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2010 DIGILAW 2568 (ALL)

Munna Khan v. Ahmedi

2010-08-23

RAKESH TIWARI

body2010
JUDGMENT Rakesh Tiwari, J. -Heard learned counsel for the parties and perused the record. Smt.Ahmedi landlady respondent filed Suit No. 23 of 2007 for eviction from the premises in dispute against the petitioner who is tenant, claiming rent from January, 2005 to May, 2007 amounting to Rs. 560/- before the Judge Small Causes Court, Jhansi. The suit was contested by the petitioner tenant denying allegations made in the plaint. The Judge Small Causes Court, Jhansi vide his judgment and order dated 16.7.2008 directed the tenant to deposit rent of Rs.560/- as claimed by the landlady and Rs.20/-. per month damages for use and occupation as well as the tenant was directed to vacate and handover the peaceful possession of the premises in suit to the landlady. The petitioner has challenged the judgment and order dated 16.7.2008 in SCC Revision No. 99 of 2008, Munna Khan versus Smt. Ahmedi before the Revisional Court. The District Judge/Special Judge (E.C.) Act, Jhansi dismissed the revision of the petitioner vide his judgment and order dated 24.7.2010. 2. Aggrieved by the aforesaid judgment and order dated 24.7.2010 of the Revisional Court, the petitioner has come up in this writ petition. 3. Learned counsel for the petitioner has challenged the order of the Courts below on the ground that the Revisional Court has dismissed the revision of the petitioner by affirming the order of the trial Court without application of mind as from perusal of the tender it is apparent that the tenant petitioner had deposited the entire rents which was claimed by the landlady; that the petitioner is neither defaulter nor any dues are unpaid towards rent and that both the Courts below have returned incorrect findings by the impugned orders which is illegal, arbitrary, unjustified and are liable to be set aside. 4. Learned counsel for the petitioner has also argued that a perusal of the notice shows that the tenancy was not terminated by the said notice as such it is defective and for this reason also the orders of the courts below are bad. 5. After hearing learned counsel for the petitioner and on perusal of the record it appears that respondent Smt. Ahmedi is the owner and landlady of house no. 300, Mohalla Mukaryana, Jhansi in which the petitioner is tenant of one room, one store room on the ground floor on monthly rent of Rs.20/- . 5. After hearing learned counsel for the petitioner and on perusal of the record it appears that respondent Smt. Ahmedi is the owner and landlady of house no. 300, Mohalla Mukaryana, Jhansi in which the petitioner is tenant of one room, one store room on the ground floor on monthly rent of Rs.20/- . When rent of the disputed accommodation since January, 2005 has not been paid by the tenant inspite of repeated request by the landlady, hence by notice dated 7.6.2007 arrears of rent were demanded and tenancy of the petitioner was also terminated. 6. It appears from the written statement of the petitioner that he had contested the suit on the ground that he had paid the rent up to April, 2005 by hand as the landlady had refused to accept the rent and thereafter he had sent the same by money order which covered up to the period 31.12.2006 and was accepted by Smt. Ahmedi, the respondent landlady in this writ petition. It further appears that after receiving notice the tenant again sent rent for the period 1.1.2007 to 31.12.2007 amounting to Rs.240/- through money order which was refused by the landlady and as such it is claimed that the tenant deposited the same in Misc. Case No. 32 of 2007, under Section 30 of U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction ) Act, 1972. 7. Learned counsel for the petitioner has relied upon the judgment rendered in Janki Vashdeo Bhajwani and another versus Indusind Bank Ltd. and others. In that case, the Court considered the scope of word "act" in Order 3 Rule 1 and 2 of the Code of Civil Procedure with regard to power of attorney holder. It also considered the scope of such power of attorney holder to dispose of on behalf of the principal and held that it extends only to depositions in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. Term "acts" would not include deposing in place of and instead of the principal for acts done by the principal and not by power of attorney holder, hence he cannot dispose for principal in respect of which principal is liable to be cross-examined. This case in fact supports the respondent as discussed later in the judgment. 8. Term "acts" would not include deposing in place of and instead of the principal for acts done by the principal and not by power of attorney holder, hence he cannot dispose for principal in respect of which principal is liable to be cross-examined. This case in fact supports the respondent as discussed later in the judgment. 8. The petitioner has also filed a supplementary affidavit bringing on record the receipts of the money order as well as his application under Section 30(1) of U.P. Act No. 13 of 1972. 9. From perusal of the judgments of the courts below it is apparent that the tenant had paid the rent of the accommodation in dispute up to April, 2005. The landlady claimed that the tenant defaulted in payment of rent w.e.f. January, 2005 whereas per contra, the case of the petitioner tenant is that he had paid the rent up to April, 2005 and had sent the rent through money order on 16.1.2006 when she refused to accept the same. It further appears from perusal of the judgments of the courts below that the courts below came to the conclusion that the tenant had admitted that the landlady had issued rent receipts to him in respect of the rent paid by him. He also stated that he has also having rent receipts with him but he neither produced the rent receipts before the courts below nor in evidence nor proved the same whereas the landlady produced photocopy of the counterfoil of rent receipt dated 9.3.2005 which contains receipts up to December, 2004. According to the landlady, the tenant had paid the rent to her up to December, 2004. The Revisional Court has also noticed that the money order does not show as to what is the period for which the rent is being tendered through money order, hence the burden of proof was upon the tenant to show that he has actually paid the rent for the period in question. The Court below has found that there is no proof regarding payment of rent for the period of default as claimed by the landlady. 