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2009 DIGILAW 3149 (ALL)

Gajendra Singh v. Ratna Kewalramani

2009-09-16

PRAKASH KRISHNA

body2009
JUDGMENT Prakash Krishna J. The present revision has been filed under Section 25 of the Provincial Small Cause Courts Act and is directed against the judgment and decree dated 6-10-1998 passed by the Judge, Small Causes Court/XI Additional District Judge, Agra in SCC Suit no. 16 of 1997 whereby and whereunder the court below has decreed the suit for recovery of arrears of rent, damages and ejectment of the applicant who was the tenant of a portion of house no. 32A/A-572 Kamla Nagar, Agra on a monthly rent of Rs. 1200/- besides the water charges and electric charges. 2. Facts of the case may be noticed in brief. After termination of the tenancy by means of a notice dated 15-3-1997 served under Section 106 of Transfer of Property Act, SCC suit no. 16 of 1997 was filed on the pleas inter alia that the defendant applicant was a tenant of the house no. 32A/A-572 Kamla Nagar, Agra leaving one room. The tenancy has been determined by means of a notice dated 15-3-1997 served on 17-3-1997. Inspite of service of the notice, the defendant tenant has neither paid the arrears of rent since February, 1996 nor he vacated the tenanted accommodation. The said property was let out in the year 1992 with the understanding that he will obtain an allotment order in his favour under the provisions of U.P. Act No. 13 of 1972, but failed. The suit was contested by filing a written statement. However, the defence of the tenant defendant was struck of for non-compliance of provisions of Order 15 Rule 5 CPC, as amended in the State of U.P. The plaintiff opposite party led the evidence in support of her case. The suit has been decreed exparte by the judgment dated 6-10-1998 which is under challenge. 3. Before proceeding further, it may be noticed that there is no dispute with regard to the service of notice dated 15-3-1997. There appears to be no dispute between the parties as far as relationship of the landlord and tenant is concerned. Although in the notice it was stated by the landlady that the defendant tenant was permitted to occupy the disputed accommodation as a licensee, but he started claiming himself as a tenant, a notice determining the tenancy under Section 106 of Transfer of Property Act was given. Although in the notice it was stated by the landlady that the defendant tenant was permitted to occupy the disputed accommodation as a licensee, but he started claiming himself as a tenant, a notice determining the tenancy under Section 106 of Transfer of Property Act was given. The order striking of defence of the defendant applicant under Order 15 Rule 5 CPC has also attained finality as the same has not been challenged before me. Nor any such plea by the learned counsel for the applicant challenging the legality and validity of the said order, was raised. 4. Sri Madhav Jain, learned counsel for the applicant in support of the revision has urged that the notice determining the tenancy is invalid as there is no demand of arrears of rent therein. He submits that the demand of arrears of rent is an essential ingredient of such a notice, specially when the provisions of U.P. Act No. 13 of 1972 are applicable to the building. Secondly, the judgment under revision is vitiated as the court below has not recorded any finding holding that the defendant tenant was in arrears of rent for four months or more on the date of the notice. Lastly, in the notice, there is no averment that the tenancy of the defendant applicant is terminated by the notice and therefore, there is no termination of the tenancy. In reply, Sri B.D. Mandhyan, learned Senior Counsel for the plaintiff opposite party submits that there is material on record to show that the defendant tenant was in arrears of rent for more than four months on the date of the notice. The plaintiff landlady produced the evidence in the shape of oral and documentary, to show that the defendant tenant was in arrears of rent for four months and more on the date of the notice. There being no material to the contrary, the court below has rightly passed the decree for eviction etc. In other words, even if specific finding has not been recorded, the said finding is implicit in the judgment and this Court, while exercising the revisional jurisdiction, may satisfy itself as to whether there is any evidence on record to show that the defendant tenant was not in arrears of rent for four months or more on the date of the notice or not. The notice terminating the tenancy, according to the learned Senior Counsel, is valid and no interference in the present revision is called for. 5. Considered the respective submissions of the learned counsel for the parties and perused the record. 6. It is a case where the defendant tenant's defence was strike of. Noticeably, after the order striking of the defence, the defendant tenant for the reasons known to him, failed to participate in the proceeding of the suit and thus the suit proceeded exparte. The applicant had another remedy by way of an application under Order 9 Rule 13 CPC to get the exparte decree set aside but the said remedy was not availed by the applicant, instead the present revision has been filed. Obviously, the applicant has chosen the present remedy and obtained the stay order without making any deposit of the decretal amount, which is not so had he chosen to file an application under Order 9 Rule 13 CPC. Proviso to Section 17 of the Provincial Small Cause Courts Act obliges a defendant applicant to deposit the decretal amount or to furnish security for the same as a condition precedent for consideration of an application under Order 9 Rule 