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Allahabad High Court · body

2008 DIGILAW 1627 (ALL)

Gafooran (D) Through L. Rs. v. XIIth Additional District Judge

2008-08-12

S.U.KHAN

body2008
JUDGMENT : S.U. Khan, J. This is tenant's writ petition. Landlord respondent No. 3, Sri Sirajudddin, filed S.C.C. Suit No. 341 of 1988 against original petitioner for eviction on the ground of default and for recovery of arrears of rent. Admitted rate of rent is Rs. 18 per month. Property in dispute is residential in nature and contains one room. In the plaint, it was alleged that defendant had not paid rent from 1.7.1984 to 31.3.1988 inspite of notice of demand and termination of tenancy dated 6.4.1988 served on 9.4.1988. 2. In para 4 of the plaint it was specifically stated: That defendant without tendering rent to plaintiff began to deposit rent u/s 30(1)(a) of U.P. Act No. 13 of 1972 in proceedings No. 404/70 of 1985, Gafooran Nisa v. Siraj Uddin but on 31.7.1985 the Court of Munsif city passed the orders directing defendant to make payment of rent directly to plaintiff both file was consigned but defendant did not pay rent to plaintiff inspite of his willingness and orders of the Court. 3. Defendant pleaded that in proceeding u/s 30 of the Act she had deposited the rent upto August, 1985. In the suit tenant deposited entire rent from August 1985 to September, 1988 on the first date of hearing in order to claim the benefit of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Total amount deposited by the tenant on the first date of hearing was Rs. 1,035. 4. Trial court/J.S.C.C, Kanpur Nagar, dismissed the suit for eviction through judgment and decree dated 17.1.1990. Suit for recovery of arrears of rent was decreed. Against the Judgment and decree by the trial court, landlord-respondent No. 3 filed S.C.C. Revision No. 195 of 1993. XIIth A.D.J., Kanpur Nagar allowed the revision through judgment and order dated 9.3.1994, set aside the judgment and decree passed by the trial court refusing to grant the relief of eviction and decreed the suit for eviction also, hence this writ petition by the tenant. 5. The landlord contended that the amount had been deposited u/s 30 of the Act without tendering the same to him, hence it was invalid. 5. The landlord contended that the amount had been deposited u/s 30 of the Act without tendering the same to him, hence it was invalid. Section 30(1) of the Act is quoted below: If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may 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. 6. Alongwith the counter-affidavit landlord himself has filed his objections before Munsif in the case u/s 30 of the Act. In para 7 it was stated that no money order was tendered to landlord. Objections were filed on 3.7.1985. Affidavit was also filed. In para 8 of the-affidavit sworn on 8.7.1985 it was stated that deponent is ready to accept the rent and tenant must be directed to pay rent to him and application u/s 30 should be dismissed. Munsif on 31.7.1985, passed an order on the objections of the landlord. In the said order it was directed that tenant should directly pay rent to the landlord. 7. The tenant in her cross-examination, copy of which is annexed alongwith the counter-affidavit, stated that she had sent money order to the landlord. However, she could not say as to whether receipt or coupon of money order was filed by her or not. The revistonal court held that as if was not proved that rent was directly tendered to the landlord and he refused to accept the amount, hence deposit u/s 30 of the Act was not in accordance with the provision of law. 8. Tenant's application u/s 30 was allowed by Munsif on 9.5.1985, i.e., prior to filing of objections and affidavit by the landlord. It is correct that unless it is shown that landlord had refused to accept the rent sent through money order, deposit u/s 30 of the Act cannot be held to be valid. 8. Tenant's application u/s 30 was allowed by Munsif on 9.5.1985, i.e., prior to filing of objections and affidavit by the landlord. It is correct that unless it is shown that landlord had refused to accept the rent sent through money order, deposit u/s 30 of the Act cannot be held to be valid. However, when landlord himself appeared in the case u/s 30 of the Act and signified his willingness to accept the rent through affidavit and thereupon the Munsif directed for payment of rent directly to the landlord it clearly meant that landlord had agreed for withdrawal of the rent already deposited. Neither in the objections nor in the affidavit it was stated that the rent which had already been deposited by the tenant must again be directed to be paid by the tenant to the landlord. 9. Landlord also did not indicate either in the objections or in the affidavit that rent deposited by the tenant might be permitted to be withdrawn by the tenant. Munsif also -did not pass any such order. Accordingly, in, my opinion filing of objection and affidavit by the landlord and order of Munsif dated 31.7.1985 clearly meant that the landlord had accepted the deposit of rent made till then or at least agreed for withdrawing the same. There was absolutely no bar against withdrawal of the amount of rent deposited till 31.7.1985 by the landlord. 10. In view of the peculiar facts and circumstances of the case I hold that deposit of rent by the tenant u/s 30 of the Act till 31.7.1985 was valid. Landlord could very well withdraw the said amount. Since August, 1985 onward the entire amount of rent alongwith cost and interest etc. was deposited in the suit u/s 20(4) of the Act. 11. Full Bench authority of this Court in Gokaran Singh v. 1st A.D.J. 2000 (1) ARC 653 , cited by the learned Counsel for the landlord has got no direct impact on this case. Accordingly, writ petition is allowed Judgment and order passed by the revisional court is set aside and judgment and decree passed by the trial court is restored. Whatever, amount has been deposited till date may be withdrawn by the landlord. 12. I have held in Smt. Khursheeda Begum and Others Vs. Accordingly, writ petition is allowed Judgment and order passed by the revisional court is set aside and judgment and decree passed by the trial court is restored. Whatever, amount has been deposited till date may be withdrawn by the landlord. 12. I have held in Smt. Khursheeda Begum and Others Vs. Additional District Judge and Others, (2004) 1 AWC 851 , and H.M. Kichlu v. A.D.J. 2004 (2) ARC 652, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said, relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent. 13. In the aforesaid authority of Khurskeeda (supra), I placed reliance upon the Supreme Court authority of Malpe Vishwanath Acharya and Others Vs. State of Maharashtra and Another, (1998) 2 SCC 1 , where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and courts of law are becoming redundant in this sphere. 14. This authority has recently been followed by the Supreme Court in Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Another, (2008) 5 SCC 287 , of which are quoted below: 29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent. 34. In Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.3.1998. 15. 15. Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (Section 9A) or Government is tenant (Section 21(8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court in Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, (supra), of which is quoted below: It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This Jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priory, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. 16. Thereafter in Para 8 of the aforesaid authority of Khursheeda, I held as under: Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, (supra), has laid down that while granting relief to a party the writ court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said Rent Control Act. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said Rent Control Act. The writ court therefore while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. 17. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act. 18. Thereafter in H.M. Kitchlu v. A.D.J. 2004 (2) ARC 652, I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so writ court approves the protection of Rent Control Act granted to the tenant by the courts below. 19. Property in dispute consists of one room and is situate in Kanpur which is most expensive city of Uttar Pradesh. Existing rent of Rs. 18 per month is virtually as well as actually no rent, it is rather ridiculous. Accordingly, it is directed that w.e.f. August, 2008 onward tenant shall pay rent to the landlord @ Rs. 500 per month.