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2012 DIGILAW 2747 (ALL)

Shanti Singh v. Shyam Narain Gupta

2012-11-29

PANKAJ MITHAL

body2012
JUDGMENT Pankaj Mithal,J. Heard Sri K. Shahi, learned counsel for the defendant revisionist and Sri A.K. Singh, learned counsel for the plaintiff respondent. 2. This is a revision by a tenant arising out of a suit for arrears of rent and eviction which has been decreed by the small causes court vide judgment and order dated 18.08.2012. 3. Two points have been raised in this revision. First about the rate of rent and second regarding the availability of benefit under Section 20(4) of U.P. Act No.13 of 1972. 4. The premises in dispute is a shop which is part of house No.C-30/25B-2, Maldhaiya, Varanasi. It is admitted to the parties that the shop is covered by the provisions of U.P. Act No.13 of 1972. 5. According to the defendant revisionist the rent of the shop in question was only Rs.500/- per month whereas the plaintiffs respondents alleges that it was Rs.1500/- per month. On the point of rate of rent none of the parties adduced any documentary evidence and the court below was faced only with the oral evidence of the parties which was in conflict with one another. 6. The primary burden to prove the rate of rent as alleged i.e. Rs.1500/- per month was upon the plaintiff respondent and he could not prove it rather in the earlier litigation under Section 21 of U.P. Act No.13 of 1972 he had come up with a case that the rent was Rs.3500/- per month and later withdrew the said suit when his application to amend the release application so as to reduce the rent to Rs.1500/- per month was rejected. The defendant revisionist in the said release application has also objected to the rate of rent but as the release application was withdrawn there was no adjudication. 7. In view of above, it is apparent that the plaintiff respondent himself was not very clear about the rate of rent and in the absence of any positive evidence to prove the same, I am of the opinion that the court below erred in holding that the rent of the shop was Rs.1500/- per month w. e. f. March, 2003. 8. Learned counsel for the revisionist contends that he had deposited a sum of Rs.47000/- during the pendency of the suit and therefore he is liable to be extended the benefit of Section 20(4) of U.P. Act No.13 of 1972. 9. 8. Learned counsel for the revisionist contends that he had deposited a sum of Rs.47000/- during the pendency of the suit and therefore he is liable to be extended the benefit of Section 20(4) of U.P. Act No.13 of 1972. 9. The aforesaid deposit made by the defendant revisionist is subsequent to the notice of demand/determination of tenancy dated 11.10.2010 which was replied on 09.11.2010. The said deposit was made by the defendant revisionist in a misc. case under Section 30 of U.P. Act No.13 of 1972. 10. It is well settled that any deposit of rent after the service of notice and determination of tenancy would not enure to the benefit of the tenant for the purposes of Section 20(4) of the Act. 11. No amount of rent was ever deposited by the petitioner other than the above amount under Section 30 of the Act. 12. In view of above, even though the rate of rent is held to be Rs.500/- per month, the defendant revisionist cannot be extended the benefit of Section 20(4) of the Act so as to save her eviction from the shop in question. 13. Accordingly the revision is partly allowed. The rate of rent is reduced from Rs.1500/- per month to Rs.500/- per month but the decree for the eviction of the defendant revisionist from shop in dispute as directed by the court below is upheld subject to above modification. 14. On the prayer made by the counsel for the defendant revisionist to grant some reasonable time to vacate the shop in dispute she is allowed four months time from today to vacate it and to handover its possession to the plaintiff respondent provided she furnishes an undertaking on affidavit in the court below within a period of one month from today that she will vacate and handover peaceful possession of the shop before the expiry of the above period of four months and deposits the entire arrears and damages as demanded by the court below @ Rs.500/- per month and continues to deposit damages for the future use and occupation for the above four months with effect from 1st December, 2012 @ Rs.1000/- per month by the 10th of each succeeding month. 15. Revision is partly allowed.