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Allahabad High Court · body

2014 DIGILAW 3029 (ALL)

Sheo Prasad Gupta v. Radhey Lal Goswami

2014-09-25

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. 1. Petitioners are tenants in a portion consisting four rooms, one Duchhatti, kitchen, Chhajja (Balcony) and a latrine situate on the second floor of premises No. 31/32, Beldari Mohal (Ghumani Mohal), Kanpur Nagar. The respondent as a Sarvrakar of Sri Thakur Gopal Ji Maharaj Virajman Mandir after determination of tenancy vide notice dated 15.4.1996 instituted Small Causes Court Suit No. 225 of 1996 for eviction of the petitioners from the said portion on the ground that they have materially altered the tenanted portion and that they have defaulted in payment of rent for the period 1.11.1995 to 31.3.1996. The parties contested the suit on the premise that the U.P. Act No. 13 of 1972 is applicable and the suit is one under section 20(2)(a) and (c) of the Act. 2. The petitioners denied that they have carried out any material alteration in the disputed portion and at the same time contended that the rent for the period 1.11.1995 to 31.3.1996 amounting to  Rs. 711/- on receiving the notice of demand was duly remitted by a money order to the respondent and, as such, there is no default in payment of rent which may occasion institution of a suit on the said ground. The petitioners have deposited the entire amount of rent and damages together with interest on or before the first date of hearing of the suit and, therefore, are not liable for eviction on the ground of default. 3. The Court of first instance decreed the suit vide judgment and order dated 18.8.2010 holding petitioners to be defaulter in payment of rent for a period of more than four months and that they have materially altered the disputed portion by covering the Chhajja (Balcony) without the permission of the respondent. Since the petitioners have already acquired a house in Juhi Kala within the municipal limits of Kanpur Nagar, the defence under section 20(4) of the Act to avoid the decree for eviction is not available to the petitioners. 4. The judgment and order of the Trial Court has been affirmed vide judgment and order dated 27.4.2011 passed by the Revisional Court. 5. The petitioners have impugned both the above judgments and orders by means of this writ petition. 6. 4. The judgment and order of the Trial Court has been affirmed vide judgment and order dated 27.4.2011 passed by the Revisional Court. 5. The petitioners have impugned both the above judgments and orders by means of this writ petition. 6. I have heard Sri M.D. Singh "Shekhar", Senior Advocate assisted by Anil Kumar Srivastava, learned Counsel for the petitioners and Sri Anant Vijay, learned Counsel for the respondent. 7. Sri Shekhar has very fairly accepted that the petitioners have acquired a house of their own within the city and, therefore, as per the proviso to sub-section (4) of section 20 of the Act they cannot avoid the decree of eviction, if passed, on the ground of default in payment of rent even though they may have deposited the entire amount of rent and damages together with interest on or before the first date of hearing of the suit. 8. Only two arguments have been advanced by Sri Shekhar. First, the covering of Chhajja (Balcony) by temporary structure does not amount to material alteration diminishing the value and utility of the building or disfiguring it. Secondly, petitioners have not failed to pay the rent demanded within a month of service of notice and, therefore, there was no default and the suit on the ground of default was not maintainable. 9. Sri Anant Vijay has countered the submission of Sri Shekhar by submitting that the construction of a kitchen in the balcony of the house has not only disfigured the building but has reduced its value and utility and, as such, amounts to material alternation. The petitioners were issued a composite notice of demand and determination of tenancy on 15.4.1996. A month's time was allowed for making the payment of the arrears of rent which were of five months. No payment within one month of service of the notice was made and the respondent had not refused to accept any rent during the above period. He further contended that there are no pleadings in the written statement filed by the petitioners that they have ever tendered or paid the rent as demanded by the above notice within a month of its receipt. 10. Section 20(2) of the Act provides for various ground on which a suit for eviction of tenant from a building can be instituted. 10. Section 20(2) of the Act provides for various ground on which a suit for eviction of tenant from a building can be instituted. It inter alia provides for the eviction of a tenant on the ground of default in payment of rent of not less than four months and for making construction or structural alteration without the permission in writing of the landlord which may diminish the value or utility or may disfigure the building. 11. In view of the provisions of section 20(2) of the Act even if one of the grounds provided therein for eviction of tenant is proved, the tenant would be liable for eviction unless prevented by any law. 12. Section 20(2)(a) of the Act reads as under: "20............... (1).............. (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." 13. In the instant case, there is no dispute that the tenancy of the petitioners was validly determined vide notice dated 15.4.1996 which was received by the petitioners on 18.4.1996. The petitioners were in arrears of rent from 1.11.1995 to 31.3.1996 i.e., five month. The notice of demand having been received by the petitioners on 18.4.1996, they were supposed to pay the rent demanded by 18.5.1996 and in case it is no so paid there would be a default entitling the respondent for a decree of eviction of the petitioners. 