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2012 DIGILAW 1708 (ALL)

Hawivan Begum v. Special Judge

2012-07-30

SUDHIR AGARWAL

body2012
JUDGMENT Sudhir Agarwal,J. 1. Heard Sri M.K.Gupta, learned counsel for the petitioner and Sri R.K.Dwivedi, learned counsel for the respondent No.2. 2. Writ petition is directed against revisional order dated 06.02.1990 passed by Special Judge, (Arthik Apradh), Etah allowing revision of respondent- tenant and dismissing the suit. While setting aside Trial Court's judgment dated 16.8.1985 decreeing suit regarding eviction, Revisional Court has come to the conclusion that entire rent due along with other expenses etc. was paid by tenant on the "first date of hearing" and therefore, he was entitled for benefit of Section 20(4) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972"). 3. Sri M.K.Gupta, learned counsel for the petitioner submitted that there was basic dispute regarding rate of rent, inasmuch as, according to the petitioner-landlord, it was Rs.150/- per month w.e.f. 1.1.1976 though according to the tenant-respondent No.2, it was only Rs.16/- per month. Sri Gupta submitted that he gave a conclusive evidence to prove rate of rent and acknowledgement executed by tenant himself on 1.1.1976, a copy whereof has been filed as Annexure 4 to the writ petition, but that has been discarded by Revisional Court being inadmissible in evidence. It is submitted that this approach of Revisional Court is wholly incorrect and has caused grave injustice to the petitioner. He also relied on this Court's decision in Moti Lal Vs. Smt. Nirmal Kumari, AIR 1986 All 270 to show that such a document was neither required to be registered or stamped and therefore, ought not have been discarded. 4. From the record and arguments advanced by learned counsel for the parties it appears admitted by both the parties that rent of premises in dispute if taken to be Rs.16/- per month, the same was deposited by respondent-tenant on the date of first hearing along with expenses, counsel fee, interest and hence being entitled for the benefit under Section 20(4) of Act, 1972, decree of eviction could not have been passed against him. On the contrary if it is taken to be Rs.150/- per month w.e.f. 1.1.1976, there is no compliance of requirement of Section 20(4) of Act, 1972 and therefore Revisional Court's order would not be sustainable. 5. On the contrary if it is taken to be Rs.150/- per month w.e.f. 1.1.1976, there is no compliance of requirement of Section 20(4) of Act, 1972 and therefore Revisional Court's order would not be sustainable. 5. The only question up for consideration, "whether Revisional Court has rightly discarded claim of petitioner-landlord with respect to rate of rent as Rs.150/- per month w.e.f. 1.1.1976 based on alleged Kabuliyatnama (Annexure 4 to the writ petition) which is said to have been executed by respondent-tenant admitting rent @ Rs.150/- per month w.e.f. 1.1.1976." 6. In the plaint (Annexure 5 to the writ petition), petitioner-landlord claimed rate of rent of premises in dispute at Rs.150/- per month. The default is said to have been committed w.e.f. 1.1.1978 whereafter notice was given to the tenant on 24.9.1979 requiring him to give rent @ Rs.150/- per month w.e.f. 1.1.1978 to 23.9.1979, which according to the petitioner-tenant comes to Rs.3115/- and subject to non payment, tenancy was terminated after 30 days. 7. It is admitted that petitioner's notice was replied by respondent-tenant vide reply dated 22.10.1979 stating that rate of rent was only Rs.16/- per month. The size of the shop in question was 25 ft. x 4 ft. and he also claimed to have paid rent up to July, 1979. In the written statement also, in para 1, rate of rent was stated by respondent-tenant as Rs.16/- per month. The petitioner, therefore, claimed to have received rent from respondent-tenant from January, 1976 to December, 1977 but admittedly no receipt or counter foil thereof have been placed before the Courts below to show that rent was paid by the tenant for the aforesaid period of January, 1976 to December, 1977 @ Rs.150/- per month and not Rs.16/- per month. The only document adduced by petitioner-landlord in support of his claim of rent @ Rs.150/- per month was Kabuliyatnama (Annexure 4 to the writ petition) and three witnesses, one who claims to have written the contents of the note in his own hand writing, second who claims that in his presence the said note was signed by tenant and third is a handwriting expert who has verified signature of respondent- tenant on the said note. 8. The first question would be, in my view, nature of aforesaid document. 8. The first question would be, in my view, nature of aforesaid document. Admittedly, it cannot be treated to be either a rent note or an agreement between the parties for the reason that such a document has necessarily to be a bilateral document. Apparently, it is a unilateral document said to have been written by respondent-tenant in favour of landlord acknowledging possession of property in question as also his consent to pay rent of the said property @ Rs.150/- per month in future on monthly basis. Nothing has been shown to this Court wherefrom it can be assumed that the said document need be registered. But this document as such cannot be held conclusive to demonstrate that it was ever given effect to even assuming what is being claimed by petitioner-landlord to be correct, unless it is shown that pursuant to the aforesaid document rent was actually paid by the respondent-tenant @ Rs.150/- per month to the landlord. The petitioner-landlord admits receipt of rent after 1.1.1976 up to December, 1977. He had not adduced any evidence to show actual rent received by him month to month for the aforesaid period was Rs.150/- per month. Neither any receipt nor counter foil of the receipt have been adduced before the Courts below. 9. On the contrary, it is admitted that property in question is subject matter of municipal assessment and an assessment was made in 1979 wherein information was given by the petitioner that rental income from the property in dispute was Rs.16/- per month and assessment of the property in question was made in 1979 by the local body considering rental income from property in dispute at the rate of Rs.16/- per month. This fact is not disputed. A municipal assessment is made on the basis of information provided by landlord himself and it is part of statutory procedure. Landlord himself given information of rental income of Rs.16/- per month of the property in dispute and on the basis thereof got assessment of property in dispute done and he paid the house tax accordingly. In absence of anything otherwise to show that he was ever paid rent by the tenant at a rate which is higher than the rent actually claimed to have been paid by the tenant, I do not find that findings recorded by Revisional Court in effect warrants any interference. In absence of anything otherwise to show that he was ever paid rent by the tenant at a rate which is higher than the rent actually claimed to have been paid by the tenant, I do not find that findings recorded by Revisional Court in effect warrants any interference. The ultimate conclusion drawn by Revisional Court is that rate of rent was only Rs.16/- per month and there was no default entitling the landlord for a decree of eviction against the tenant since the entire outstanding dues were paid in terms of Section 20(4) of Act, 1972 and find the said conclusion based on evidence and there is no manifest error of law or otherwise justify this court's interference. 10. In view of the above, I do not find it a fit case warranting interference under Article 226 of the Constitution of India. 11. Dismissed. 12. Interim order, if any, stands vacated.