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2007 DIGILAW 62 (UTT)

JAGJEET SINGH v. CHANDRABATI AGARWAL

2007-02-26

B.S.VERMA

body2007
JUDGMENT P.C.: Hon’ble B.S. Verma, J. 1. By means of this writ petition, the petitioners has prayed for issue a writ order or direction in the nature of certiorari quashing the judgment and order dated 10.1.2006 passed by the District judge Pauri Garhwal in S.C.C. Revision No. 6 of 2004, Smt. Chandravati Agarwal Vs. Jagjeet Singh, whereby the suit of the plaintiff-respondent for recovery of arrears of rent and eviction has been decreed by the revisional court. 2. Relevant facts giving rise to the present writ petition are that the respondent Smt. Chandravati Agarwal filed a suit for recovery of rent and eviction of defendant-petitioner in the court of Judge, Small Cause Court/Civil Judge (Senior Division) Pauri Garhwal (for short the J.S.C.C.) which was registered as S.C.C. Suit No. 13 of 2004 with the averment that the petitioner-tenant was let out the suit premises w.e.f. 15.9.1978 at the monthly rent of Rs. 75/- and the defendant was also required to pay water tax @ 12.5% and scavenging charges @ 3%. According to the plaintiff, the defendant had not paid any rent from August 1988 and water tax from 15.9.1978. Despite demand made by the plaintiff to pay the rent and other charges, the defendant did not pay any heed to the request of the plaintiff. Ultimately, the plaintiff served upon the defendant with demand notice dated 26.07.2004 through her advocate to pay enter arrears of rent and other charges as well as determined the tenancy of the defendant, which were served upon the defendant, but the defendant did not comply with the notice and no reply was given. The plaintiff ultimately filed the suit for recovery of amount of Rs. 3,112.50/- as arrears of rent and for eviction against the defendant along with pendente lite and future damages @ Rs. 86.62/- per month. The defendant contested the suit and filed his written statement. The defendant admitted the rent of Rs. 75/- per month but stated that the water tax and other charges were included in the rent. It was denied that the defendant had not been paying the rent regularly. He never defaulted in payment of rent. It was stated that the plaintiff never issued any receipt of rent received by her since August 1988. The defendant further disputed the plaint allegation that the plaintiff demanded rent etc. by notice dated 26.7.2004. It was denied that the defendant had not been paying the rent regularly. He never defaulted in payment of rent. It was stated that the plaintiff never issued any receipt of rent received by her since August 1988. The defendant further disputed the plaint allegation that the plaintiff demanded rent etc. by notice dated 26.7.2004. On the other hand, it was asserted that by registered notice dated 8.6.2004 the plaintiff demanded total amount of Rs. 14,250/- towards rent etc. from August 1988 and even no rent was due, the defendant sent the entire amount to the tune of Rs. 14,400/- through three money orders, but the plaintiff refused to accept the Money Orders, therefore, the defendant received back the money orders. The plaintiff in order to evict the defendant again issued another notice dated 26.7.2004. It was further stated that the defendant tendered total amount of Rs. 30,000/- which included rent @ 75/- per month from 1.8.1988 along with interest @ 9%,water tax @ 15.5% from 15.9.78 to July 1988, scavenging charges and lawyers fee and court etc. on the first date of hearing in the Court and the monthly rent is being deposited in the court regularly and no rent is due against the defendant. 3. Before the learned J.S.C.C. both the parties filed documentary evidence and also adduced oral evidence. The learned J.S.C.C. heard both the parties and after perusing the evidence both oral and documentary on record came to the conclusion that the defendant has already deposited the entire rent etc. due, therefore, the suit of the plaintiff is liable to be dismissed. Accordingly, the suit was dismissed by the J.S.C.C. vide judgment and decree dated 10.11.2005. 4. Aggrieved by the said judgment and decree the plaintiff preferred J.S.C.C. Revision No. 2 of 2004 before the District Judge, Pauri Garhwal. due, therefore, the suit of the plaintiff is liable to be dismissed. Accordingly, the suit was dismissed by the J.S.C.C. vide judgment and decree dated 10.11.2005. 