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2014 DIGILAW 2232 (ALL)

J. B. Srivastava (dead) v. Mohini Devi (Dead)

2014-07-28

SHABIHUL HASNAIN

body2014
JUDGMENT Shabihul Hasnain, J. These two revisions arise out of a judgment and decree dated 13.4.1982 passed by Additional District Judge, Lucknow, whereby S.C.C. Suit No.21 of 1977 originally filed by Jang Bahadur Srivastava, the plaintiff, against the defendant Chandra Lal Verma, for arrears of rent, damages and ejectment from the premises in suit, along with pendentilite and future damages for use and occupation of the premises, was partly decreed only to the payment of arrears of rent along with rent for pendentilite period. 2. The S.C.C. Suit was filed by the revisionists-plaintiffs of C.R No. 61 of 1982 on the ground that he was the owner and land lord of the premises in suit, described in detail in para-1 of the plaint; that the defendant Chandra Lal Verma, since deceased, was a tenant of the accommodation on the first floor described in detail in para 2 of the plaint, with a monthly rent of Rs.225/- plus statutory taxes and he was in arrears of rent with effect from 20.7.76 to 16.4.77 amounting to Rs.2000/- and statutory water tax for April, 1972 to March, 1977 amounting to Rs.248/-; that he was also liable to pay Rs.1075/- as damages for occupation use of first floor flat from 17.4.77 to 19.5.77 at the rate of Rs.25/- per day; that he also illegally occupied two rooms on the top floor and a motor garage on the ground floor with effect from 5.7.76 and was in arrears for the same to the plaintiff amounting to Rs.3566/- at the rate of Rs.370/- per month in respect of which a separate suite was filed by the plaintiff; that a notice terminating the tenancy of the defendant aforesaid was sent to him on 14.3.77 which was served on 17.3.77 and his tenancy was terminated thereby after expiry of twenty days on receipt of the notice; that he had not utilized Rs.1800/- from 1972 to 1978 at the rate of two months' rent per year allowed to be deducted from the rent as per his request in respect of white-wash, repair etc. of the portion under his tenancy, therefore, the plaintiff was entitled to recover that amount also. of the portion under his tenancy, therefore, the plaintiff was entitled to recover that amount also. It has also been averred that since in spite of service of the notice, the defendant had neither paid the arrears of rent and damages claimed nor vacated the premises in suit, the suit for the relief mentioned above has been filed by the plaintiff. 3. The defendant filed his written statement taking several grounds therein including that the entire rent had been paid, nothing was due against him; that the notice was invalid; the entire premises in suit were in his tenancy; no illegal possession over any other portion much less on top floor and the garage was taken by him forcibly; the rent included the water taxes separately, that no rent was due against him, much less for the period in suit, and he had committed no default as they were already in deposit under section 30 of the U.P. Act XIII of 1972 and sent to the plaintiff through money order, thus, the plaintiff was not entitled to any relief. The following issues were framed by the S.C.C. Court: - 1.Whether the defendant was tenant of the portion only as shown in para 2 of the plaint? 2.Whether the defendant is the tenant of the entire premises as alleged in W.S.? If so its effect ? 3.Whether the defendant is liable to pay water tax separately as claimed or water tax was included in the rent as pleaded in the W.S. ? 4.Whether the plaintiff is entitled to recover Rs.1800/- which was allowed for repairs ? 5.Whether the notice is in suit was not legal ? 6.Whether the defendant was in arrears of rent ? If so of what amount or whether he is defaulter. 7.To what amount or to what relief is the plaintiff entitled? 4. As mentioned above, S.C.C. Suit filed by the plaintiff-revisionist of Civil Revision No.61 of 1982, for arrears of rent, damages and ejectment from the premises in suit, along with pendentilite and future damages for use and occupation of the premises, was partly decreed only to the payment of arrears of rent along with the rent for pendentilite period. 4. As mentioned above, S.C.C. Suit filed by the plaintiff-revisionist of Civil Revision No.61 of 1982, for arrears of rent, damages and ejectment from the premises in suit, along with pendentilite and future damages for use and occupation of the premises, was partly decreed only to the payment of arrears of rent along with the rent for pendentilite period. Hence, aggrieved by the said judgment and order, plaintiff-revisionist filed C.R. No.61 of 1982, on the ground that the deposit of rent under Section 30 of the Act by the defendant was not valid as the rent; the money order sent to the revisionist by him was rightly refused by the revisionist for the fact that the defendant was a tenant of only first floor of accommodation, but he claimed that the rent was for the whole house No.366, which included the accommodation of the revisionist-plaintiff and to that of five other tenants. It has been said that the reason for refusal of the rent has not been considered by the Court below. 