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2012 DIGILAW 44 (ALL)

Ram Kumar v. A. K. Tadaiya

2012-01-05

PRAKASH KRISHNA

body2012
Hon'ble Prakash Krishna,J.:- The present revision has been filed against the judgment and decree dated 4th of July, 1992 passed by the Additional District Judge, Lalitpur in SCC suit No. 5 of 1990 whereby the suit filed by the opposite party landlord for recovery of arrears of rent and ejectment from the shop no.28/2 situate in Mohalla Subhashpura Jhansi Sagar Marg has been decreed. The facts in brief are as follows:- The aforesaid SCC suit No.5 of 1990 was instituted by Abhinandan Kumar Tadaiya on the allegation that the defendant tenants are in arrears of rent w.e.f. 14th of February, 1984 to 14th of June, 1990. They have failed to pay the arrears of rent in spite of notice of demand dated 9th of January, 1990 which was served on 12th of January, 1990. They have, thus, committed default in payment of rent and therefore, they are liable for eviction. The suit was filed against three defendants. Out of them only the present applicant Ram Kumar contested the suit on the please inter alia that he is not in arrears of rent and the money was tendered after the receipt of notice. It was further pleaded that service of notice alone on him is not valid as the original tenant was his father Babu Lal and after his death the tenancy right has been inherited by widow and daughter of Babu Lal also. On the basis of the pleadings of the parties, as many as four issues were framed by the trial Court. Under issue no.1 the trial Court has found that the defendant tenant has failed to tender the rent in spite of service of notice of demand within the period of thirty days. Under issue no.4 it was held that the notice was served on the contesting defendant tenant and its non service on other defendants is of no consequence as they have come forward to contest the proceedings. Besides the above, it is the contesting defendant who alone is in occupation of the shop in question. Heard Sri S.A. Sharma, learned counsel for the applicants and Sri Sanjiv Kumar, learned counsel for the plaintiff opposite party. The learned counsel for the applicants submits that the tenant has paid the rent and is not in arrears of rent and therefore, the decree is liable to be set aside. Heard Sri S.A. Sharma, learned counsel for the applicants and Sri Sanjiv Kumar, learned counsel for the plaintiff opposite party. The learned counsel for the applicants submits that the tenant has paid the rent and is not in arrears of rent and therefore, the decree is liable to be set aside. The learned counsel for the applicants could not refer any material before this Court to show that after receipt of the notice the tenant paid the rent. His submission that during the pendency of the suit, the tenant has deposited the rent in the Court is of no consequence. The fact remains that after the receipt of notice, the tenant has not paid the rent as required under law. The Court below has held that tender of the rent by an insured registered letter is not a valid payment in view of the decision of this Court in the case of Salik Ram Upadhia Vs. B. Jai Gopal Singh, AIR 1955 Alld. 353. The said letter in the present case was not delivered to the plaintiff. As against the above, the learned counsel for the applicant could not place any material before me to take a different view of the matter. In this view of the matter, the finding recorded under Issue no.1 is perfectly justified. Then, it was urged that the petitioner has deposited some rent in a separate proceeding relating to release under section 21 of the U.P. Act No.13 of 1972. Admittedly, there is no material before this Court nor was produced before the trial Court with regard to those proceedings and therefore, no notice of the said plea can be taken. Any other point was not pressed. There is no merit in the revision. It may be placed on record that the revision was dismissed in default on 29.7.2009 against which a Special Leave Petition was filed before the Apex Court and the Apex Court remanded the matter back to this Court to decide the revision afresh on merits expeditiously. Thereafter, when the matter was listed it was again dismissed in default on 17th of August, 2011 and was restored on 20th of December, 2011. As discussed above, the revision is, therefore, dismissed with costs.