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2010 DIGILAW 1641 (ALL)

Om Prakash Bhardwaj v. Maqsood Ali

2010-05-18

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the parties. 2. This petition by the landlord is directed against a revisional order dated 11.11.1999 allowing the revision of the respondent tenant against a decree of eviction and arrears of rent dated 6.1.1999 and dismissing the suit. 3. The petitioner landlord had earlier filed a Suit No. 7 of 1994 for arrears of rent and eviction claiming default from 1.9.1989 against the respondent tenant from the disputed shop where he was a sitting tenant. However, the suit was decided in terms of a compromise dated 25.1.1995 where the respondent tenant undertook to deposit the entire remaining amount of rent of Rs. 3700/- by 30.6.1995 and the rent was also enhanced to Rs. 200/- per month w.e.f. 1.4.1995. However, neither the rent in accordance to the compromise was paid nor the respondent tenant deposited the entire amount forcing the petitioner to file an execution case. Since rent was not being paid w.e.f. 1.4.1995 at the rate of Rs. 200/- per month, the petitioner determined the tenancy vide notice dated 20.8.1996 and demanded rent from 1.4.1995 together with water tax. The respondent tenant neither tendered the rent nor vacated the premises forcing the petitioner to file a fresh Suit No. 16 of 1996 before the Judge Small Cause demanding rent w.e.f. 1.4.1995 apart from water tax and cost etc. After contest, the suit was decreed vide judgment dated 6.1.1999 on the ground of default and benefit of section 20(4) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) was also denied. Aggrieved, the respondent tenant preferred a revision which has been allowed by the impugned order holding that there was substantial compliance of section 20(4) of the Act and relieved the tenant from eviction. It is urged on behalf of the petitioner that the court below had erred in extending the benefit of Section 20(4) of the Act even though the entire amount as required was not deposited. It is also urged that even non deposit of cost under Section 35-B would dis-entitle the tenant from protection of Section 20(4) of the Act. 4. The court below, without there being any pleading to that effect, has allowed adjustment of the alleged excess payment and has also held that, assuming it could not do so, default of Rs. It is also urged that even non deposit of cost under Section 35-B would dis-entitle the tenant from protection of Section 20(4) of the Act. 4. The court below, without there being any pleading to that effect, has allowed adjustment of the alleged excess payment and has also held that, assuming it could not do so, default of Rs. 80/- was condonable and would amount to substantial compliance of Section 20(4) of the Act. It further went on to hold that non deposit of cost was a question of fact and the same, if due, could be recovered under Section 35-B C.P.C. 5. The Apex Court in the case of Nand Lal Agarwal vs. Ganesh Prasad Sah & others, was confronted with a situation as to whether a landlord was entitled to adjust the excess payment towards arrears of rent. It held that without the tenant calling upon the landlord to adjust the excess payment, he cannot seek such a right or defence in a suit for eviction. However, learned counsel for the respondent has urged that the Apex Court in the case of Mam Chand Pal vs. Shanti Agarwal, has held that excess payment could be adjusted. In Mam Chand Pal's case the specific question whether adjustment could be made without the tenant calling upon the landlord to do so, was not an issue. In fact in the alternative, while considering the argument of the tenant, the Court found that the electricity charges were not to be deposited under Section 20 (4) of the Act and which could have been adjusted and since there was a minor deficiency of Rs.17/- in a payment of about Rs.6000/-, it found it be hyper technical. Thus, the ratio laid down in Mam Chand's case would not apply in the present proceedings. Apart from that, a learned Single Judge of this Court in the case of Kaushalya Devi & others vs. Special Judge, Gorakhpur & others, after approving the ratio laid down in Nand Lal Agarwal's case, has gone on to hold that the tenant had no right to raise a plea of adjustment of excess payment at the stage of revision. There is nothing on record to show that any plea or argument for adjustment was raised before the trial court. 6. There is nothing on record to show that any plea or argument for adjustment was raised before the trial court. 6. It is evident from the record that the tenant even in pursuance of the compromise decree in Suit No. 7 of 1994 had not deposited the entire amount forcing the petitioner to file execution case. Despite being relieved of eviction in the earlier suit, he continued to be a chronic defaulter forcing the petitioner to file a fresh suit. A Division Bench of this Court in the case of Mahesh Chand Sharma vs.II Add. District Judge, Meerut & others, was called upon to answer the question "whether it is necessary for a tenant to deposit the arrears of rent decreed in an earlier suit to get the benefit of sub-section (4) of Section 20 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972." The Division Bench after examining in detail the provisions of law and various judgments including the decision of the Apex Court in the case of Khadi Gramodyog Mandal vs. Ram Chandraji, answered the question in the affirmative. However, this decision has been distinguished by the revisional court only on the ground that an execution for the arrears had been filed by the petitioner. In the opinion of the Court, merely because an execution was filed, the ratio laid down by the Division Bench would not stand diluted, specially when it was supported by a decision of the Apex Court. In fact the execution was not satisfied even till the date of the first hearing of the suit, as would be evident from the perusal of the pleadings in the writ petition which have not been denied. Thus, even on this score, the revisional judgment cannot be sustained. 