5. The defendant of the S.C.C. Suit also came before this Court by filing Civil Revision No.90 of 1982 challenging even partly allowing of the suit for payment of arrears of rent, while striking of his defence; on the ground that the court below has erred in taking 9.8.1977 to be the first date of hearing and ignoring to consider that 10.11.1978 was the first date of hearing in the suit for the defendant-revisionist of this revision, who filed their written statement and has been depositing the entire rent due w.e.f. 6.11.1978 in advance and thus his written statement dated 10.11.1978 cannot be struck off, on the ground of lapse, if any, in the suit. 6. I have heard the learned counsel for rival parties in both the civil revisions. 7. In both the civil revisions, this Court has to examine whether there has been error apparent on record, while partly allowing the suit filed by the plaintiff, while striking of defence of the defendant. 8. Learned counsel for the first revisionist no. 6. I have heard the learned counsel for rival parties in both the civil revisions. 7. In both the civil revisions, this Court has to examine whether there has been error apparent on record, while partly allowing the suit filed by the plaintiff, while striking of defence of the defendant. 8. Learned counsel for the first revisionist no. 61 of 1982 contends that as the tenant in this case has sent the rent to the landlord mentioning in the coupon of the money order, that the rent was for the whole accommodation no.366, which included the accommodation of the revisionist as well and of five other tenants and, not that of the accommodation under tenancy of the opposite parties, therefore, on one hand the money order has rightly been refused and consequential deposit of rent under Section 30 of the Act was not valid. The deposit of rent was rightly ordered on 26.2.1977 to be deposited at the own risk of the defendant. It has been further submitted that the notice terminating the tenancy of the defendant on the ground that there were arrears of rent from 20.7.1976 to 16.4.1977, was served on the defendant- tenants on 17.3.1977. It was a valid notice. After receiving the notice regarding eviction petition, the deposit of rent U/s 30 of the Act was illegal. The revisionist- plaintiff filed eviction petition on 31.5.1977, in which tenants filed objection on 10.11.1978. It has been averred that during pendency of the suit, there was default on the part of the defendant to deposit the rent. Consequently, defence of the defendants was struck off under Order 15 Rule 15 C.P.C. It has been submitted that intentionally and knowingly the defendant has not substituted the legal heirs of the original landlord and continue to deposit the rent in the name of dead person, therefore, in this view of the matter, the deposit of rent was not a valid deposit. In the absence of any contract, the tenant was liable to pay water tax over and above the rent, which was not been paid and in a case where arrears of water tax if exceed amount of four months rent, the tenant will become defaulter and liable to be evicted. It has lastly been urged that the landlord is liable to be evicted. It has lastly been urged that the landlord is liable to be evicted. It has lastly been urged that the landlord is paying all taxes regarding the whole property and the tenant has not paid statutory taxes to the landlord since April, 1972 till date, which falls Rs.49.80 per years. 9. I have gone through the judgment and order passed by the S.C.C. Court. 10. In this regard contention of the revisionist that the rent has rightly not been accepted through money order; for the reason of fact that the defendant had sent the rent to the plaintiff, claiming to be the tenant in respect of whole of the house and not in respect of only the premises of which they were the tenant, has force, when admittedly, the tenancy in this case was oral and; in view of the un-controverted testimony of the plaintiff, the Court below found that it has been established that the defendants were the tenant of the portion as shown by the plaintiff in the plaint and it is absolutely wrong that they were the tenants of the entire premises. Further, the notice sent by the revisionist was a valid notice for the reason of this fact and to that of also that the deposit under Section 30 of the U.P. Act 13 of 1972 made by the defendant would not entitle the defendants benefit thereof, after receiving of notice of the S.C.C. Suit because they continue to deposit the rent under Section 30 of the Act and on the basis of which the defence of the defendant was struck off. 11. The reasons, which prompted the Court below to partly allow the suit, that notice sent by the plaintiff to be invalid was not according to law, as the plaintiff could not have refused to accept the rent even if it was in respect of the whole of the house are not convincing to this Court. Further, the finding of the S.C.C. Court that the notice sent by the plaintiff to the defendant, was not a valid notice is also not acceptable. Further, the finding of the S.C.C. Court that the notice sent by the plaintiff to the defendant, was not a valid notice is also not acceptable. After recording the aforesaid findings, the court below further mislead itself in not declaring the defendant defaulter towards payment of the rent, while mentioning that since the notice in question was not valid nor according to law as only one month's rent was due against the defendant, the question of defendants being defaulter does not arise as the