4. Aggrieved by the said judgment and decree the plaintiff preferred J.S.C.C. Revision No. 2 of 2004 before the District Judge, Pauri Garhwal. In the revision, the revisional court holding that the defendant deposited the arrears of rent since August 1988 but he only deposited the taxes from September 1978 to July 1988 and after July, 1988, no tax was deposited by the defendant-O.P. The revisional court without taking into account the entire evidence led by the parties, the stand taken by plaintiff and defendant before the trial court and without specifying the amount due against the defendant-O.P. took the view that the defendant failed to deposit all the arrears under Section 20(4) of the U.P. Act No. 13 of 1972. Accordingly the order passed by the learned J.S.C.C. was set aside and the suit of the plaintiff for arrears of rent and taxes and for eviction was decreed vide order dated 10.1.2006, which gave rise to the present writ petition. 5. I have heard learned counsel for the parties and perused the material on record including the counter-affidavit filed by the plaintiff-respondent. 6. The petitioner has assailed the impugned judgment and decree passed by the District Judge Pauri Garhwal in revision mainly on the ground that the landlady-plaintiff had sent a notice dated 8.6.2004 thereby demanding rent from August, 1999 till July, 2004 amounting to Rs. 14,250/- along with interest @ 18% per annum and the plaintiff had filed the suit for recovery of arrears of rent and eviction on the basis of the notice dated 8.6.2004. According to the petitioner, he had sent the amount of Rs. 14,400/- through money orders on 3.7.2004 but the respondent did not accept the money orders. Learned counsel for the petitioner-defendant has contended that in order to safeguard the defendant from his eviction, the entire amount along with other dues i.e. a sum of Rs. 30,000/- as provided under Section 20(4) of the U.P. Act No. 13 of 1972 had been deposited by the defendant and the receipt in token of payment was obtained. Learned counsel for the petitioner-defendant has contended that in order to safeguard the defendant from his eviction, the entire amount along with other dues i.e. a sum of Rs. 30,000/- as provided under Section 20(4) of the U.P. Act No. 13 of 1972 had been deposited by the defendant and the receipt in token of payment was obtained. It has been vehemently submitted that the petitioner-defendant had specifically mentioned in heading 4 of his application under Section 20(4) of the U.P. Act No. 13 of 1972 and thereby deposited sum of Rs. 2267.00 towards water tax and scavenging charges @ 15.5% in addition to rent from 1.8.1988 to 31.8.2004 and under head 5 deposit of Rs. 1378.00 towards taxes from 15.9.1978 to July 1988 was made separately. According to the petitioner the finding of the revisional court is perverse because while holding the defendant a defaulter under Section 20(4) of the Act, no finding was recorded by the revisional court as to how the amount of Rs. 30,000/- tendered by the defendant on the first date of hearing fell short by Rs. 4,282/- as specifically pleaded by te revisionist. 7. In the case at hand, the respondent controverted the allegations made by the petitioner in the counter affidavit. In paragraph no. 6 of the counter affidavit it has been stated as below as the contents of this very paragraph goes to the root of the matter. “6. That the contents of the paragraph no. 5 of the writ petition is accepted. The written statement has been filed by the petitioner and rest of the contents are denied. However, it is stated the respondents given notice to the petitioner. The tenancy of the petitioner has been terminated by the respondents by the notice dated 8.6.2004 by failing the demanded amount and filed a suit for ejectment and arrears of rent. The petitioner is liable to pay the demanded amount with water tax and sewerage tax.” 8. The admitted facts between the parties are that the plaintiff-respondent no.2 sent a demand notice dated 8-6-2004 to the petitioner-defendant through her counsel under Section 106 of the Transfer of Property Act. In this notice in paragraph no.3 it has been mentioned that the defendnt had not deposited the rent @ Rs. 75/- from August 1988 till date of notice. The admitted facts between the parties are that the plaintiff-respondent no.2 sent a demand notice dated 8-6-2004 to the petitioner-defendant through her counsel under Section 106 of the Transfer of Property Act. In this notice in paragraph no.3 it has been mentioned that the defendnt had not deposited the rent @ Rs. 75/- from August 1988 till date of notice. It