7. Admittedly cost awarded by the trial court on 19.8.1997, 10.4.1997, 31.3.1997, 5.3.1997 and 4.2.1997 was never deposited by the tenant and an issue was raised by the petitioner before the revisional court that non deposit of cost under Section 35-B C.P.C. would not allow the tenant to avail the benefit of Section 20 (4) of the Act and reliance for this proposition was placed upon a single Judge decision of this Court rendered in the case of Kalyani Prasad vs. VII Addl. District Judge, Kanpur & others. District Judge, Kanpur & others. However, the revisional court ignored the ratio on the ground that deposit or non deposit of cost is a question of fact and the petitioner could have secured the cost by moving an application under Section 35-B C.P.C. 8. The Trial Court has found that the cost awarded on different dates was not paid. It is also so stated in paragraph 10 of the writ petition but there is no specific denial and it is not stated that the cost was ever paid or tendered. The question of deposit of cost was not a question of fact but is a question of record. The revisional court had to examine the record of the Trial Court for the said purpose. As it was only a matter of record, the revisional court erred in holding otherwise. As observed above, even before this Court there is no denial that the cost was not deposited. =The learned Single Judge in the case of Kalyani Prasad (supra) has extensively held that even a claim of being relieved of eviction under Section 20(4) of the Act is a defence in paragraphs 22 to 24 to the following effect : "22. The expression, which has been used in clause (b) is 'defence'. What is exactly meant by this expression has to be considered. In my view, taking into consideration the object for which Section 36-B was newly added by the Central Amendment Act No. 104 of 1976, it will be reasonable to think that the legislature wanted that the defendant must pay the adjournment costs before he is allowed to set up any plea in defence against the plaintiff's claim. One aim of his defence being shout out, the defendant is compelled to pay the adjournment costs. There seems to be no good reason for treating Section 20(4) as not par-taking the nature of defence in a landlord and tenant suit under Section 20 of the U.P. Act No. XIII of 1972. Indeed, very often in a suit under Section 20(2)(a) for the eviction of a tenant, the tenant may have no other defence except a defence based on his compliance with sub-section (4) of Section 20 of the Act. The said provision provides the tenant a defence against the relief sought by the landlord for his eviction. Indeed, very often in a suit under Section 20(2)(a) for the eviction of a tenant, the tenant may have no other defence except a defence based on his compliance with sub-section (4) of Section 20 of the Act. The said provision provides the tenant a defence against the relief sought by the landlord for his eviction. It is true that very often the expression 'defence' is used as equivalent to the defence set up in a written statement by the defendant. Under Order VIII Rule 1 C.P.C. It is laid down as follows; "Written statement--(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence." In Order XV Rule 5 C.P.C. a provision has been made for striking off the defence. It may be contended that what is meant is striking off the written statement of the defendant containing his defence. However, these provisions cannot be construed, so as to lay down that a defence of the defendant is confined to his written statement. It should be seen that before the amendment of Order VIII Ruled 1 C.P.C. by the Central Amendment Act No. 104 of 1976, it was optional for a defendant to file his written statement. Of course, the provision was that the Court could compel a defendant to file his written statement, and then he was bound to comply with the court's directions. After the aforesaid amendment, it has been laid down that the defendant shall, at or before, the first hearing or within such time as the Court may permit him, present the written statement of his defence. However, despite this change, I apprehend that even now the correct position in law would be that a defendant may without filing a written statement address the court that the plaintiff's suit is per-se not maintainable on account of certain legal infirmities for example, clear want of jurisdiction or some such other plea. I concede that this proposition of mine may be treated as highly controversial and it may be contended that no defence, apart from that set out in the written statement of the defendant, can be taken into consideration by the court. I concede that this proposition of mine may be treated as highly controversial and it may be contended that no defence, apart from that set out in the written statement of the defendant, can be taken into consideration by the court. However, even if I may be wrong in my thinking