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2013 DIGILAW 2676 (ALL)

Pramod Kumar v. Khushyal Das

2013-10-28

VISHNU CHANDRA GUPTA

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JUDGMENT Vishnu Chandra Gupta, J. 1. Heard Shri K.D. Tripathi, learned counsel for the tenant/revisionist and Shri Prashant Mishra , learned counsel for the land lord/respondent. 2. The instant revision under section 25 of the Provincial Small Causes Court Act has been preferred against the judgment and decree dated 17.2.2010 passed by the Judge, Small Causes Court/Additional District Judge, Court No. 8, Agra in SCC Suit No. 16 of 2008. 3. The trial court decreed the suit of the land-lord for ejectment and arrears of rent of Rs. 12300/- and notice fee of Rs. 550 /- alongwith 6% interest from the date of filing of the suit on dated 26.3.2008 till the date of vacation of shop in question . The shop was ordered to be vacated within a period of one and half month. It was also observed therein that the plaintiff-respondent will be entitled to Rs. 900/- per month from the date of decree till the date of delivery of possession of shop as measne profit with cost. 4. Relevant facts for deciding this revision are that father of land lord Khushyal Das had purchased a open plot measuring 150 Sq.yard from the society known as "Pratap Sahakari Awas Samiti Ltd., Agra" by means of sale-deed dated 17.7.1986. The plot was constructed in the year 1988. After the death of his father in 1996 Khushyal Das, the plaintiff respondent became the owner of the shop/house in question. The shop in question was let out at the rent of Rs. 300 /- per month on 1.10.2001 to the revisionist. It was enhanced to Rs. 500/- per month on 1.10.2002. Lastly the rent was enhanced from Rs. 700/- per month to Rs. 900/- per month on 1.10.2006. The rent including tax of the shop in question was not deposited by the tenant-revisionist with effect from 1.1.2007. Thus, the amount of Rs. 12,300/- is due against the tenant-revisionist from 1.1.2007 to 20.2.2008. Apart from it, the tenant-revisionist has made alteration/construction over the shop in question, due to which the cost of the shop has been deprecated. Under these circumstances, the land lord/ respondent has sent notice to the tenant-revisionist regarding termination of the tenancy through registered post on 15.1.2008 . After service of notice he filed the aforesaid suit for ejectment, recovery of arrears of rent and damages for use and occupation. 5. The suit was contested by the tenant-revisionist. Under these circumstances, the land lord/ respondent has sent notice to the tenant-revisionist regarding termination of the tenancy through registered post on 15.1.2008 . After service of notice he filed the aforesaid suit for ejectment, recovery of arrears of rent and damages for use and occupation. 5. The suit was contested by the tenant-revisionist. Both parties adduced their evidence. The trial court after considering the evidence adduced by the parties decided the suit wherein it has been held that shop in question is not covered under the provisions of Uttar Pradesh Urban Building (Regulation of letting, Rent Eviction ) Act, 1972 (Hereinafter referred to as "Act No. 13 of 1972"), hence bar of section 20 (4) of the Act is not attracted. The trial court also held that tenant has failed to establish that the landlord was not the owner of the property in question. It was further held that rent of the shop in question was not Rs. 1000/- per month but actually it was Rs. 700/- per month. It was further held that valid and legal notice under section 106 of the Transfer of Property Act (hereinafter referred to as the 'Act') was given by the land lord to the tenant terminating the tenancy. Consequently the suit was decreed for recovery of rent of Rs. 12300/- alongwith 6% simple interest from the date of institution of the suit and also for eviction from the shop in question. 6. It has been submitted by the learned counsel for the tenant-revisionist that part of the case of plaintiff-respondent regarding rate of rent per month was disbelieved by the trial court. It is further submitted that the trial court held that rent of the shop in question was Rs. 700/- per month on the date of presentation of the suit but actually the rent was Rs.500/- per month. It has been wrongly held that provisions of Act No. 13 of 1972 are applicable as the shop in question was not the construction of the year 1988. It is further submitted by the learned counsel for the revisionist that the plaintiff-respondent pressurised the revisionist to enhance the rent at Rs. 1000/- per month but the revisionist did not accept the same. It is further submitted by the learned counsel for the revisionist that the plaintiff-respondent pressurised the revisionist to enhance the rent at Rs. 1000/- per month but the revisionist did not accept the same. Thereafter tenant-revisionist remitted the rent of January, 2008 through money order, but when the same was also not accepted by the land-lord, the tenant-revisionist has deposited the rent under section 30 (1) of Act No. 13 of 1972 in Misc. Case No. 32 of 2008 in the court of Civil Judge ( Junior Division), Agra. As such the tenant-revisionist has not committed any default in making the payment of rent. It is further submitted that since no notice was given under section 20 (4) of Act No 13 0f 1972, the suit is liable to be dismissed. 