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2008 DIGILAW 760 (ALL)

VINOD KUMAR v. OM PRAKASH

2008-04-03

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THIS petition has been filed by the landlord for setting aside the order dated 4th December, 1997 passed by the Revisional Court by which the Revision was allowed and the Judgment and order dated 23rd november, 1994 passed by the Judge Small Cause Courts was set aside and the suit was dismissed. ( 2 ) THE dispute in the present petition relates to a shop situated in mohallah lajpat Nagar of which Mewa Lal was the owner and landlord. Respondent om Prakash was a tenant in the shop @ Rs. 100/- per month. Mewa Lal sold the shop in dispute by a registered sale deed dated 23rd August, 1990 executed in favour of the petitioner who consequently became the landlord. It is said that a registered notice dated 26th December, 1990 was sent by the landlord to the tenant informing the tenant about the execution of the sale deed dated 23rd august, 1990 and the tenancy was also terminated. Another notice was also sent by registered post on 31st January, 1991 to the same effect. There is a serious dispute between parties about the service of the aforesaid two notices dated 26th December, 1990 and 31st January, 1991 as the contention of the learned counsel for the plaintiff-landlord is that the notices were served by refusal whereas the tenant asserts that he had never refused to accept the notices. ( 3 ) SCC Suit No. 3 of 1991 was thereafter filed by the landlord for recovery of arrears of rent and ejectment. The suit was decreed. The tenant filed a revision, which has been allowed. The dispute that arose before the Courts below was as to whether the notices dated 26th December, 1990 and 31st January, 1991 had been served upon the defendants and whether the tenant was in arrears of rent for a period of four months and whether the tenant had deposited the entire arrears of rent along with damages and interest together with the landlords cost of the suit after deducting any amount deposited under section 30 (1) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) as was required to be done under section 20 (4) of the Act on the first date of hearing. ( 4 ) LEARNED Counsel for the petitioners urged that the Rcvisional Court erred in holding that the notices had not been served and that the tenant was not in arrears of rent for a period of more than four months. Learned Counsel for the respondents, however, submitted that the notices had not been served but even if it is assumed that the notice dated 26th December, 1990 was served upon the tenant, then too on that date the tenant was not in arrears of rent as the tenant had continued to deposit the rent in favour of the earlier landlord in the misc. Case No. 42 of 1990 filed under section 30 (1) of the Act. It is further submitted that on 13th December, 1990 the rent for the period from 9th August 1990 to 8th November, 1990 had been deposited and subsequently on 5th March, 1991 the rent from 9th November 1990 to 8th February, 1991 was deposited in Misc. Case No. 42 of 1990 in favour of the earlier landlord. His submission is that by making the said deposit it shall be deemed that the tenant had paid the rent in favour of the earlier landlord under section 30 (6) of the Act. Learned Counsel for the respondents has also placed reliance upon the provisions of section 109 of the Transfer of Property Act and contended that so long as the present landlord had not intimated about the execution of the sale deed, he was justified in depositing the rent under section 30 (1) of the Act in favour of the earlier landlord. ( 5 ) THE Judgment of the Prescribed Authority as well as that of the revisional Authority show that they have failed to examine the issue in the right perspective. It was first required to be determined as to whether the tenant was actually in arrears of rent for a period of four months when the notice was sent by the landlord to the tenant and in this connection it has also to be seen whether the notice was served upon the tenant. There is no specific finding either by the Proscribed Authority or the Revisional Authority on this issue. There is no specific finding either by the Proscribed Authority or the Revisional Authority on this issue. In case, it is found that the tenant was actually in arrears of rent for a period of four months then it has to be determined whether the tenant had complied with the provisions of section 20 (4) of the Act. The matter is, therefore, required to be remitted to the Judge Small Cause Courts to decide the case in the light of the observations made above. ( 6 ) THE orders dated 23. 11. 1994 and 4. 12. 1997 are, therefore, set aside. The matter is remitted back to the Judge Small Cause Courts to decide the suit afresh in the light of the observations made above. Since the matter is old it is expected that the suit shall be decided expeditiously, preferably within a period of six months from the date of production of a certified copy of the judgment by either of the parties. The writ petition is accordingly allowed to the extent indicated above. No order as to costs. Petition Allowed. .