10. Both the Courts below have recorded concurrent findings of facts that the tenant has defaulted in payment of rent for the period commencing from January, 2005 to April, 2005. The Court below has found that there is no proof regarding payment of rent for the period of default as claimed by the landlady. 10. Both the Courts below have recorded concurrent findings of facts that the tenant has defaulted in payment of rent for the period commencing from January, 2005 to April, 2005. In so far as the question as to whether the notice terminating the tenancy of the petitioner is concerned, the courts below found that the notice sent by the Advocate on behalf of the landlady that the tenant harasses her and as such she does not want to keep him as tenant the tenant has been called to handover the possession of the accommodation in his tenancy within one month and clear all his arrears of rent due. English translation of the relevant extract of the notice is as under:- " my client is very old and disabled, and therefore, you harass her in payment of rent and thus, my client does not want to keep you tenant in the said room and Kothari.............................................." ........ Therefore, by this notice you are called upon to pay rent of a room and Kothari situated at ground floor of house no. 300 of my client for the period January, 2005 to May, 2005 amounting to Rs. 560/- within one month of receipt of notice and handover the possession of the same after occupying the same for a period of one month......". 11. The contention of learned counsel for the petitioner is that since the words "your tenancy is hereby terminated" have not been mentioned in the notice, hence this notice is invalid and cannot be treated as termination of tenancy. The Courts below considering the aforesaid facts and relying upon the judgment in the case of Kailash Narain versus Murli Manohar, held that where the notice clearly shows the intention of termination of tenancy only, hence it was a valid notice, even though the words used regarding termination of tenancy have not been specifically mentioned. 12. It may also be noted here that the landlady is above 80 years of age and is physically challenge person as such she could not have deposed in the court. The contention of learned counsel for the petitioner that the burden of proof was upon her to have denied having the receipt of money order has not been discharged is not correct. The contention of learned counsel for the petitioner that the burden of proof was upon her to have denied having the receipt of money order has not been discharged is not correct. In this regard it may be stated that it was the petitioner who had not mentioned the period of rent being tendered by him to the landlady in the money order and it was he who had asserted before the court below that the landlady had refused to accept the rent when it was offered in second time, therefore, the burden of proof was upon him to have proved the same. The landlady had produced the counterfoil of the rent receipts paid by the petitioner tenant up to December, 2004 before the courts below. She had also produced the witnesses in support of her case. Since the case of the petitioner was that the landlady had refused to accept the rent, he could have moved an application for her evidence through a Commissioner. 13. In the case of Janki Vashdeo Bhajwani (supra) it has been held that that if the principal is unable to appear in court a commission for recording his/her evidence may be issued. It is settled law that a person who claims a fact in his case is liable to prove the same before the Court. Since the petitioner claimed that the landlady had refused to accept the rent through money order and if she being the physically challenge person could not have come to the Court, the liability was upon the petitioner to have moved an application for taking her evidence through a Commissioner appointed for this purpose. Therefore, the case relied upon supports the landlady rather than the petitioner also for the reasons that the landlady had discharged her burden of proof by producing the rent foils establishing that the petitioner is a defaulter and producing holder of power of attorney in support of her case who had deposed the facts in his kowledge. 14. For the reasons stated above, the writ petition is dismissed. No order as to costs. 15. At this stage, learned counsel for the petitioner states that some reasonable time may be granted to the tenant to vacate and handover peaceful possession of the premises in suit to the landlady. 14. For the reasons stated above, the writ petition is dismissed. No order as to costs. 15. At this stage, learned counsel for the petitioner states that some reasonable time may be granted to the tenant to vacate and handover peaceful possession of the premises in suit to the landlady. Considering the facts and circumstances of this case, the Court directs the petitioner tenant to vacate and handover peaceful possession of the premises in suit to the landlady within a period of 3 months from today and shall continue to pay the damages for use and occupation of the premises in suit at the rate of Rs.150/- per month.