rent for the remaining period were already deposited by the defendant under Section 30 of the Act under the direction of the court. Attention has also not been paid towards the settled position of law that the amount of rent so deposited under Section 30 of the Act, was at the own risk of the depositors. The finding of the S.C.C. Court, on the question of arrears of rent, that since the rent for the entire period in suit were not paid to the plaintiff but were deposited under Section 30 of the Act, although for the period of one month only and some rents were deposited by the defendant even during the pendency of the suit, therefore, the plaintiff was entitled only to recover the arrears of rent, this Court is of the considered opinion that these findings is not tenable in view of the catena of decisions of this Court, beginning from the reference to the question made to the larger bench; namely "whether deposit made under Section 30(1), after date of service of summons of a civil suit, for arrears of rent, can be taken into consideration for computing deposit for purposes of deciding question whether defence should or should not be struck off, under Order XV Rule 5 C.P.C. 1908," where in Haider Abbas Vs. Additional District Judge and others, reported in 2006(1) ADJ 197 Alld. Additional District Judge and others, reported in 2006(1) ADJ 197 Alld. (D.B.), the Division Bench answered as under: - "We, therefore, upon an analysis of the provisions of Rule 5(1) of Order XV CPC, hold that while depositing the amount at or before the first hearing of the suit, the tenant can deduct the amount deposited under Section 30 of the Act, but the deposit of the monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under Section 30 of the act cannot be deducted." 12. Thereafter, came Noor Mohammad and others Vs. 14th Addl. District Judge, Kanpur Nagar, 2006(24) LCD 1516, where this Court relying upon the decision in Haider Abbas Vs. Additional District Judge and others (supra) held: - "Tenants deposited the rent in Munsif's Court under Section 30 of the Act, up till 31.8.1988 (suit giving rise to the instant writ petition decided on 29.5.1989). Deposit under Section 30 of the Act after receiving notice dated 18/20.4.1983 was illegal. After receiving notice tenant is not entitled to continue to deposit the rent under Section 30 of the act. Further as held by a Division Bench in Haider Abbas vs. A. D. J. 2006 Alld. Daily Judgments 197, deposit of rent after receiving summons of suit for eviction is also illegal." 13. In the present case, it is also important to note that during pendency of S.C.C. suit the tenant was bound to pay the regular rent and damages for use and occupation as provided under Order V Rule 15 of the C.P.C. but the tenants did not pay a single penny, therefore, their defence was struck off vide order dated 1.4.1981, consequently, the defendants written statement was not read. In this view of the matter, it can only be said that the defendant was defaulter in payment of rent, the notice terminating his tenancy was a valid notice and consequently, the deposit under Section 30 of the Act after receiving notice of the suit, was illegal because after receiving notice, tenant is not entitled to continue to deposit the rent under Section 30 of the Act. Therefore, the defendants in this case are liable to ejectment as the deposit made by them under Section 30 of the Act, cannot be taken to be a valid deposit, because after knowledge of pendecny of suit for ejectment, tenant cannot continue to deposit the rent under Section 30 of the Act. 14. Furthermore, the defendants in the suit for ejectment, have not come with clean hand either before the Court below or before this Court. With a view to drawing incessant and multiple proceedings, they are making every efforts to create hurdle in the disposal of the matter. Initially, the defendant has sent Money Order indicating that the rent was for the whole house No.366, which included the accommodation of the revisionist and five other tenants, for reason thereof, rent was not accepted by the plaintiff. Thereafter, the defendant adopted another steps for depositing the rent under Section 30 of the Act and continued to deposit the rent even after notice was served on them although in incorrect proceedings. The tenders submitted by the defendants show that on 13.2.2008 and 13.2.2007, the amount was deposited in R. S. No.21/27 and 21/72 instead of actual S.C.C. Suit No.21 of 1977, without service of any notice of the deposit on the landlord as provided under Section 30(4) of the Act No.13 of 1972. 15. In this regard, it has been argued by the revisionist-plaintiff that being aggrieved, application was moved by him before the District Judge, Lucknow to provide the details of the deposit of the rent, which was registered as misc. case No.10-C of 2012 and as argued by him, nothing has been communicated by the office of District Judge. He further says that the tenders annexed by the defendants are provisional copies and the original thereof, have not been annexed at all. He said that he has not been able to find any deposit for the last two years. 