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Allahabad High Court · body

2009 DIGILAW 1339 (ALL)

ANUP SUD v. SUDHASHU DAWAR

2009-04-13

S.U.KHAN

body2009
( 1 ) HEARD learned counsel for the parties. ( 2 ) THIS tenants revision under Section 25, Provincial Small Causes Courts Act (PSCC Act) is directed against judgment and decree dated 28. 07. 2007 passed by J. S. C. C. / A. D. J. / Special Judge, E. C. Act, Allahabad in S. S. C. Suit No. 20 of 2004. Property in dispute is a flat of which applicant is tenant and opposite party is the landlord. Initially grand-father of the plaintiff was owner landlord of the house in dispute. Thereafter his wife became owner landlord and after her death on 05. 02. 2003, plaintiff became owner landlord. In the plaint, it was alleged that rate of rent was Rs. 3500/- per month apart from water and sewerage tax; that since 1st May 2003 rent had not been paid. Tenant admitted that since May, 2003 rent had not been paid, however he asserted that he was ready to pay but landlord plaintiff was not accepting the rent. With regard to water tax, tenant stated that he was not liable to pay the same and previous landlords, i. e. grand-father and grand-mother of the plaintiff, never demanded any water tax from him. ( 3 ) IT was also alleged in the plaint that an amount of Rs. 23,976/- was liable to be paid by the defendant as electricity dues, relief in that regard was also claimed in the plaint apart from relief of eviction and recovery of arrears of rent and water tax. Water tax was demanded from 1st April 2000. ( 4 ) THE tenant had asserted that the rate of rent was exactly 50% of the rent as asserted by landlord, i. e. 1750/- per month. As far as rate of rent is concerned, the court below in the impugned judgment found the version of the tenant to be correct and categorically held that rate of rent was Rs. 1750/- per month. ( 5 ) ISSUE No. 3 framed by the court below related to the applicability of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972) and as to whether defendant was entitled to the benefit of its Section 20 (4) or not? 1750/- per month. ( 5 ) ISSUE No. 3 framed by the court below related to the applicability of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972) and as to whether defendant was entitled to the benefit of its Section 20 (4) or not? By virtue of the said subsection, if on the first date of hearing, entire arrears of rent along with interest and cost of the suit are deposited, then decree for eviction may not be passed. Judgment of the court below is very detailed running into 20 pages, however the finding under issue No. 3 is extremely scatchy. It is discussed under the said issue that landlord asserted that even if rate of rent was held to be Rs. 1750/- per month still after adding the water tax, it would be more than Rs. 2000/- per month, hence by virtue of Section 2 (1) (g) of the Act, the Act would not be applicable. In my opinion, this argument is not tenable. Water tax is payable along with the rent and is treated to be part of the rent by virtue of Section-7 of the Act itself. Accordingly, if rent is less than Rs. 2000/- per month but it becomes more after adding the water tax, then it cannot be said that the Act ceases to apply for the reason that if Act ceases to apply, then water tax will not be payable along with the rent. ( 6 ) UNDER issue No. 3, the court below did not even mention the amount deposited by the tenant on the first date of hearing and the exact amount payable by the tenant in order to avail the benefit of the said sub-section. Admittedly an amount of Rs. 45,200/- was deposited by the tenant on 02. 09. 2004. ( 7 ) AS far as electricity dues are concerned, they cannot be treated to be part of the rent. Tenant may be liable to pay the electricity dues but still such dues do not become part of the rent, hence tenant is not required to deposit electricity dues in order to avail the benefit of Section 20 (4) of the Act. Tenant may be liable to pay the electricity dues but still such dues do not become part of the rent, hence tenant is not required to deposit electricity dues in order to avail the benefit of Section 20 (4) of the Act. ( 8 ) LEARNED counsel for both the parties argued in detail regarding quantum of court fees (as part of cost of suit) required to be deposited by the tenant under Section 20 (4) of the Act. Learned counsel for the landlord vehemently argued that actual court fees paid by the landlord on the plaint is liable to be deposited by the tenant. However, learned counsel for the tenant asserted that only court fees actually payable on eviction and actual arrears of rent ultimately found to be due is liable to be paid by the tenant and for that rate and arrears of rent as ultimately determined by the court below will have to be taken into consideration and not the rate of rent or the arrears of rent as claimed by the landlord. I have considered this question in detail in Mohd. Shahid Vs. A. D. J. , 2006 (63) ALR 850. Learned counsel for the landlord very vehemently argued at great length that the said view taken by me requires reconsideration. However, I am not inclined to take a contrary view. ( 9 ) ACCORDINGLY, revision is allowed. Impugned judgment and decree is set aside to the extent hereinafter indicated. Matter is remanded to the court below to decide only the question of benefit of Section 20 (4) of the Act. The court below shall specifically determine the quantum of taxes payable by the tenant under Section-7 of the Act till the date of first hearing on which the amount of Rs. 45,200/- was deposited by the tenant before the court below, i. e. 02. 09. 2004 (there is no dispute in between the parties that the said date was the date of first hearing ). Both the parties are directed to appear before the court below on 05. 05. 2009. The court below must make all efforts to decide the matter before summer vacations, however, that is merely a recommendation and not a direction. The actual direction is to decide the suit very very expeditiously. ( 10 ) THE amount of Rs. 12,000/- deposited under interim order dated 09. 05. 05. 2009. The court below must make all efforts to decide the matter before summer vacations, however, that is merely a recommendation and not a direction. The actual direction is to decide the suit very very expeditiously. ( 10 ) THE amount of Rs. 12,000/- deposited under interim order dated 09. 05. 2008 passed in this revision shall be returned to the tenant. The amount of Rs. 4000/- per month deposited as a condition of stay shall be permitted to be withdrawn by the landlord. The additional amount of Rs. 2250/- per month (over and above Rs. 1750/- per month) shall not be treated to be advance rent for any future period. It must be treated to have been paid only as a condition of stay and not refundable. .