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2007 DIGILAW 602 (ALL)

Chandra Shekhar Singh v. Kulwant Singh

2007-03-13

RAKESH SHARMA

body2007
JUDGMENT : RAKESH SHARMA, J. 1. This writ petition has been heard and disposed of in the open Court today for reasons to be recorded later on. My reasons for dismissing the writ petition are as follows: 2. Heard Sri R. K. Nigam, learned Counsel for the Petitioner-tenant and Sri D. K. Sharma, learned Counsel for the opposite party-landlord. 3. Under challenge are two judgments and orders ; one passed by the Judge, Small Causes Court, Lucknow dated 16.9.2003 and the other dated 3.3.2004, passed by the Special Judge, S.C./S.T. Act, Lucknow, affirming the judgment and order dated 16.9.2003 passed by the Judge, Small Causes Court and ordering for eviction of the Petitioner-tenant from the tenanted premises. 4. Both the courts below have recorded concurrent findings of facts and had ordered for eviction of the tenant from the tenanted accommodation and issued directions to him for making payment of arrears of rent as well as the current rent to the landlord. 5. It emerges from record that the Petitioner-tenant, Chandra Shekhar Singh was inducted as tenant by the father of the opposite party-landlord sometime in the year 1981 in House, Bagh No. 2, near Gagan Palace at Kanpur Road, Lucknow. As per the learned Counsel for the tenant-Petitioner, he was required to pay Rs. 350 per month as rent including the electricity and water charges. A Suit No. 246 of 1999, Kulwant Singh v. Chandra Shekhar Singh, was filed by the landlord-opposite party before the Judge, Small Causes Court, Lucknow in the year 1999, seeking arrears of rent for the period from 1.4.1998 to 31.7.1999 at the rate of Rs. 350 per month. The total amount of arrears of rent was Rs. 5,600 payable to the landlord by the tenant. Before filing the suit, a legal notice was also sent by the landlord to the Petitioner-tenant through his counsel on 2.8.1999 but the tenant did not respond to the same and failed to vacate the rented premises. 6. The tenant had contested the suit by filing his written-statements. It was indicated in the written statements that Rs. 350 per month was being paid by the tenant to the landlord including the electricity and water charges. Sri Kulwant Singh's father, erstwhile landlord had assured that the tenant may live in the house till he constructs his own house in future and there shall be no enhancement in the rent. It was indicated in the written statements that Rs. 350 per month was being paid by the tenant to the landlord including the electricity and water charges. Sri Kulwant Singh's father, erstwhile landlord had assured that the tenant may live in the house till he constructs his own house in future and there shall be no enhancement in the rent. It is relevant to mention here that it has been admitted by both the parties that there was no written agreement or contract executed between the parties nor the rented house was allotted by the Rent Control Officer, Lucknow. The house in dispute does not come under the purview of the relevant rent laws, i.e., U. P. Act No. 13 of 1972. The tenant had further indicated in the written statements that earlier to this, an attempt was made by the landlord for forcibly evicting the tenant but on the indulgence of an appropriate civil court, the tenant was safe from eviction by virtue of an injunction order granted in his favour in July, 1998. The Petitioner-tenant has been regularly paying the rent. 7. Oral and documentary evidence was led before the Judge, Small Causes Court by the parties. The suit of the landlord for eviction of the tenant from the rented premises and payment of arrears of rent was decreed with costs on 16.9.2003 and the tenant (Petitioner in this case) was directed to vacate the premises within two months after handing over peaceful possession of the rented premises to the landlord. Against the said order, a Revision No. 74 of 2003, was preferred by the tenant, which was dismissed on 3.3.2004, upholding the judgment and order passed by the Judge, Small Causes Court. The Petitioner-tenant is continuing in the rented premises on the basis of an interim order granted by this Court on 26.4.2004 in the instant writ petition. The Petitioner-tenant was directed to deposit the entire decretal amount and he was also required to deposit the monthly damages for use and occupation of the rented accommodation every month. 8. Sri R. K. Nigam, learned Counsel for the Petitioner-tenant has reiterated all the submissions, which were made before the Judge, Small Causes Court as well as the revisional court. He has led the Court to various documents, pleadings filed before the courts below. 