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2013 DIGILAW 7 (ALL)

Panna Devi (Smt) and Others v. Kristo Dayal

2013-01-02

SUDHIR AGARWAL

body2013
Sudhir Agarwal, J.— 1. Heard Sri A.C. Tripathi, learned counsel for the petitioners and Sri A.K. Tiwari, Advocate assisted by Sri Tarun Tiwari, Advocate for respondent. 2. It is contended that the Revisional Court has set aside Trial Court's decree and judgment dismissing suit of respondents and decreeing the same to the extent of 2/3 of disputed accommodation directing the petitioners to vacate same though at no point of time petitioners were given any notice as contemplated in Section 20(2)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"), which the petitioners never defaulted and, therefore, no decree could have been passed against petitioners. 3. Sri Tripathi, learned counsel for the petitioners contended that Small Cause Suit No. 344 of 1980 was filed by respondent alleging that Sri Shiv Nath Yadav, husband of petitioner no. 1 and father of petitioners no. 2 to 5, was a sub-tenant illegally inducted and given possession of disputed accommodation by one Jhimal Gaur, defendant no. 1 in the said suit. 4. A notice dated 29.05.1980 was given to Sri Jhimal Gaur, demanding from him rent from January, 1980 and onwards and Sri Jhimal Gaur was directed to get the accommodation vacated from petitioners who were alleged therein as sub-tenant without consent of landlord and thereafter the suit was filed impleading Sri Jhimal Gaur as defendant no. 1. In the suit also the case set up by respondent was that Sri Shiv Nath Yadav was a sub-tenant and unauthorizedly came into possession of disputed accommodation, hence a decree should be passed against defendant no. 1 for vacation of premises in dispute. The Trial Court found that Sri Shiv Nath Yadav (now deceased and represented through his legal heirs) was not a sub-tenant but himself was a tenant of accommodation in question and since no notice of demand was ever issued to him, there was no question of default in payment of rent on his part. The Revisional Court, however, has taken an otherwise view. 5. It is no doubt true that Revisional Court in the impugned judgment dated 11.01.2005 has held that petitioners are the tenants of accommodation in question and since their tenancy has been determined by notice 6-C and they have defaulted in payment of rent, therefore, they are liable for eviction. The above findings about notice is clearly perverse. 5. It is no doubt true that Revisional Court in the impugned judgment dated 11.01.2005 has held that petitioners are the tenants of accommodation in question and since their tenancy has been determined by notice 6-C and they have defaulted in payment of rent, therefore, they are liable for eviction. The above findings about notice is clearly perverse. A copy of notice 6-C has been filed as Annexure-2 to the writ petition. A perusal thereof clearly shows that demand was made from Sri Jhimal Gaur alleging that accommodation was in his tenancy but he illegally sub-let the same to Sri Shiv Nath Yadav and, therefore, Sri Jhimal Gaur was required to pay the alleged defaulted rent and get the premises vacated from petitioners and thereafter handover its vacant possession to respondent. A perusal of entire notice dated 29.05.1980 clearly shows that there was no demand of rent from Sri Shiv Nath Yadav. The Revisional Court, therefore, has completely misread notice, i.e., paper No. 6-C. This fact when confronted to the landlord's counsel, he also could not dispute it. 6. Sri A.K. Tiwari, learned counsel for the respondent however submitted that notice under Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882") is not necessary for maintaining a suit for eviction. This submission is clearly misconceived. In the present case it is not the question of notice under Section 106 of Act, 1882 but what has been actually alleged and contended by learned counsel for the petitioners is that no notice of demand was ever served to petitioners or their father at any point of time and, therefore, question of committing any default in payment of rent on their part had never arisen and, therefore, no suit under Section 20(2)(a) of Act, 1972 was maintainable. 7. Section 20(2)(a) of Act, 1972 reads as under: "20. 7. Section 20(2)(a) of Act, 1972 reads as under: "20. (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand: Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the Prescribed Authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year"." (emphasis added) 8. It clearly provides that a suit for eviction of a tenant may be instituted if the tenant is in arrears of rent for not less than four months and has failed to pay the same within one month from the date of service upon him of notice of demand. Therefore, unless notice of demand is given to a tenant, who is allegedly in arrears of rent for not less than four months and no payment is made within one month from the date of notice, no suit under Section 20(2)(a) will lie. In the present case no notice of such demand was ever issued to petitioners or their father and, hence the suit under Section 20(2)(a) of Act, 1972 was not maintainable. The Revisional Court has completely misread the document 6-C and, therefore, the impugned revisional judgment cannot be sustained. 9. Sri Tiwari, learned counsel for the respondent placed reliance on the judgments of Apex Court as well as this Court in J.C. Chatterjee and others Vs. Shri Sri Kishan Tandon and another, AIR 1972 SC 2526 ; Mundri Lal Vs. Smt. Sushila Rani and another, 2007(3) ARC 501; Mohammd Haroon and other Vs. Central Bank of India and others, AIR 1994 MP 24 ; Gulab Chand Verma Vs. Badri Narain Mishra, 2004(2) ARC 462 ; and, Shanker Lal Vs. Shri Sri Kishan Tandon and another, AIR 1972 SC 2526 ; Mundri Lal Vs. Smt. Sushila Rani and another, 2007(3) ARC 501; Mohammd Haroon and other Vs. Central Bank of India and others, AIR 1994 MP 24 ; Gulab Chand Verma Vs. Badri Narain Mishra, 2004(2) ARC 462 ; and, Shanker Lal Vs. Jawahar Lal and others; 2005(1) ARC 387 but I could not find therefrom as to how and in what manner any of these authorities help him to defend the impugned revisional order. 10. In view of above, the writ petition is allowed. The impugned revisional judgment and order dated 11.01.2005 is hereby set aside. The judgement and order dated 29.09.1997 passed by Trial Court is hereby restored and confirmed. The petitioners shall also be entitled to costs, which I quantify to Rs. 20,000/-. _____________