7. Learned counsel for the tenant-revisionist submits that the rate of rent as alleged by the plaintiff-respondent has not been found correct, as such the basis of suit seems to have been incorrect. Therefore, on this count alone the suit is liable to be dismissed. He further submits that the findings recorded by the trial court regarding rate of rent is perverse. The tenant has deposited entire rent @ Rs. 500/- per month. Hence on this issue, the suit is also liable to be dismissed because no cause of action accrues for issuing notice because the entire rent was already deposited under section 30 (1) of Act No. 13 of 1972. In these circumstances, the suit cannot be decreed for arrears of rent and ejectment. 8. Per contra, the learned counsel for the plaintiff-respondent has submitted that construction of property in suit was completed in the year 1988, as such the provisions of Act no. 13 of 1972 are not applicable. It is further submitted that the tenancy was month to month and determinable at Will. Notice under section 106 of Act was sent by registered post on 15.1.2008 to the tenant, which was duly served upon him on 20.1.2008, but instead of that the same was not complied with. The suit was filed for arrears of rent commencing from 1.1.2007. It is further submitted that the suit was contested challenging the ownership of landlord alleging that the property belongs to Nazul land. This also gives a ground for ejectment. 9. So far as the finding in regard to application of Act no. The suit was filed for arrears of rent commencing from 1.1.2007. It is further submitted that the suit was contested challenging the ownership of landlord alleging that the property belongs to Nazul land. This also gives a ground for ejectment. 9. So far as the finding in regard to application of Act no. 13 of 1972 is concerned the same was recorded by the trial court on the basis of material available on record. The plaintiff-respondent established that open land was purchased by his father in 1986 and thereafter constructed the same in 1988. No other reliable evidence contrary to it has been given by the tenant-revisionist. Hence it cannot be said that finding recorded by the trial court is perverse on this score. 10. It is not denied that notice under section 106 of Act has been served upon the tenant-revisionist but the same has not been complied with by the tenant-revisionist. No illegality has been pointed out in the notice under section 106 of Act. As the provisions of U.P. Act No. 13 of 1972 are not applicable so there is no need to serve the notice under section 20 (4) of Act No.13 of 1972. It is not in dispute that the notice was served upon the tenant-revisionist and the amount of rent was remitted thereafter through money order to the landlord @ Rs. 500/- per month and the tenant-revisionist has deposited the same under section 30 (1) of Act No. 13 of 1972. Therefore, the service of notice is also not in dispute. The tenancy was rightly and legally determined under section 106 of Act as the tenancy was month to month and determinable at Will of landlord. 11. So far as challenge of ownership of landlord in regard to property in question is concerned, the tenant is not disputing the purchase of land by the father of present landlord and does not state that any person other than land lord has put him in possession as tenant and the tenant did not adduce any legal evidence in support of his contention, therefore, it cannot be said that the findings arrived at by the trial court regarding ownership of landlord in respect of property in question is perverse. 12. 12. So far as the finding regarding rate of rent is concerned, the trial court after considering the oral evidence on preponderance of probability found that the rate of rent was Rs.700/- per month. The appreciation of evidence cannot be said to be against the principle of law. Hence the finding recorded by the trial court cannot said to be illegal or perverse. 13. Admittedly the amount of rent was not paid to the landlord as determined by the trial court. Therefore, it cannot be said that any illegality or jurisdictional error has been committed by the trial court in passing the impugned judgment and decree against the tenant-revisionist. 14. In view of the above, the judgment and decree passed by the trial court is affirmed. The revision lacks merit and is accordingly dismissed with costs. 15. At last the learned counsel for the tenant submitted that six months time may be granted to vacate the tenanted premises. Considering the fact that premises was let out for commercial purpose it is provided that in case the tenant-revisionist furnishes the undertaking within two weeks from today before the trial court to this effect that he will vacate the premises in question within three months from the date of this order and further deposits the entire arrears of rent and damages within one month from today, the eviction proceedings will remain suspended for three months, failing of which the landlord/plaintiff-respondent will proceed to execute the decree.