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2014 DIGILAW 2247 (ALL)

Jugal Kishore v. Ramesh Kumar

2014-07-30

PANKAJ MITHAL

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JUDGMENT Pankaj Mithal,J. Heard Smt. Rama Goel Bansal and Sri A.N. Bhargawa, learned counsel for the parties in both the writ petitions. 2. The above two writ petitions are directed against the judgment and order of the SCC dated 15.11.2006 and of the revisional court dated 16.9.2008 by which the suit of the landlord for arrears of rent and eviction against the tenant has been decreed. 3. A composite notice of demand of rent and termination of tenancy was given on 10.10.2003 demanding rent w.e.f. 1st March 2001 till August 2003 @ Rs. 360/- per month plus house and water tax. On its basis the above suit was instituted. The court of first instance decreed the suit holding that the tenant is in arrears w.e.f. 1.1.2002 to 17.10.2003 @ Rs. 360/- per month plus house and water tax. In revision preferred by the tenant under Section 25 of the Provincial Small Causes Court Act, 1887 the court affirmed the aforesaid decree and the finding regarding default in payment of rent for the above period but held that the rate of rent of Rs. 360/- per month includes water and house tax. 4. Out of the above two writ petitions one has been preferred by the landlord assailing the finding including water tax and house tax in rent of Rs. 360/- per month and another has been filed by the tenant against the decree of eviction passed against him. 5. The submission of Smt. Rama Goel Bansal, learned counsel for the tenant is that there was no intention on part of the tenant to commit any default in payment of rent and that he had deposited the entire arrears under Order 15 Rule 5 of U.P. Act No. 13 of 1972. The courts below have not taken into consideration the deposits so made by him. 6. The court of first instance on the basis of the pleadings of the parties had formulated three points namely; with regard to relationship of landlord and tenant between the parties; whether the rate of rent includes house and water tax; and whether tenant had defaulted in payment of rent and is liable to eviction. 7. Issue no 3 is regarding default in payment of rent. 8. The courts below have concurrently recorded that the tenant had paid rent only upto 31st December 2001 and therefore rent w.e.f. 1.1.2002 till 17.10.2003 was due and payable. 7. Issue no 3 is regarding default in payment of rent. 8. The courts below have concurrently recorded that the tenant had paid rent only upto 31st December 2001 and therefore rent w.e.f. 1.1.2002 till 17.10.2003 was due and payable. This was also admitted by the tenant. No evidence was adduced to prove that any rent for the period 1.1.2002 to 17.10.2003 was paid and deposited by the tenant. 9. In view of the above, the tenant was held to be a clear defaulter in payment of rent. 10. The submission that the deposits made by the tenant under Order 15 Rule 5 of the Act ought to have been taken into consideration, is misconceived, in as much as, the deposits under Order 15 Rule 5 of the Act are for the purposes to avoid striking of the defence. However, there is no dispute in case any deposit is made therein, it is liable to be considered for extending the benefit under Section 20 (4) of the Act but no such benefit was claimed by the tenant in the courts below. This is evident from the fact that no issue or the point for determination on that aspect was formulated by the courts below. 11. Section 20 (4) of the Act is directory in nature and it provides that the tenant can avoid the decree of eviction if at the first hearing of the suit he unconditionally tenders the landlord entire amount of rent and damages for the use and occupation of the building together with interest @ 9% per annum and landlords cost of the suit. 12. In view of the fact that the provision of Section 20(4) of the Act is directory in nature and not mandatory and that the tenant has failed to claim its benefit, the courts below were not enjoined upon to consider the same. Thus, no error or illegality has been committed in decreeing the suit by the courts below and in directing for the eviction of the tenant on the ground of default. 13. Sri Bhargawa has argued that the water and house tax were in addition to the agreed rent of Rs. 360/- per month. However, no material has been placed which can show that the house and water tax was in addition to Rs. 360/- per month and finding of the revisional court in this regard is illegal and perverse. 14. 13. Sri Bhargawa has argued that the water and house tax were in addition to the agreed rent of Rs. 360/- per month. However, no material has been placed which can show that the house and water tax was in addition to Rs. 360/- per month and finding of the revisional court in this regard is illegal and perverse. 14. Thus, in view of the above in case the revisional court has included the house and water tax in rent of Rs. 360/- per month, no illegality can be said to have been committed. 15. No other point was argued by either of the parties. 16. The writ petitions as such have no merits and both of them are dismissed.