was also mentioned that the water-tax and house tax is also being deposited by the landlady. It has been specifically mentioned in this notice in paragraph no.9 that amount of Rs. 14,250/- as rent is due against the defendant and by this notice demand was made to pay the amount of Rs. 14,250/- along with interest @ 18% per annum within a period of one month. Again on 26-7-2004 another notice was sent to the defendant but in this notice there is no mention of earlier notice dated 8-6-2004 issued by the plaintiff herself to the defendant. In this notice no amount has been determined calling upon the petitioner to pay entire rent from 1-8-1988 to July 2004 and water tax and scavenging tax @ 15.5%. Admittedly on the basis of notice dated 26-7-2004 the suit for arrears of rent and eviction was filed by the plaintiff against the defendant on 10-9-2004. 9. For a just decision of the case, a reference to the case of the parties before the trial court is very necessary. Before the learned J.S.C.C. the petitioner had filed the money order coupons by which the amount of Rs. 14,400/- was received back on 8-7-2004. In these coupons, reference of notice dated 8-6-2004 has been mentioned. The learned J.S.C.C. while discussing the evidence on the point of Section 20(4) of the said Act has mentioned in paragraph no. 14 of the judgment that the defendant had tendered on the first date of hearing the entire rent from 1.8.1988 @ 75/- per month along with interest @ 9% as well as water tax @ 15.5%, alleged water tax and scavenging charges w.e.f. 15-9-1978 to July 1988, fees of the counsel, court fee, expenses of suit etc. to the tune of Rs. 30,000/-. The J.S.C.C. has also clearly mentioned in the judgment that the defendant vide paper no. 13-C had paid all the requisite amounts under Section 20(4) of the U.P. Act. No. 13 of 1972 and the receipt of payment was filed as paper no. to the tune of Rs. 30,000/-. The J.S.C.C. has also clearly mentioned in the judgment that the defendant vide paper no. 13-C had paid all the requisite amounts under Section 20(4) of the U.P. Act. No. 13 of 1972 and the receipt of payment was filed as paper no. 14-C. The J.S.C.C. has categorically held that the defendant is entitled to get the benefit of Section 20(4) of the said Act. 10. A perusal of the judgment of the learned J.S.C.C. shows that before the Court the defendent has examined D.W.2 Atma Ram Bhatia. This witness had filed his affidavit and stated therein that he assisted the defendant to have the tenanted premises and he was present when the amount of rent was fixed by the plaintiff. He had clearly stated that the rent of Rs. 75/- included all the taxes in his present. He has substantiated all these facts when he was cross-examined by the plaintiff. 11. In paragraph no. 8 of the impugned judgment of the District Judge it has been mentioned that “admittedly in this case the defendant has deposited water and sewerage tax only upto 1988. Plaintiff demanded the water and sewerage tax upto the date of the suit which has not been deposited by the tenant.” 12. It is pertinent to note that in paragraph no. 5 of the writ petition the petitioner has specifically stated that the petitioner had deposited the entire demanded rent and all other alleged arrears since 1.8.1988 including the interest at the rate of 9% and alleged water tax and sewerage at the rate of 15.5% since 15.9.1978 and counsel fee of the respondent and deposit of Rs. 30,000/- was made on the first date of hearing. It has also been mentioned that the petitioner moved application for getting the benefit under Section 20(4) of the U.P. Act No. 13 of 1972 containing the receipt of entire amount by the counsel for the respondent. In the counter affidavit, the plaintiff-respondent by filing Annexure C.A.-1 has tried to shows that the defendant-petitioner has not paid the interest at the rate of 9% per annum on the amount of water tax and scavenging charges. I have gone through the entire plaint of the suit. In the plaint, details of the outstanding amount of rent, water charges, scavenging charges etc. were disclosed by the plaintiff. I have gone through the entire plaint of the suit. In the plaint, details of the outstanding amount of rent, water charges, scavenging charges etc. were disclosed by the plaintiff. Rather by the notice dated 8.6.2004, the plaintiff had demanded the amount of Rs. 14,250/- from the defendant. It finds place to mention that insufficiency of the tender of 30,000/- made by the defendant was not at all examined in the light of the pleadings of the parties by the revisional court. 