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2009 DIGILAW 2753 (ALL)

Sri Om Prakash Goyal v. Shri Chandra Kumar Jain

2009-08-03

PRAKASH KRISHNA

body2009
JUDGMENT Prakash Krishna, J. This revision has been filed under Section 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 6-12-2007 passed in SCC suit no. 3 of 1996. The revision is at the instance of the plaintiff of the aforestated suit. 2. The plaintiff instituted aforestated suit for recovery of arrears of rent, damages and ejectment, on the pleas inter alia that the defendant was the tenant at the rate of Rs. 450/- per month of property no. 53, situate at Purani Mandi, Firozabad. Besides the rent, the defendant was also liable to pay water tax at the rate of 6-25% per annum. It was further pleaded that the defendant has committed default and has not paid the rent in spite of notice of demand and termination. The defendant is in arrears of rent since 31-8-1994. 3. The suit was contested by the defendant opposite party on number of pleas. On the basis of the pleadings of the parties, the court below framed three issues, as mentioned in the body of the judgment. It has been found under issue no. 2 that the notice was validly served on the defendant. Under issue no. 1, it has been found that the defendant has complied with the provisions of Section 20(4) of U.P. Act No. 13 of 1972, therefore, the defendant is liable to be relieved against the eviction. Consequently, under issue no. 3, the suit was dismissed so far as the ejectment part is concerned. However, it was provided that the rent deposited under Section 20(4) of the Act can be withdrawn by the plaintiff. 4. Notices were sent to the defendant opposite party by registered post as well as by ordinary process. This Court by the order dated 14-5-2009 has found that the defendant opposite party has been served. It may be placed on record that affidavit of service stating that the defendant opposite party has refused to accept the notice has been filed. 5. The only point urged by the learned counsel for the plaintiff applicant is that the court below has committed illegality in extending the benefit of Section 20(4) of the Act to the defendant opposite party without recording a finding as to whether the amount deposited is in sufficient compliance of the aforesaid provision. 5. The only point urged by the learned counsel for the plaintiff applicant is that the court below has committed illegality in extending the benefit of Section 20(4) of the Act to the defendant opposite party without recording a finding as to whether the amount deposited is in sufficient compliance of the aforesaid provision. Elaborating the arguments, learned counsel for the applicant further submits that the finding recorded by the court below on the question of date of first hearing in paragraph-16 of the judgment is also incorrect. In paragraph-17 of the judgment, the court below has laid the burden on the plaintiff to show that the money deposited by the defendant is insufficient. The submission is that since the defendant opposite party was claiming the benefit of the said Section, the burden lies upon him. 6. Before this Court, the plaintiff has filed an affidavit sworn on 21-6-2009. In the said affidavit, it has been stated that the tenant has not deposited the total amount due on the first date of hearing. The tenant has deposited a sum of Rs. 56,500/- vide application dated 15-10-1996 while he was required to deposit a sum of Rs. 64,450/-. In paragraphs-8 and 9 it has been stated that there is shortfall in deposit with regard to water tax and interest. Ultimately, in paragraph-10 it has been stated that the money thus deposited by the defendant tenant is short by Rs. 7,950/-. Further averment is that after 15-10-1996, the tenant neither paid nor deposited the monthly rent, house tax, water tax regularly during the pendency of the suit. As noticed above, the defendant tenant has preferred not to appear or contest the present revision. The question as to whether the amount deposited by the tenant is sufficient or there is shortfall, requires to be gone into. In the absence of the defendant opposite party, it is not appropriate for this Court to pass any order. The interest of justice would be served, if the parties are directed to appear before the trial court who will decide the said issue in the light of the respective submissions of the parties. I find sufficient force in the argument of the learned counsel for the applicant that the court below has wrongly placed the entire burden on the plaintiff applicant with regard to the compliance of Section 20(4) of the Act. I find sufficient force in the argument of the learned counsel for the applicant that the court below has wrongly placed the entire burden on the plaintiff applicant with regard to the compliance of Section 20(4) of the Act. It was incumbent upon the court below, before extending the benefit of the said provision, as contained in Section 20(4) of the Act, to have addressed the issue as to whether the requisite amount, as required thereunder, has been deposited by the party concerned who is claiming the benefit of the said Section. The court below has obviously failed to discharge its duty. The order and judgment of the court below, therefore, cannot be allowed to stand. 7. The revision succeeds and is allowed and the finding recorded by the court below on issue no. 1 is, therefore, set aside with direction to the trial court to rehear and decide the said issue in the light of the observations made above, preferably within a period of six months from the date of production of certified copy of this order. By way of clarification, it may be added that no other point has been left open.