on this point, I think that under Section 35-B the language used is different from that used in the aforesaid provisions. A bar is placed in the way of the defendant from further prosecuting his defence. It is not necessary to treat the defence as contained only to written statement. Any plea which the defendant is setting up with a view to defeat the plaintiff's claim is, in my opinion his defence. The learned counsel for the petitioner contended that Section 20 (4) has been held to the mandatory and placed reliance on Sumer Chand v. Atma Ram where a learned Judge of this Court held that the provisions of sub-section (4) of Section 20 are mandatory in character inspite of the use of the word 'may' therein. In my view, the said aspect of the matter is hardly relevant. The fact that a provision is held to be mandatory, does not lead to the conclusion that such a provision cannot be the subject-matter of defence. Very often pleas in defence are based on mandatory provisions of law. The real controversy is not but whether the said provision is mandatory or is not, but whether a plea based there on could be held to be a defence barred under Section 35-B C.P.C. 23. There is another aspect of the matter which may be usefully examined in this contest. A plea under Section 20 (4) is not always a pure plea based on law. Very often such plea may require evidence to be led by the parties. In particular, the proviso to Section 20 (4) of the Act can only be considered on the basis of the evidence of the parties. It is true that such evidence may not be evidence at the trial but it may be evidence with reference to the plea under Section 20 (4) of the Act. When parties lead evidence in reference to a plea under Section 20 (4), the Court has to examine such evidence and then to decide whether the tenant should be given benefit of Section 20 (4). When parties lead evidence in reference to a plea under Section 20 (4), the Court has to examine such evidence and then to decide whether the tenant should be given benefit of Section 20 (4). I do not think that if an exercise is done by a Court, it can be said that the defendant is not setting up a defence when he sets up a plea under Section 20 (4) of the Act. I shall take an example to further elucidate the point which I am seeking to make. Suppose it be held that without filing a written statement, it is open to a tenant to set up a plea of compliance with the provision contained in Section 20 (4) of the Act. He moves an application seeking the benefit of this provision if the land lord contests the said application and claims that the proviso to Sec. 20 (4) is applicable then it will be inevitable for the Court to record evidence. If during these proceedings the defendant-tenant applies for adjournment to lead the evidence and the said prayer is allowed by the trial court on payment of adjournment costs to be paid on or before the date next following the date next following the date of such order then if such costs are not paid on the next date, will the Court be not in a position to invoke Section 35-B on the ground that the plea of the defendant based on Section 20 (4) of the Act does not amount to a defence under Section 35-B. If I were to accept the contention of the learned counsel for the petitioner then it must necessarily be held that in a situation of this kind when adjournments costs have been allowed against the defendant-tenant and if such costs are not paid before the next date, still, the Court will not be in a position to debar the tenant from prosecuting his defence on the ground that the plea under Section 20 (4) of the Act is not 'defence' in terms of Section 35-B. In my view, this interpretation will defeat the object for which Section 35-B was enacted by the legislature, namely, to compel the payment of adjournment costs on penalty that the defendant will be debarred from prosecuting his defence. The Court will be justified in not allowing such a defendant-tenant to prosecute his plea in defence based on Section 20 (4) of the Act if adjournment costs are not paid in the said proceedings. 24. In the facts of the instant case, the position is more simple if I may say so. The plea based on Section 20 (4) was a plea set up in the written statement of the defendant-tenant. On the basis of the said plea, a specific issue was framed by the trial Court being issue No.1 as follows "Whether the defendant is entitled to the benefit of Sec. 20 (4) of the Act XIII of 1972". Therefore, there can be little doubt that even if one where to accept the contention of Sri Agarwal that it is possible for a tenant to raise the plea under Section 20 (2) of the Act without filing a written statement, still, in the fact, of the instant case there was not so. The plea was raised in the written statement and was therefore, undoubtedly a part of the tenant's defence. When the tenant failed to pay the adjournment costs then he was debarred from claiming the benefit of Section 20 (4) of the Act which benefit he had claimed in his defence set out in his written statement. Therefore, I accept this contention of Sri Grover and hold accordingly." Therefore, even non deposit of the cost awarded under Section 35(B) C.P.C. would disentitle the petitioner from claiming benefit under Section 20(4) of the Act. Accordingly, only on this ground the revision should have been dismissed. 9. For the reasons above, this petition succeeds and is allowed and the impugned revisional order is hereby quashed and that of the trial court is restored.