16. Taking cognizance of these facts, this Court in exercise of inherent powers under Article 227 of the Constitution, directed Sri Manish Kumar, who represents the High Court, to get information from S.C.C. Court (Room No.4), whether any deposit is being made as mentioned in the supplementary affidavit filed before this Court and submit a report after his inquiry from the Court by the next date. The instruction received by him from the District Judge, has been brought on record, which shows that the tenders submitted by the defendants show that on 13.2. 2008 and 13.2.2007, the amount was deposited in Regular Suit No. 21/27 and 21/27 instead of real S.C.C. Suit No.21 of 1977, in which subject matter of dispute was involved. This further goes to show as to how much dilatory and unfair tactical course have been adopted by the defendant with a view to give rise to the incessant proceedings and prolong delay of thirty five years as in the present case. 17. This is not the end of such sort of attitude of the defendants for delaying the controversy to be set at naught. The history of the case reveals that from beginning up to this Court; in regular suit before the Court below as well as in revisions before this Court, efforts have been made to hamper/delay the disposal of the case. Firstly the second appeal arisen out of the disputed factual position as said above, has wrongly been got tagged with these revisions. This Court finds that on account of it being connected, severally attempts for listing and hearing of the present civil revisions have been made. They became futile exercise because of non availability of the complete record. One or the other connected file was not available when the case was taken up and had to be adjourned. 18. In view of the aforesaid discussions, this Court arrives to the conclusion that the civil revision No. 61 of 1982 deserves to be allowed decreeing the suit of the revisionists-plaintiff for recovery of arrears of rent, damaged and ejectment against the defendants. 19. So far filing of C.R. No. 90 of 1982 is concerned, the defendant has once again challenged the striking of his defence by the trial Court. 20. Under the facts and circumstances of the case, the trial court passed the order dated 1.4.1981 striking of the defence of the defendant. Against this order, the defendants- tenants filed a revision before this Court, which was dismissed as withdrawn on 20.8.1981 but not with an order likely to be filed a fresh. Now the defendants filed this second revision assailing the said order, in the garb of assailing the judgment dated 13.4.1982. Against this order, the defendants- tenants filed a revision before this Court, which was dismissed as withdrawn on 20.8.1981 but not with an order likely to be filed a fresh. Now the defendants filed this second revision assailing the said order, in the garb of assailing the judgment dated 13.4.1982. The order dated 1.4.1981, by which the defence was struck of, was confirmed by this Court vide order dated 20.8.1981 being 'dismissed as withdrawn'. This Court did not permit the defendants for agitating the matter a fresh. So the defendants- tenants are barred to re-agitate it by filing revision no. 90 of 1982,which is misconceived and abuse of process of law. 21. Thus Civil Revision No. 90 of 1982 has no force and is liable to be dismissed. 22. There is also a second appeal bearing no. 330 of 1993 filed by the defendants- tenants, pending before this Court. The said appeal has wrongly been tagged with these civil revisions. 23. It so happened that the landlord filed a suit for recovery of possession of two rooms on the top floor and garage, which was illegally enroached upon by the defendants-tenants, besides the premises under tenancy, and this second appeal has arisen out of that regular suit. At this stage it is relevant to mention again the finding given by the S.C.C. Court on issue no. 1 and 2; whether the defendants were tenant of the accommodation as said by the plaintiff or tenant of the entire premises as alleged in the written statement. In this matter, the defence of the defendant was struck off, therefore, no evidence oral or documentary on his behalf was tenable. Admittedly, the tenancy in this case was oral and in view of the un-controverted testimony of the plaintiff, the Court below found that it has been established that the defendants were the tenant of the portion as shown by the plaintiff in the plaint and it is absolutely wrong that they were the tenants of the entire premises. 24. In these view of the matter, pendency of second appeal has no concern with the disposal of present civil revisions. It appears that this appeal has been got connected with these two civil revision, with a view to delay the disposal thereof. 24. In these view of the matter, pendency of second appeal has no concern with the disposal of present civil revisions. It appears that this appeal has been got connected with these two civil revision, with a view to delay the disposal thereof. The dirty tricks of trade which have been used to delay the disposal of these revisions, have already been mentioned in the preceding paragraphs. 25. In view of what has been discussed above, The Civil Revision No. 61 of 1982 is allowed. The regular suit no. 21 of 1977 filed filed by the plaintiffs for recovery of arrears of rent, damages and ejectment, is decreed with cost. The defendants shall hand over the peaceful possession of the premises in question to the plaintiff within one month. 26. The Civil Revision No. 90 of 1982 is rejected. 27. The Second Appeal No.330 of 1993 is de-linked and may be listed separately.