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2014 DIGILAW 262 (ALL)

Lal Bahadur v. Addl. Distt. Judge Lucknow

2014-01-21

SIBGHAT ULLAH KHAN

body2014
JUDGMENT Sibghat Ullah Khan,J.: - List revised. No one appears for the contesting respondents. Heard Shri U.S. Sahai learned counsel for the tenant petitioner. 2. Due to fire in rent control section some files were burnt. As computer was showing this case to be pending hence duplicate skeleton file was constituted and the case was listed on 11.09.2013. On the said date the case was adjourned to 25.09.2013 and learned counsel for the petitioner was directed to supply duplicate copies of the writ petition, counter affidavit and rejoinder affidavit etc. Learned counsel for the petitioner supplied the requisite duplicate copies on 11.09.2013 which are treated to be original. 3. On 11.09.2013 learned counsel for the petitioner had further stated that sole petitioner had died. However in respect of sole petitioner application had already been filed in 1997.The same is included in the duplicate copies supplied by the learned counsel for the petitioner. Through the said application substitution of Sanjay Srivastava and Ajay Srivastava sons of deceased petitioner and of Smt. Sarla Srivastava widow of deceased petitioner was sought. It is assumed that the said application was allowed. 4. On 31.10.2013 substitution application to bring on record legal representatives of opposite party nos. 2,3, and 4 was filed, notices were issued, however no one appeared on behalf of the legal representatives of opposite party numbers 2,3, and 4. Accordingly the said substitution application is allowed after condoning the delay in filing the same. 5. This is tenant's writ petition arising out of S.C.C. Suit No. 848 of 1979 Omkar Nath and others Vs. Lal Bahadur. Opposite parties 2 to 5 were the plaintiffs landlords and petitioner was tenant defendant in the said suit. According to the plaint allegations, defendant was tenant of the accommodation in dispute situate on the first floor at monthly rent of Rs. 50/- since much before; later on it had been purchased by the plaintiffs through registered sale deed dated 10.01.1975 and tenant had not paid rent since then. Before filing the suit notices through registered post was sent on 11.08.1977. 6. In order to take benefit of Section 20 (4) of U.P. Act No. 13 of 1972 petitioner deposited an amount of Rs. 4015/- on 06.11.1980. Before filing the suit notices through registered post was sent on 11.08.1977. 6. In order to take benefit of Section 20 (4) of U.P. Act No. 13 of 1972 petitioner deposited an amount of Rs. 4015/- on 06.11.1980. The J.S.C.C. Lucknow, dismissed the suit on 03.09.1981 holding that defence could not be struck off as tenant/defendant has deposited entire requisite amount on the first date of hearing as well as subsequently and further holding that he was entitled to the benefit of Section 20 (4) of the U.P. Act No. 13 of 1972 Against the said decree landlords opposite parties filed S.C.C. Revision No.463 of 1981 which was allowed by 9th A.D.J. Lucknow on 16.09.1988 and eviction order was passed against the tenant. The said order has been challenged through this writ petition. 7. The revisional court decided the matter against the tenant on the following two grounds: 1- After institution of the suit, summons was issued to the defendant fixing 11.11.1979 which was served on defendant petitioner. The petitioner sought and was granted adjournment to file Written statement four or five times. The last adjournment was granted on 01.10.1980 on which date suit was adjourned to 06.11.1980. On 06.11.1980 the defendant petitioner deposited the amount. The Revisional Court held that 11.11.1979 would be deemed to be first date of hearing and five adjournments taken by the defendant petitioner thereafter would not extend the date of first hearing. The trial court had held that 06.11.1980 was the date of first hearing. Defendant petitioner filed written statement on 06.11.1980 which was taken on record. 8. The revisional court on the basis of Full Bench authority of this court reported in Siya Ram Vs. D.J. 1984 (1) A.R.C. 410, held that 11.11.1979 being the first date mentioned in the summons would be the date of first hearing. 2- Revisional Court held that tenant indicated that he had paid Rs. 900 to the Nagar Nigam as municipal taxes payable by the landlord as he was compelled to do so by municipal corporation hence he had deducted the said amount from the rent due, and after deduction of said amount of Rs. 900 he had deposited Rs. 4015/- on 06.11.1980. The revisional court held that such deduction was not permissible as water tax was payable over and above the rent by the tenant by virtue of Section 7 of the Act. 9. 900 he had deposited Rs. 4015/- on 06.11.1980. The revisional court held that such deduction was not permissible as water tax was payable over and above the rent by the tenant by virtue of Section 7 of the Act. 9. From January 1975 till October 1980 there are 70 months, rent at the rate of Rs. 50/- per month for 70 months comes to Rs. 35,00/- however under Section 20 (4) of the Act amount of cost and interest is also to be deposited. 10. As far as the first point is concerned, after discussing the following five authorities of the Supreme Court I have held in K.K. Gupta Vs. A.D.J. 2004 (2) A.R.C. 659 that in case the written statement is filed with the permission of the court then no date prior to that can be taken as first date of hearing ; 1. Siraj Ahmad Siddiqui Vs. P.N. Kapoor, A.I.R. 1993 S.C. 2525: 1993 (2) ARC 451 . 2. Advaitanand Vs. J.S.C.C., 1995 (3) S.C.C. 407 : 1995 (1) ARC 563 . 3. Sudarshan Devi Vs. Sushila Devi, A.I.R. 1999 S.C. 3688: 1999 (2) ARC. 668. 4. Mam Chand Pal Vs. Shanti Agarwal , A.I.R. 2002 S.C. 955: 2002 (1) ARC 370 . 5. Ashok Kumar Vs. Rishi Ram, AIR 2002 S.C. 2520 : 2002 (2) ARC 160 . 11. In the aforesaid second authority of Advaitanand (1995) the aforesaid Full Bench of Sia Ram (1984) relied upon by the Lower Revisional Court was over ruled. 12. Accordingly the view of the revisional court that it was not 06.11.1980 but 11.11.1979 which was the date of first hearing is against the above authorities of the Supreme Court. 13. As far as second point is concerned, municipal taxes do not mean only water tax it basically mean house tax. Normally water tax at 7% of annual value is levied. Accordingly Rs. 900/- would have been the proportionate water tax at the rent of about Rs. 13,000/-. Accordingly amount of Rs. 900/- could not be only water tax it must have been either house tax or both house tax and water tax. The petitioner was entitled to realize from the landlord the amount of house tax paid by him (tenant) by virtue of section 179 of U.P. Nagar Mahapalika Adhiniyam. Tenant had also asserted that for non payment of municipal taxes by the landlord, the rent had been attached. 14. The petitioner was entitled to realize from the landlord the amount of house tax paid by him (tenant) by virtue of section 179 of U.P. Nagar Mahapalika Adhiniyam. Tenant had also asserted that for non payment of municipal taxes by the landlord, the rent had been attached. 14. Accordingly I find that both the points were wrongly decided by the revisional court against the tenant. 15. Writ petition is therefore allowed, judgment and order passed by the lower revisional court is set aside, judgment and decree passed by the trial court dismissing the suit is restored. 16. Before the start of the arguments on the inquiry from the Court, learned counsel for the petitioners had stated that in case matter was decided in favour of the petitioners, petitioners would be agreeable to pay reasonable rent w.e.f. today. Property in dispute is residential in nature situate in Lucknow, capital of the state. Rate of rent is Rs. 50/- per moth which is virtually as well as actually no rent by todays standard. It is rather ridiculous. Accordingly, it is directed that from February 2014 onwards tenants petitioners shall pay the rent to the landlords at the Rate of Rs. 1000/- per month.