13 CPC. The point which I want to bring home is that the defendant tenant has neither deposited the admitted rent during the pendency of the suit as he was required to do so under Order 15 Rule 5 of CPC nor he has deposited the decretal amount as he has not resorted to the provisions of Order 9 Rule 13 CPC read with Section 17 of the Provincial Small Cause Courts Act. 7. So far as the question of validity of notice dated 15-3-1997 is concerned, it may be noticed that through this notice the landlady has demanded a sum of Rs. 1200/- per month as compensation w.e.f. 1-2-1996. The notice contains averments that the said amount has not been paid inspite of repeated request and demand. Para-4 of the said notice, which is material to meet the argument of the learned counsel for the applicant that there is no demand of arrears of rent, is reproduced below:- "4. That you have not paid the compensation at the rate of Rs. 1200/- per month and water tax w.e.f. 1-2-96 inspite of repeated requests and demands. Para-4 of the said notice, which is material to meet the argument of the learned counsel for the applicant that there is no demand of arrears of rent, is reproduced below:- "4. That you have not paid the compensation at the rate of Rs. 1200/- per month and water tax w.e.f. 1-2-96 inspite of repeated requests and demands. This is to call upon you to please pay the entire compensation and water tax due within one month of the receipt of this notice. Further you also pay Rs. 250/- as cost of this notice to my client within one month of the receipt of this notice. In case of your failure to make the payment, you will be liable to ejectment also on the ground of default." 8. It is difficult to say that in the face of para 4 reproduced above, there is no demand of arrears of rent. She has come out with the case in the notice that the accommodation was let out without there being an allotment order and whatever amount was paid by the defendant was, in the eyes of law, a compensation for use and occupation and that his possession is unauthorised one. An application for release has already been filed which was pending in the court of ADM (Civil Supplies)/RCEO, Agra but it is not proceeding due to delaying tactics adopted by the tenant. In para-6 of the notice it has been stated in clear terms that the status of the noticee is that of a licensee and the licence is revoked through this notice. It has been further provided that if the noticee considers himself as a tenant, the tenancy is terminated through this notice and was called upon to vacate the portion of house no. 32A/A-572, Kamla Nagar, Agra on the expiry of 30th day of receipt of the notice. For the sake of convenience, para-6 of the notice is reproduced below:- "6. That your status is not of a tenant, at the best it is of a licencee. That also against the provisions of U.P. Act 13/72. The licence is revoked through this notice. 32A/A-572, Kamla Nagar, Agra on the expiry of 30th day of receipt of the notice. For the sake of convenience, para-6 of the notice is reproduced below:- "6. That your status is not of a tenant, at the best it is of a licencee. That also against the provisions of U.P. Act 13/72. The licence is revoked through this notice. If you consider yourself as a tenant, your tenancy is terminated through this notice and you are called upon to vacate the portion of H.No. 32A/A 572, Kamla Nagar, Agra and handover vacant possession of the same to my client abovenamed on the expiry of thirteeth day of the receipt of this notice, failing which suitable legal action will be taken against you at your risk and cost. Please note that this notice is without prejudice to my client's rights to evict in the proceedings u/s 16(i) (b) read with Sec. 12 of U.P. Act No. 13 of 1972 pending in the court of Rent Control & Eviction Officer, Agra." 9. In my considered view, the said notice fulfills all the ingredients of Section 106 of the Transfer of Property Act as also that of Section 20(2)(a) of U.P. Act No. 13 of 1972. Time and again, it has been held that a notice under Section 106 of the Transfer of Property Act should not be considered in a pedantic manner. It should be read as a whole and be interpreted not with a view to find out fault therein. If on a fair reading of the notice, the intention of the notice giver to terminate the tenancy after 30th day of receipt of the notice and also demand of arrears of rent is there, the notice is valid. In the case on hand, it is clearly stipulated that the tenancy of the noticee is terminated and 30 days' time to vacate the disputed accommodation has been granted. 10. A Division Bench of this Court in the case of Abdul Jalil Vs. Haji Abdul Jalil, 1974 ALJ 381, has considered various kinds of notices that usually come before Court and has categorized them into 'valid' and 'invalid' notices. Notices falling in category-C therein have been held to be valid. In the said category, the following kind of notice falls: "I do not want to keep you as my tenant. Haji Abdul Jalil, 1974 ALJ 381, has considered various kinds of notices that usually come before Court and has categorized them into 'valid' and 'invalid' notices. Notices falling in category-C therein have been held to be valid. In the said category, the following kind of notice falls: "I do not want to keep you as my tenant. You are therefore given this notice and required to vacate the premises on the expiry of 30 days from the date of service of notice on you." 11. On a comparison of the notice of category-C with the notice in question, it would be clear that the necessary averments in both the notices are parallel and, therefore, such a notice, as has been held by the Division Bench of this Court, is valid. The