8. Sri R. K. Nigam, learned Counsel for the Petitioner-tenant has reiterated all the submissions, which were made before the Judge, Small Causes Court as well as the revisional court. He has led the Court to various documents, pleadings filed before the courts below. According to him, the Petitioner-tenant has been paying the rent regularly at the rate of Rs. 350 per month, which includes electricity and water charges and other taxes. A hand pump was also installed by the tenant in the residential rented premises. The cost of such installation was to be adjusted out of the amount already paid as rent of the tenanted premises. Since the landlord-opposite party had refused to receive the rent, it was sent through money order and finally the same was deposited in the Court u/s 30(1) of U. P. Act No. 13 of 1972. The Judge, Small Causes Court had erred in arriving at the conclusion that the Petitioner-tenant had committed default in making payment of the monthly rent. The notice dated 2.8.1999, sent by the landlord was itself defective and invalid. The courts below have not appreciated the original postal receipts, money order coupons and the factum of deposition of rent in the appropriate court u/s 30(1) of U. P. Act No. 13 of 1972. Both the courts below have wrongly held that the rent for the disputed period was not paid by the tenant, whereas in fact it was paid to the landlord and later on it was sent through money order and other valid modes. The relevant provisions of law were ignored. The rent was regularly deposited by the tenant through tenders. The judgment and order passed by the courts below are, therefore, illegal, unjust and improper. The learned Counsel for the Petitioner has placed reliance on the judgment in Ram Das (deceased) v. Vth Addl. District Judge, Azamgarh and Ors. 1985 (2) ARC 188 ; Abdul Jalil Vs. Haji Abdul Jalil, AIR 1974 All 402 and Nootan Kumar v. IInd Addl. District Judge, 1993 (2) ARC 204, in support of his above submissions. 9. Sri D. K. Sharma, learned Counsel for the Respondent-landlord has opposed the writ petition. He has submitted that the Petitioner was a tenant of a residential house situate at Bagh No. 2 on main Kanpur Road in the city of Lucknow. The monthly rent of Rs. 350 did not include water and electricity charges. 9. Sri D. K. Sharma, learned Counsel for the Respondent-landlord has opposed the writ petition. He has submitted that the Petitioner was a tenant of a residential house situate at Bagh No. 2 on main Kanpur Road in the city of Lucknow. The monthly rent of Rs. 350 did not include water and electricity charges. The Petitioner-tenant was occupying two rooms, open verandah, latrine and bath room. To provide light and fan for such accommodation, one will have to spend at least Rs. 250-350 per month and even in the year 1981 and thereafter Rs. 150 per month must have been added for lighting of the accommodation. The Petitioner-tenant was a very bad pay master and, therefore, he was in arrears of rent at the rate of Rs. 350 per month from 1.4.1998 to 31.7.1999. A sum of Rs. 5,600 became due on account of arrears of rent on the date of sending legal notice. Even after receiving legal notice on 20.8.1999, the tenant did not offer the same to the landlord nor the same was deposited in the Court. 10. Through the legal notice, the Petitioner-tenant was duly informed that the landlord no more wanted to rent out the accommodation and the tenancy was terminated. The tenant was required to vacate and handover the peaceful vacant possession of the premises to the landlord. The notice was sent through the registered post on 2/6.8.1999 and the same was served on the tenant on 20.8.1999. The Petitioner-tenant has not indicated any defect in his reply to the notice. Since there was no written agreement executed between the parties, the Petitioner has no legal or contractual right to continue in the rented premises after receiving the legal notice. He ought to have vacated the premises. The rented house was not covered by the relevant rent laws, provisions of U. P. Act No. 13 of 1972. The Petitioner had cooked up a cock and bull story regarding installation of a hand pump as the same was already available in the vacant land of the house. This fact has also been admitted in the cross-examination, which is on record. There was default on the part of the tenant in depositing the monthly rent and full payment towards electricity and water dues was also not paid. The Petitioner-tenant was required to pay the electricity and water charges and tax. 11. This fact has also been admitted in the cross-examination, which is on record. There was default on the part of the tenant in depositing the monthly rent and full payment towards electricity and water dues was also not paid. The Petitioner-tenant was required to pay the electricity and water charges and tax. 11. Sri D. K. Sharma, has brought to the notice of the Court that the application for deposition of rent submitted by the Petitioner had already been rejected by the Court of Civil Judge, Hawali (J. D.), Lucknow and if the amount deposited by the Petitioner-tenant in any other Court the same was not payable to the landlord. The deposits were refundable to the Petitioner only. The Petitioner has annexed a certified copy of the order dated 12.9.2002 passed by the court below, rejecting the application submitted by the tenant for depositing the rent. The Petitioner-tenant had received the summon of the original suit for recovery of rent and arrears, damages and his eviction from the rented accommodation on 14.1.2000 and then he had presented his written statement on 1.10.2001 in the Court of Judge, Small Cause Court but he had not deposited the admitted