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2012 DIGILAW 801 (ALL)

Babu Ram Saxena v. Sri Kishan Chand Kausar

2012-04-02

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.— 1. Heard Sri Siddharth Srivastava, learned counsel for the petitioner, Ms. Pallavi Gupta, learned counsel for the respondent and perused the record. 2. The petitioner was the tenant of the disputed premises. The petitioner had filed a Misc. Case No. 162 of 1981 (Babu Ram Saxena Vs. Kishan Chand Kausar) purporting to be under section 30(1) of the U.P. Act No. 13 of 1972 (in short the "Act") seeking permission to deposit the rent in the Court on the basis of an alleged refusal of some money-orders by the Landlord. The concerned court granted permission to the petitioner to deposit the rent under section 30(1) of the Act. The petitioner continued to deposit the rent under section 30 of the Act. 3. The record of the case indicates that the respondent through his counsel sent a notice to the petitioner on 14.06.1995 by registered post and also to the counsel of the petitioner. In paragraph 6 of the said notice, the petitioner was called upon to pay the entire arrears of rent and taxes and was also called upon to pay future rent regularly to the landlord. The said notice was replied to by the petitioner. He continued to deposit the rent under section 30 of the Act in Misc. Case No. 162 of 1981 despite the receipt of notice dated 14.06.1995. 4. The record of the case further reveals that subsequently another notice dated 04.12.1995 was sent by the respondent to the petitioner terminating his tenancy and calling upon him to pay the entire arrears of rent and taxes within one month from the date of receipt of the notice. 5. Subsequently, the plaintiff/respondent filed S.C.C. Suit No. 17 of 1996 (Kishan Chand Kausar Versus Babu Ram Saxena) against the petitioner for recovery of arrears of rent and ejectment on the alleged ground of default. The above mentioned suit was contested by the defendant/petitioner by filing his written statement. 6. The following issues were framed by the Trial Court:- (a) Whether the rate of rent of the disputed premises was Rs. 40/- or Rs.46/- per month? (b) Whether the petitioner has committed default in not paying the rent and the plaintiff was entitled for recovery of rent from 1.1.1993 till the institution of the suit for Rs. 1702/-? 6. The following issues were framed by the Trial Court:- (a) Whether the rate of rent of the disputed premises was Rs. 40/- or Rs.46/- per month? (b) Whether the petitioner has committed default in not paying the rent and the plaintiff was entitled for recovery of rent from 1.1.1993 till the institution of the suit for Rs. 1702/-? (c) Whether the petitioner is liable to be evicted on the ground of non payment of rent and making structural alteration in the disputed building? 7. The Trial Court decided all the three issues against the plaintiff-respondent. 8. The S.C.C. Suit No. 17 of 1996 was dismissed by the court below by order dated 21.11.2005. 9. Being aggrieved and dissatisfied with the said order, the respondent preferred a S.C.C. Revision, which was registered as S.C.C. Revision No. 26 of 2005. The Revisional Court by order dated 20.08.2011 allowed the said revision of the plaintiff-respondent. Hence the present writ petition. 10. Learned counsel for the respondent has submitted that the Trial Court has totally ignored the effect of the first notice dated 14.06.1995, whereby the petitioner was called upon to pay the entire arrears of rent and taxes and future rent regularly to the respondent/landlord. In spite of the said notice, the petitioner continued to deposit rent under Section 30 of the Act in the said Misc. Case No. 162 of 1981. Learned counsel for the respondent further submitted that in view of the aforesaid notice dated 14.06.1995 demanding arrears as well as future rent, the petitioner had been left with no right to continue to deposit the rent under Section 30 of the Act in the said Misc. Case No. 162 of 1981, the order passed wherein had stood lapsed and became ineffective on account of the receipt of notice dated 14.06.1995 by the petitioner. Therefore, the deposits under Section 30 of the Act, if any made after the receipt of the said notice dated 14.06.1995 by the petitioner in the said Misc. Case No. 162 of 1981 were illegal and invalid and the petitioner could not have taken the benefit of the said deposits. It was further submitted that the receipt of the notice dated 14.06.1995 issued by the respondent has not been denied by the petitioner and in fact reply to the said notice was also given by the petitioner. 11. Case No. 162 of 1981 were illegal and invalid and the petitioner could not have taken the benefit of the said deposits. It was further submitted that the receipt of the notice dated 14.06.1995 issued by the respondent has not been denied by the petitioner and in fact reply to the said notice was also given by the petitioner. 11. Thus in the nutshell the contention of the respondent/landlord is that after the issuance of notice dated 14.06.1995 demanding the arrears of rent and all future rent, the deposit of rent under section 30 of the Act was illegal and invalid and could not have been taken into consideration by the court below. 12. Perusal of the order passed by the Trial Court indicates that this issue has not been dealt with by the Trial Court as to whether the deposit made under section 30 of the Act in Misc. Case No. 162 of 1981 by the petitioner after the receipt of notice dated 14.06.1995 from the respondent/landlord demanding the arrears of rent as well as all future rent is valid. 13. Since this Court cannot enter into questions of fact and reappraisal of evidence, I am of the considered view that this writ petition can be kept pending for some further time in the interest of justice and a direction can be issued to the concerned Trial Court to frame and decide the question on the point that "whether the deposit made under section 30 of the Act in Misc. Case No. 162 of 1981 after the receipt of notice of demand dated 14.06.1995 by the petitioner was valid". 14. For the aforesaid reasons, the concerned Trial Court is directed to frame and decide the issue "whether the deposit made under section 30 of the Act in Misc. Case No. 162 of 1981 after the receipt of notice of demand dated 14.06.1995 by the petitioner was valid". The respective parties will be allowed to lead their evidence before the Trial Court in accordance with law and finding shall be returned by the concerned Trial Court within a period of three months positively from the date, a certified copy of this order is produced before him. Learned counsel for the petitioner will thereafter file a certified copy of the order of the court below before this Court. Learned counsel for the petitioner will thereafter file a certified copy of the order of the court below before this Court. The respective parties shall appear on 17.04.2012 before the court concerned and a certified copy of this order will be furnished by the parties. 15. It is further provided that the parties shall cooperate in the proceedings and the Court shall not grant any unnecessary adjournments. 16. Let the matter be listed again on 23rd July, 2012. Till then, the petitioner shall not be evicted from the disputed premises. 17. It is made clear that this matter may not be treated as tied up or part heard with me. _