arguments to the contrary, therefore, do not call for acceptance. The reliance placed by the learned counsel for the applicant on a judgment of learned Single Judge in Babu Ram Dubey Vs. Kailash Nath Verma 1982(1) ARC 16 is misplaced one. Therein the notice giver asked the noticee to pay "All arrears within four days otherwise a suit for ejectment will be filed..." In that notice, obviously 30 days' time was not given, instead four days' time was given and was therefore rightly held to be 'invalid', which is not so here. 12. It was then urged that since the landlady was treating the defendant as licensee, there was no demand in the said notice, demanding the arrears of rent. In other words, there was no relationship of landlord and tenant in between the parties. In this connection, reference was made to Section 20(2)(a) of U.P. Act No. 13 of 1972 as also the judgment of learned Single Judge in the case of Santosh Kumar Shah Vs. The Elgin Mills Company Ltd. 1982 ARC 185. Pointedly, a query was put by the Court as to what is the status of the applicant, on his own showing. Sri Madhav Jain, learned counsel for the applicant very fairly states that the applicant treated himself as a tenant of the disputed accommodation. This being so, the nature of the arrears of dues towards use and occupation of the disputed accommodation is in the nature of arrears of rent and it has been already demonstrated that a demand for arrears of rent was made through para-4 of the notice, reproduced above. This being so, the nature of the arrears of dues towards use and occupation of the disputed accommodation is in the nature of arrears of rent and it has been already demonstrated that a demand for arrears of rent was made through para-4 of the notice, reproduced above. The ratio laid down in the case of Santosh Kumar Shah (supra) is not applicable for the simple reason that in the said notice, there was not even a whisper making a demand of arrears of rent. The notice involved in that case has been reproduced in para-8 of the report. The ratio laid down in the above case is not of any help as it was given in a different factual background. 13. Even otherwise also, the applicant having failed to raise the question of validity of notice before the trial court, he cannot be permitted to agitate it for the first time in the revision. 14. Then, it was urged that there being no specific finding on default in payment of rent as required under Section 20(2)(a) of the Act, the court below was not justified in passing the decree for recovery of arrears of rent and ejectment against the tenant. The case of the plaintiff landlady is that the defendant tenant is in arrears of rent since February, 1996 inspite of repeated requests and demands. She has filed the last money order coupon sent by the defendant tenant for the month of January 1996 for Rs. 1200/-. She has further led the evidence that after January 1996, no rent was paid by the defendant tenant inspite of repeated demand. The defendant tenant has failed to produce any evidence to the contrary. In the absence of any material to show that the defendant tenant has paid the rent for the subsequent months, the inference drawn by the trial court that he is in arrears of rent since February 1996 is perfectly justified and call for no interference. No attempt was made by the defendant tenant to produce any evidence to show that he has paid the rent for the period subsequent to January 1996, Even no such plea appears to have been raised in the memo of revision. Before this Court, the tenant applicant has not made any attempt to show that he was not in arrears of rent as was alleged by the landlady. Before this Court, the tenant applicant has not made any attempt to show that he was not in arrears of rent as was alleged by the landlady. There is no strait jacket formula for recording a finding of default. On a fair reading of the judgment, it is evident that the court was conscious about the requirement of Section 20(2)(a) of the Act No. 13 of 1972 and has rightly concluded that the rent for the months subsequent to January 1996 has not been paid by the defendant tenant. Notice admittedly is dated 15-3-1997 and as such, evidentally the tenant was in arrears of rent for more than four months on the date of the notice. 15. It was also argued that no opportunity to cross examine the plaintiff's witnesses was afforded to the applicant. But the learned counsel for the applicant could not substantiate the said plea. The defendant tenant himself has chosen not to appear in the case and to avail the opportunity of cross examining the plaintiff's witnesses, court is not obliged to adjourn the case suo motu and invite the defendant to cross examine the plaintiff's witnesses. 16. Learned counsel for the applicant did not press any other point in support of the revision. 17. In view of the above discussions, the revision is dismissed with costs. Time upto December 31, 2009 is granted to the applicant to vacate the premises in dispute, provided he files an undertaking on affidavit before the court below within one month to the effect that he will vacate the accommodation in dispute on or before 31-12-2009 and will handover its vacant peaceful possession to the landlady. Within the aforesaid period the applicant tenant is also required to deposit the entire rent/damages as per the decree as for the period upto 31-12-2009, after adjusting the money, if any, already deposited. If the applicant fails to vacate the disputed accommodation on or before 31-12-2009, he shall be liable to pay the damages at the rate of Rs. 5,000/- per month from the date of exparte interim order passed in the revision i.e. 7-1-1998 till the date of actual delivery of possession.