rent and arrears of rent alongwith 9% interest per annum as provided under Rule 5 Order XV, Code of CPC on the first date of hearing. The Petitioner did not deposit damages monthly within the statutory period. Admittedly, the tenant had deposited the amount of rent u/s 30(1) of U. P. Act No. 13 of 1972 after receiving the summon of original suit and as such the said deposit was wholly illegal. This amount is not payable to the landlord due to dismissal of the application submitted by the Petitioner-tenant u/s 30(1) of the aforesaid Act. However, this fact was not brought to the notice of the Judge, Small Causes Court. Subsequently, also the Petitioner-tenant had failed to deposit the rent within seven days in the courts below. The learned Counsel for the landlord has categorically denied that any receipt was executed on 12.5.1998 for receiving the rent for a period of one month (1.4.1998 to 30.4.1998). There were no pleadings before the courts below regarding issuance of such a receipt. 12. Sri D. K. Sharma has further submitted that if the Petitioner vacated the premises on receipt of the notice in the year 1999, it would have fetched Rs. There were no pleadings before the courts below regarding issuance of such a receipt. 12. Sri D. K. Sharma has further submitted that if the Petitioner vacated the premises on receipt of the notice in the year 1999, it would have fetched Rs. 3,000 per month as rent as the rented premises is situate at main Kanpur Road, Lucknow. The landlord has been prevented to receive adequate rent by the tenant. He has been unnecessarily dragged in litigation, hence he deserves to be compensated by the tenant. He has placed reliance on a judgment of this Court in Vishwanath Khanna Shri and Ors. v. Xth Addl. District Judge, Lucknow and Ors. 2006 (24) LCD 1599, in support of his above submissions. The findings recorded by the Courts are legal, just and proper. 13. I have considered the arguments of the learned Counsel for the parties and perused the record. 14. The rented accommodation is not covered by U. P. Act No. 13 of 1972. No agreement, lease deed or other documents were ever executed between the parties. The Petitioner-tenant was permitted to use and occupy the premises by the original landlord in the year 1981. There is concurrent finding of fact recorded by both the courts below that a legal, valid notice was issued and served on the tenant on 20.8.1999. In reply to the notice the tenant had himself admitted that : 15. The Petitioner-tenant has never objected to any defect in the notice. There is clear and specific admission in reply to the notice that he owes arrears of rent payable to the landlord. Both the courts below have recorded concurrent findings of facts that the tenant despite receiving the summon of the original suit for recovery of rent, eviction etc. on 14.1.2000 did not deposit the admitted rent alongwith 9% interest per annum thereon as required under Rule 5 of Order XV, Code of CPC nor the due amount alongwith 9% per annum interest thereon and costs of the suit etc. was deposited on the first date of hearing. The Petitioner-tenant had not deposited the damages monthly within the statutory period. was deposited on the first date of hearing. The Petitioner-tenant had not deposited the damages monthly within the statutory period. He had deposited the amount, arrears of rent u/s 30(1) of U. P. Act No. 13 of 1972 (these provisions were not applicable in the present case as the rented house is out of the purview of the said Act), after receiving the summon of the original S.S.C. suit. It is noteworthy that the application u/s 30 of U. P. Act No. 13 of 1972 submitted by the Petitioner was dismissed by the court below on 12.9.2002 and as such this amount was not payable to the landlord. There is nothing to show that the Petitioner had regularly deposited the rent and monthly damages in advance. In fact, he never deposited the rental amount within the statutory period of seven days from the date of its accrual. Despite admitting the arrears of rent, the Petitioner-tenant had not paid the rent to the landlord within the stipulated period as indicated in the notice. 16. Both the courts below have come to the conclusion that the hand pump was not got installed by the tenant, rather the same was already available in the rented premises when the Petitioner was inducted as tenant. This fact has also been admitted during his cross-examination. There was no evidence on record to prove that the tenant had ever asked the landlord for reboring or for installing a new hand pump. He had not sought for restoration of the facilities as per provisions of U. P. Act No. 13 of 1972. The contention of the Petitioner-tenant regarding installation of the hand pump was found to be imaginary by both the courts below. Both the courts below have dealt with the liability of the tenant to pay electricity and water charges, taxes etc. In fact, the presumption is that in addition to the monthly rent, the Petitioner ought to have paid the electricity and water charges. There existed no contract, lease deed or any other document to demonstrate that the tenant was not liable to pay the electricity and water charges. Considering the area