13. In the case at hand, the plaintiff-respondent as mentioned in paragraph no. 6 of the Counter Affidavit has admitted that the tenancy of the petitioner has been terminated by the respondent by the notice dated 8.6.2004 and amount was demanded and failing which the suit was filed. The respondent-plaintiff has thus admitted the notice dated 8.6.2004. From a bare perusal of the notice dated 8.6.2004, it is apparent that the plaintiff demanded arrears of rent from the year 1988 amounting to Rs. 14,250/- along with interest @ 18% per annum, but in the plaint, the plaintiff has not mentioned anything about the issuance of notice dated 8.6.2004. 14. Learned counsel for the petitioner while referring to the application allegedly moved by the plaintiff before the trial court (Annexure C.A.-1) submitted that the plaintiff had nowhere disclosed the amount to be payable by the defendant on the first day of hearing, rather in a very cursory way, the plaintiff had mentioned that the defendant was required to deposit sum of Rs. 4,282/- more. Learned counsel for the petitioner further argued that while disputing the amount of Rs. 30,000/- as inadequate, it was incumbent upon the plaintiff to have disclosed the details of the entire sum payable by the defendant on the first date of hearing and it was for the plaintiff to have shown that the defendant was required to tender amount of Rs. 34,282/- instead of Rs. 30,000/-. It was contended that the plaintiff had not stood on her on legs. I have perused the said annexure CA-1, which purports to be application of the plaintiff dated 27.4.2005. Admittedly, the defendant had paid sum of Rs. 30,000/- and details thereof were given in the application under Section 20(4) of the Act. 34,282/- instead of Rs. 30,000/-. It was contended that the plaintiff had not stood on her on legs. I have perused the said annexure CA-1, which purports to be application of the plaintiff dated 27.4.2005. Admittedly, the defendant had paid sum of Rs. 30,000/- and details thereof were given in the application under Section 20(4) of the Act. Be that as it may, it was for the revisional court to have recorded a clear cut finding as per provisions of the Section 20(4) of the Act whether or not the amount of Rs. 30,000/- tendered by the plaintiff was insufficient to meet the requirement of law. The revisional court while dis-agreeing with the finding of the trial Judge did not think it proper to discuss as to how the amount of Rs. 4,282/- had fallen short which was main ground to assail the judgment and decree of the trial court. 15. Thus, having considered the allegations made in the plaint, the averment made in the notice dated 8.6.2004 made by the plaintiff as well as the averment made in the notice 6.7.2004 read with the averments made by the plaintiff-respondent in the counter affidavit coupled with the averments made by the plaintiff in Annexure C.A.-1, it is apparent on the face of record that the revisional court entirely lost sight of certain material facts while allowing the revision and since there is no finding of the revisional court on the suffciency or insufficiency of the amount tendered by the petitioner on the first date of hearing. Therefore, the finding recorded by the revisional court without determining the default of the defendant specifically in the light of the amount of Rs. 30,000/- and on the basis of the material available before the court, the conclusion arrived at by the revisional courts is perverse. The matter regarding sufficiency or insufficiency of the tender made by the tenant-defendant relates to finding of fact and this Court while exercising writ jurisdiction cannot re-appreciate the evidence, therefore, it is a fit case for remand of the matter to the revisional court. 16. In the result, the writ petition is allowed. The matter regarding sufficiency or insufficiency of the tender made by the tenant-defendant relates to finding of fact and this Court while exercising writ jurisdiction cannot re-appreciate the evidence, therefore, it is a fit case for remand of the matter to the revisional court. 16. In the result, the writ petition is allowed. The judgment and decree dated 10.1.2006 passed by the District Judge Pauri Garhwal is set aside and the matter is remanded to the revisional court to decide the S.C.C. Revision No. 6 of 2004 afresh after hearing both the parties in accordance with law and in the light of the observations made above expeditiously as far as possible.