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2013 DIGILAW 531 (UTT)

VIMAL SETHI v. SANDEEP KUMAR

2013-08-17

PRAFULLA C.PANT

body2013
JUDGMENT Hon’ble Prafulla C. Pant,J. This revision, preferred under section 25 of Provincial Small Cause Courts Act, 1887, is directed against the judgment and decree dated 04.10.2008, passed by Judge, Small Cause Court/ I Fast Track Court, Nainial, in SCC Suit No. 21 of 2005, whereby said court has decreed the suit for eviction of the defendants (revisionists), and also for recovery of arrears of rent and mesne profits. 2. Heard learned counsel for the parties, and perused the record. 3. Brief facts of the case are that defendants were inducted as tenants in the shop (property no. 17/191) situated in Railway Bazar, Haldwani, in the year 1996 by the then landlady Jaijaiwanti Devi on rent @ Rs. 1,000/ per month for which a rent note was executed. The present plaintiffs (respondents) purchased the property no. 17/191 of Railway Bazar, Haldwani, vide sale deed dated 23.11.2004. Before said transaction, the rent was already increased by the then landlady to Rs. 2,200/- per month. The plaintiffs instituted the suit in the year 2009, stating that the defendants (tenants) committed default in payment of rent since 01.03.2005, and terminated the tenancy by getting served notice under section 106 of Transfer of Property Act, 1882, and the suit was filed for eviction of defendants and recovery of rent and mesne profits. 4. The defendants (present revisionists) contested the suit before the trial court and filed their written statement in which they admitted that they are the tenants of the shop in question. They further admitted that the rate of rent has already been increased to Rs. 2,200/- per month. However, they pleaded that the rent of Rs. 2,200/ per month included the taxes payable by the defendants as such the actual rent was less than Rs. 2,000/- payable by the defendants. On its basis, it is pleaded in the written statement that the provision of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act 13 of 1972) are applicable to the building, and the tenancy cannot be terminated by getting served a simplicitor notice under section 106 of Transfer of Property Act, 1882. 5. The trial court after recording the evidence, and hearing the parties found that rent of Rs. 5. The trial court after recording the evidence, and hearing the parties found that rent of Rs. 2,200/- per month did not include the taxes payable by the tenants as such the provisions of U.P. Act, 13 of 1972 were not applicable to the case. Holding that the tenancy stood validly terminated, the suit filed by the plaintiffs was decreed by the trial court for the eviction of the tenants (present revisionists), and also for recovery of arrears of rent and mesne profits. Aggrieved by said judgment and decree dated 04.10.2008 passed by the Judge, Small Cause Court/I Fast Track Court, Nainital, in SCC Suit No. 21 of 2005, this revision is filed. 6. Learned counsel for the revisionist referred to section 2(g) and section 7 of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and submitted that the taxes payable by the tenants were part of the rent of Rs. 2,200/- per month. 7. Section 2 of U.P. Act 13 of 1972 provides as to which buildings, the Act would not be applicable. Clause (g) of Section 2 of the Act provides that any building, whose monthly rent exceeds two thousand rupees shall be out of clutches of the Act. In the present case admitted rate of rent of the shop in question is Rs. 2,200/- per month. D.W.1 Vimal Sethi (present revisionist no. 1) in his examination in chief in the form of affidavit has stated in para 4 that the rate of rent from the time of Jaijaiwanti Devi (previous land lady) was Rs. 2,200/- per month but it included taxes. In para 6 of the affidavit (examination in chief) D.W.1 Vimal Sethi has further stated that he paid rent of December 2004, January 2005 and February 2005 @ 2,200/- per month (in all Rs. 6,600/- ) by pay order to the plaintiffs. It is also stated in the examination in chief that initially the rate of rent in the year 1996 was only Rs.1,000/- per month. As such increase in the rate of rent is not denied by the defendants (revisionists). It is also not disputed that the previous landlady transferred the property in question to the plaintiffs. It is also admitted that the notice sent by the plaintiffs under section 106 of Transfer of Property Act, 1882, was received by them. The only question before this Court is as to whether Rs. It is also not disputed that the previous landlady transferred the property in question to the plaintiffs. It is also admitted that the notice sent by the plaintiffs under section 106 of Transfer of Property Act, 1882, was received by them. The only question before this Court is as to whether Rs. 2,200/- per month included tax payable by the tenants or not, if so, is the actual rent is less than Rs. 2,000/- to bring the building under the clutches of U.P. Act, 1972. 8. Plain language of section 7 of the Act shows that if there is no contract in writing contrary, apart from the rent, the tenant is required to pay water tax, and 25% of house tax. The defendants failed to show any written contract with plaintiffs or the previous land lady which discloses that rent of Rs. 2,200/- per month included the taxes payable by the tenants. What is referred on behalf of the revisionists/ defendants is the rent note of 1996, under which the agreed rate of rent was ‘ 1,000/ per month. Even said document does not provide anywhere that the taxes were included in said rent of Rs.1,000/- per month. As such, this Court is of the view that the trial court has rightly accepted the case of the plaintiffs, and decreed the suit. It is also relevant to mention here that an intimation was sent by Jaijaiwanti Devi the then landlady who communicated to the defendant No.1 vide letter dated 17.03.2005, that she has sold the property to the plaintiffs and the rent of Rs. 2,200/- shall be payable to them. This letter also does not disclose if the taxes were included in the rent. 9. On behalf of the revisionist it is also argued that the trial court has not framed any issue on the point whether the rent Rs. 2,200/- per month includes taxes or not. In the opinion of this Court argument advanced on behalf of the revisionist has no force as it is not a regular suit but a small cause suit. In the proceedings of the small cause suit, in view of provisions contained in Orders L (50) of the Code of Civil Procedure, 1908, issues are not required to be framed. In the opinion of this Court argument advanced on behalf of the revisionist has no force as it is not a regular suit but a small cause suit. In the proceedings of the small cause suit, in view of provisions contained in Orders L (50) of the Code of Civil Procedure, 1908, issues are not required to be framed. What is required to be done under Rule 4 of Orders XX (20) of the Code is that there must be finding on the points of determination. Even in recording evidence only memorandum of statement needs to be recorded as provided in Rule 13 of Order XVIII (18) of the Code. On perusal of the impugned judgment, this Court finds that though the point of determination on inclusion/exclusion of taxes in the rent is not specifically mentioned but the facts, evidence and arguments have been discussed at length and finding has been given that the rent of Rs. 2,200/- per month does not include the taxes. 10. Attention of this Court is drawn of behalf of the revisionist to the case of Hari Kishan vs. Rajendra Kumar ARC 1995 (1) page 37, in which it has been held that for recovery of house tax, landlord can bring action separately while the rent is recoverable through the Small Cause Court. However, this case law, in the opinion of this Court, is of little help to the revisionists (defendants) for the reason that on its basis in the present case it cannot be said that the parties had agreed to include the house tax in the rent of Rs. 2,200/- per month. 11. For the reason, as discussed above, this Court finds that there is no force in this revision which is liable to be dismissed, but considering that the defendants are running a shop, reasonable time requires to be given to them to vacate the premises. 12. Accordingly, the revision is dismissed with the observation that the revisionists are allowed to vacate the shop in question by 31st of December, 2013, failing which the plaintiffs can get the decree executed through the court. Costs easy.