of rented accommodation and its location, it cannot be said that the landlord was required to pay the electricity and water charges to the tenant. There existed no contract, lease deed or any other document to demonstrate that the tenant was not liable to pay the electricity and water charges. Considering the area of rented accommodation and its location, it cannot be said that the landlord was required to pay the electricity and water charges to the tenant. No rent receipt has been filed by the tenant to demonstrate that the electricity and water charges were included in the monthly rent. The Petitioner was rightly held to be responsible for payment of electricity charges to the landlord. Both the courts below have held on the basis of oral and documentary evidence on record that the tenant had defaulted in making payment of rent and therefore, he was in arrears of rent at the time of issuance of notice and filing of the suit. The first tender was submitted in the appropriate court u/s 30 of U. P. Act No. 13 of 1972 on 9.2.2000, when the summon of the case was admittedly received by the tenant-Petitioner on 14.1.2000. The arrears of rent was admitted by the Petitioner in reply to the notice dated 20.8.1999. This reflects the dishonest intention of the tenant for not paying the rent. The Court has been informed by the counsel for the parties that for providing light and fan in such a house having two rooms, verandah and open space, at least 100-150 units of electricity will be required. No landlord can provide electric facility in two rooms, one verandah, latrine and bath rooms and open space to a tenant on a meagre rent of Rs. 350, which is no rent in the eye of law. Any reasonable person can come to the conclusion that such accommodation at Kanpur Road in the city of Lucknow cannot be provided free or on charity. Both the courts below have rightly held that the electricity charges were payable by the tenant in addition to the monthly rent of Rs. 350 per month while the Petitioner-tenant admittedly did not pay to the landlord. 17. It is well-settled that in exercise of powers under Article 226 of the Constitution of India, this Court will not sit in appeal over the concurrent findings of facts arrived at by the courts below (vide Ranjeet Singh v. Ravi Prakash, 2004 (1) ARC 613 (SC): 2004 (2) AWC 1721 (SC) and Abdul Naim Quraishi Vs. 17. It is well-settled that in exercise of powers under Article 226 of the Constitution of India, this Court will not sit in appeal over the concurrent findings of facts arrived at by the courts below (vide Ranjeet Singh v. Ravi Prakash, 2004 (1) ARC 613 (SC): 2004 (2) AWC 1721 (SC) and Abdul Naim Quraishi Vs. Masi-Uddin Khan, (2005) 2 AWC 1260 . This Court has further noted that the findings of facts recorded by the courts below have not been disputed by the Petitioner. The learned Counsel for the Petitioner has, in fact, tried to persuade this Court to do reappraisal of the evidence and material on record and act as super appellate authority. This is not possible under writ jurisdiction of this Court vide Smt. G. Kaushalya Devi Vs. Ghanshyamdas, AIR 2000 SC 656 Ragavendra Kumar Vs. Firm Prem Machinary and Co., AIR 2000 SC 534 Ashok Kumar and Others Vs. Sita Ram, AIR 2001 SC 1692 Smt. Fatima Bee Vs. Mahamood Siddiqui and Mohd. Omer Siddiqui, AIR 1996 SC 2537 and Vaneet Jain Vs. Jagjit Singh, 18. Accordingly, the writ petition is devoid of merit and the same is dismissed. 19. The Petitioner-tenant shall vacate the premises in dispute within one month from today after handing over its peaceful possession to the landlord-Respondent. The tenant shall also pay Rs. 75,000 to the Respondent-landlord within one month from today. This amount includes arrears of rent at the rate of Rs. 350 per month and electricity charge, etc. for 108 months to be counted from 1.4.1998. The rest of the amount is being awarded as costs towards, expenses of the litigation for dragging the landlord in unnecessary litigation for the last about eight years. The costs is being awarded in the light of the judgment of the Hon. Supreme Court of India in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), AIR 2005 SC 3353 , that if the proceedings are unnecessarily protracted or adjournments have been sought, it is upon the discretion of the Judge to impose exemplary cost taking into account the circumstances etc. for the purpose of adjournment. The executing court shall immediately proceed with the case. 20. The amount already deposited in the Court shall be permitted to be withdrawn by the tenant for the purpose of its payment to the landlord-Respondent within the aforesaid period. for the purpose of adjournment. The executing court shall immediately proceed with the case. 20. The amount already deposited in the Court shall be permitted to be withdrawn by the tenant for the purpose of its payment to the landlord-Respondent within the aforesaid period. It is open for the landlord to produce this judgment before the concerned court below which had passed interim injunction order against the eviction of the tenant from the premises in dispute for the purpose of compliance of this order. The suit for injunction shall be disposed of immediately.