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Uttarakhand High Court · body

2013 DIGILAW 704 (UTT)

RAVINDRA ANAND v. DHARAM VEER MEHTA

2013-10-31

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. Tenant has preferred present revision under Section 25 of the Provincial Small Cause Courts Act, 1887, assailing the judgment and decree dated 09.09.2013 passed by the Judge Small Cause Courts / 3rd Additional District Judge, Dehradun, whereby S.C.C. Suit No. 21 of 2004 filed by the landlord respondent herein was decreed directing the tenant revisionist herein to vacate and hand over actual physical possession to the landlord respondent herein within 30 days and to pay mesne profit @ Rs.3,500/- p.m. from 01.03.2004 till possession is handed over to the landlord. 2. Brief facts of the present case, inter alia, are that landlord respondent herein filed S.C.C. Suit No. 21 of 2004 in the Court of Judge Small Cause Courts Dehradun, inter alia, contending therein that defendant is a tenant in the disputed premises @ Rs.3,500/- p.m.; defendant has deposited rent @ Rs. 3,500/- in the Bank account of the plaintiff till February, 2004 and, thereafter, neither deposited the rent nor paid rent; since rate of rent of the disputed property is Rs.3,500/-, therefore, provision of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘Act No. 13 of 1972’) are not applicable; defendant vide notice dated 28.06.2004 was asked to pay arrears of rent; was informed that tenancy would stand terminated on the expiry of thirty days after service of notice and was further asked to hand over vacant physical possession of the property in dispute to the plaintiff on expiry of 30 days from the date of receipt of notice. 3. Defendant revisionist herein filed his written statement, inter alia, stating therein that rate of rent of building was agreed Rs.1,900/- p.m. and it was also agreed that Rs.1,600/- p.m. would be paid for amenities and furniture, over and above, the monthly rent. Therefore, Rs.1,600/- over and above Rs.1,900/- p.m. cannot be said to be part of rent. Provisions of U.P. Act No. 13 of 1972 are applicable. Notice issued by the plaintiff dated 28.06.2004 is not a valid and legal notice, therefore, tenancy of the defendant does not stand terminated and suit on the basis of illegal notice is not maintainable. 4. Learned Trial Court, having place reliance on the judgment of the Apex Court in the case of Karnani Properties Ltd. Vs. Notice issued by the plaintiff dated 28.06.2004 is not a valid and legal notice, therefore, tenancy of the defendant does not stand terminated and suit on the basis of illegal notice is not maintainable. 4. Learned Trial Court, having place reliance on the judgment of the Apex Court in the case of Karnani Properties Ltd. Vs. Miss Augustine and others, reported in AIR 1957 SC 309 has held that term ‘rent’ is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishings, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlords. Learned Trial Court further held that tenant himself has deposited Rs.3,500/- p.m. in the bank account of the plaintiff till February, 2004 and, thereafter, neither paid the rent nor deposited the same. It was further held that provision of Act No. 13 of 1972 are not application in the present case and tenancy of the defendant stood terminated vide notice issued under Section 106 of Transfer of Property Act on 28.06.2004. Having observed so, learned Trial Court was pleased to decree the suit of the plaintiff. Feeling aggrieved, tenant revisionist herein has preferred revision under Section 25 of the Provincial Small Cause Court Act. 5. I have heard Mr. Neeraj Garg, Advocate for the revisionist and Mr. V.K. Kohli, Senior Advocate assisted by Mr. Kishore Rai, Advocate for the landlord respondent. 6. Learned counsel appearing for the tenant revisionist contends that learned Trial Court has placed burden of proof to prove rate of rent on the tenant, hence, has committed illegality. He further argued that since it has been specifically pleaded in the written statement that notice issued by the landlord is illegal, therefore, learned Trial Court ought to have framed issue on the legality of the notice and ought to have recorded findings thereon which was not done. Therefore, impugned judgment does not sustain in the eyes of law. 7. In my humble opinion, in a civil dispute when parties have produced on record their respective evidences and statements, burden of proof loses its importance. Court has to weigh respective evidences and pleadings of the parties to come to the right conclusion. Therefore, impugned judgment does not sustain in the eyes of law. 7. In my humble opinion, in a civil dispute when parties have produced on record their respective evidences and statements, burden of proof loses its importance. Court has to weigh respective evidences and pleadings of the parties to come to the right conclusion. Moreover, in the light of respective pleadings, both the parties knew that rate of rent has to be proved and decided. 8. Case of the landlord plaintiff is that property was let out @ Rs.3,500/- p.m. while case of the defendant is that of course, defendant was paying Rs.3,500/- p.m. but in fact rent of the building is only Rs.1,900/- p.m. and Rs.1,600/- p.m. is being paid by the defendant as a fee towards furniture and other amenities. Therefore, Rs.1,600/- cannot be said to be a part of the rent. 9. Undisputedly, defendant himself was depositing Rs.3,500/- p.m. in the bank account of the landlord. Undisputedly, defendant has agreed to pay Rs.3,500/- p.m. Although as per the defendant, out of Rs.3,500/- p.m., building rent was only Rs.1,900/- p.m. and Rs. 1,600/- was towards the usage charges of amenities provided by the landlord. I have perused the judgment of the Apex Court in the case of Karnani Properties (Supra). 10. In view of the judgment of the Apex Court, term ‘rent’ is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishings, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlords. Therefore, in my firm opinion, rate of rent was Rs.3,500/- p.m. 11. Photocopy of the notice is handed over in the Court and is taken on record. Both the learned counsel for the parties stated before me that this is a true and correct photocopy of the notice issued by the plaintiff and placed on the lower court’s record. It is stated in the notice that rate of rent is Rs.3,500/-, therefore, Act No. 13 of 1972 is not applicable and tenancy of the defendant would stand terminated on the expiry of 30 days from the date of receipt of the notice. It is stated in the notice that rate of rent is Rs.3,500/-, therefore, Act No. 13 of 1972 is not applicable and tenancy of the defendant would stand terminated on the expiry of 30 days from the date of receipt of the notice. Therefore, tenant defendant should hand over peaceful physical possession to the landlord on expiry of 30 days after receipt of notice. I do not find any illegality in the notice. Notice is perfect and legal. 12. As per Section 2 (g) of Act No. 13 of 1972, provision of Act No. 13 of 1972 shall not be applicable to the building whose monthly rent exceeds Rs.2,000/- p.m. Therefore, in the present case, Act No. 13 of 1972 is not applicable. 13. Since tenancy was monthly and at will, therefore, it was rightly determined by issuing notice under Section 106 of Transfer of Property Act. No other point has been raised by Mr. Neeraj Garg, learned counsel for the revisionist. 14. In view of the above discussion, I do not find any merit in the present revision. Therefore, present revision is dismissed with cost throughout.