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2010 DIGILAW 3466 (ALL)

Pradeep Kumar Agarwal v. Meena Jaiswal

2010-11-10

PRAKASH KRISHNA

body2010
Prakash Krishna, J.;- The present revision has been filed under Section 25 of the Provincial Small Causes Court Act against the judgment and decree dated 19th March, 2007 passed by Shri S.M. Haseeb, the Additional District Judge, Court No. 6, Kanpur Nagar in S.C.C. Suit No. 73 of 2005, whereby the suit filed by the plaintiff-applicant for recovery of arrears of rent and ejectment has been dismissed on the ground that the defendant tenant has deposited the arrears of rent on the first date of hearing and has waived the notice by accepting the rent. 2. The background facts may be noticed in brief: 3. The plaintiff-applicant instituted the aforesaid suit for recovery of arrears of rent and ejectment in respect of ground floor of premises No. 28, Industrial Estate Fazalganj, Kanpur Nagar as described in the plaint. It was pleaded that the defendant was a tenant on a monthly rent of Rs.5,500/- and as such the provisions of U.P. Act No. 13 of 1972 are not applicable and that the tenancy has been terminated by means of notice dated 30th April, 2005, served on 4th May, 2005. 4. The suit was contested by the defendant on the ground that the tenancy has not been determined. He continues to be a legal tenant of the property in question and as such there is no question of grant any damages etc. 5. The trial court has dismissed the suit on the ground that since the plaintiff landlord has accepted the rent upto 30th April, 2005 and he stated that the tenancy was upto February, 2005, therefore, there is relationship of the landlord and defendant-tenant between the parties. It was further found that the defendant-tenant has made the deposit of arrears of rent, in the court. 6. Heard Shri S.K. Srivastava, learned counsel for the applicant. List revised. None is present on behalf of the defendant-opposite party. 7. Contention of the learned counsel for the applicant is that in view of the admitted fact that the monthly rate of rent was Rs.5,500/-, the provisions of U.P. Act No. 13 of 1972 will not be applicable. Further submission is that mere acceptance of rent without any further action does not amount the waiver of the notice. 8. Considered the above submissions of the learned counsel for the applicant and I find sufficient force therein. 9. Further submission is that mere acceptance of rent without any further action does not amount the waiver of the notice. 8. Considered the above submissions of the learned counsel for the applicant and I find sufficient force therein. 9. In view of the fact that the rent is more than Rs.2000/- per month, the building in question is exempted from the operation of the provisions of U.P. Act No. 13 of 1972. 10. The trial court committed an error in holding that as the landlord has accepted rent for the period subsequent to February, 2005, the relationship of landlord and tenant exists between the parties. The said relationship of landlord and tenant has been determined by means of notice given under Section 106 Transfer of Property Act. This being so, it should have decreed the suit for ejectment. It appears that during pendency of the present revision, the tenant has vacated the disputed accommodation and handed over its vacant possession to the plaintiff-applicant on 31st March, 2009. Therefore, the question of passing of decree of ejectment does not arise. The only dispute remains with regards the arrears of rent/damages for the period of 19th March, 2007 till 31st March, 2009, as stated in paragraph-5 of the affidavit filed in support of application no. 193949 of 2008. The suit for recovery of arrears of rent/damages for the aforesaid period is consequently, decreed. The judgment of the trial court is set aside. 11. In the result, the present revision succeeds and is allowed. The suit for recovery of arrears of rent/damages for the period of 19th March, 2007 to 31st March, 2009 at the rate of 5,500/- per month is decreed with costs throughout.