs (2002) 5 SCC 51, the Apex Court has observed as under : “5. The term “rent” has not been defined in the Act and therefore, we shall have to go by the ordinary dictionary meaning of the term “rent”. As held in Karnani Properties Ltd. V. Augustine (Miss) AIR 1957 SC 309 the term “rent”is comprehensive enough to include, all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of landlord. It was very fairly conceded by learned counsel for the appellant that ever since the decision of this Court in the case of Karnani Properties Ltd., the view being taken consistently by the High Court of Madras is that in the event of taxes, having been agreed to be paid by the tenant, the same forms part of the rent. [To wit, see Raval and Co. v. K.G. Ramachandran (minor) (1968) 2 MLJ 50]. [To wit, see Raval and Co. v. K.G. Ramachandran (minor) (1968) 2 MLJ 50]. Thus there is no doubt that the amount of taxes which was agreed to by the tenant to be paid to the landlord was a part of the rent and the word “rent” in Section 10(2)(i) of the act has to be construed accordingly.” 20. Since there is no finding with regard to the amount which is due against the defendant and further whether the defendant was paying the amount of Rs. 325/- exclusive of taxes or inclusive of taxes, a finding has to be recorded with regard to the payment of the rent of Rs. 325/- or Rs. 395/- which the defendant is liable to pay. 21. Counsel for the revisionist has further stated that the amount of Rs. 15,000/-, which has been deposited after the demand notice, is not liable to be taken into consideration. 22. In view of the aforesaid, the matter requires reconsideration by the Judge Small Cause Court. The matter is remanded to the Judge Small Cause Court, who shall decide the mater afresh in the light of the observations made above by recording a finding :- (1) whether after the notice has been issued the defendant has paid any rent to the landlord? (2) whether the plaintiff has refused to accept the same? (3) whether any amount has been deposited under Section 30(1) of the U.P. Act No. 13 of 1972 and whether the same was liable to be considered? (4) whether the taxes are part of the rent and further the taxes have been deposited? (5) whether time barred rent is required to be deposited and the same has been deposited or not? 23. On all the issues, the finding has to be recorded by the Judge Small Cause Court? 24. Revision is allowed. No order as to costs.