14. In short, the crucial question which requires consideration is whether the petitioners have paid and tendered rent to the respondent pursuant to the notice of demand within one month of its receipt i.e., between 18.4.1996 to 18.5.1996. 15. Sri M.D. Singh "Shekhar", learned Counsel for the petitioners has argued that on receipt of notice dated 15.4.1996 on 18.4.1996, the petitioners have sent the entire rent amounting to  Rs. 711/- for the above period 1.11.1995 to 31.3.1996 by money order to the respondent on 1.5.1996. The respondent refused to accept the money order on 22.5.1996. 15. Sri M.D. Singh "Shekhar", learned Counsel for the petitioners has argued that on receipt of notice dated 15.4.1996 on 18.4.1996, the petitioners have sent the entire rent amounting to  Rs. 711/- for the above period 1.11.1995 to 31.3.1996 by money order to the respondent on 1.5.1996. The respondent refused to accept the money order on 22.5.1996. In view of the above, as the rent demanded was sent within 30 days of receipt of notice though not accepted, there is no default on part of the petitioners in payment of rent within the meaning of section 20(2)(a) of the Act. 16. There is no dispute to the finding that the money order was refused by the respondent with the endorsement made on 22.5.1996. The said endorsement of refusal is after the expiry of the period of one month from the date of service of the notice of demand and is, therefore, not material. There is nothing on record to indicate or establish that the rent was tendered/paid or refused within one month of receipt of notice of demand. 17. In this regard the pleadings of the parties are very material and relevant. The respondent in paragraphs 10 and 12 of the plaint has clearly stated that a composite notice of demand and determination of tenancy was given to the petitioners on 15.4.1996 by registered post/A.D. and that the said notice was received by the petitioner on 18.4.1996. The petitioners despite receiving the notice till the institution of the suit i.e., 20.5.1996 had not paid any rent as demanded. In reply to the above paragraphs, petitioners in paragraph 6 of the written statement only stated that it is incorrect that the rent for the period 1.11.1995 to 31.3.1996 was not paid inspite of demand. They have deposited the entire arrears of rent w.e.f. 1.11.1995 together with interest and the cost of the suit in Court for the purposes of benefit under section 20(4) of the Act. The petitioners have not averred that the rent was sent by money order or that it was sent on 1.5.1996 and was refused by the respondent. In paragraph 16 of the written statement, however, it was stated that the rent of  Rs. 711/- for the period 1.11.1995 to 30.4.1996 i.e., for six months was sent by money order but again petitioners failed to mention the date on which money order was sent. 18. In paragraph 16 of the written statement, however, it was stated that the rent of  Rs. 711/- for the period 1.11.1995 to 30.4.1996 i.e., for six months was sent by money order but again petitioners failed to mention the date on which money order was sent. 18. In view of the above pleadings, it was not the case of the petitioners that they had sent the money order of the rent demanded within one month of receipt of the notice. 19. In the absence of specific pleading to the above effect, the petitioners cannot be permitted to contend that the rent was paid or remitted by them within the time stipulated in the notice and to adduce evidence in that regard. 20. The petitioners have relied upon a receipt of money order of  Rs. 711/- as rent sent to the respondent. There is no date mentioned on the said receipt except for a stamp of the Post Office which bears the date 1.5.1996. On its basis it is urged that the money order was sent within a month of receipt of notice of demand. The said receipt is part of evidence. The evidence cannot go beyond the pleadings. A fact which has not been pleaded cannot be proved by evidence. No witness stated that the money order was sent on 1.5.1996. Therefore, the said receipt though not even a conclusive proof of the fact that the money order was sent on 1.5.1996 is not admissible in evidence. 21. Learned Counsel for the petitioners has relied upon a decision of this Court in the case of Badri Prasad v. District Judge, Gonda and others 1982 ARC 395. In the said case, tenancy was determined and a suit was instituted for eviction of the tenant under section 20(2)(a) of the Act. The tenant had sent the arrears of rent through money order within the time specified in the notice but the money order was returned unserved. The Court held that it cannot be said that the tenant "failed to pay" rent within the meaning of section 20(2)(a) of the Act. 22. The aforesaid decision on principle do support the case of the petitioners but will have no application in the absence of any pleading that the money order was sent within the time specified in the notice. 23. 22. The aforesaid decision on principle do support the case of the petitioners but will have no application in the absence of any pleading that the money order was sent within the time specified in the notice. 23. The money order admittedly reached the respondents after the expiry of One month from the date of receipt of notice of demand and was refused thereafter. Therefore, such a refusal beyond the time prescribed is not material and sufficient to hold the respondent guilty of not accepting the rent and to absolve the petitioners from the liability to pay rent demanded. 24. In view of the aforesaid facts and circumstances, I am of the opinion that the Courts below have not erred in law in holding that the petitioners "failed to pay" rent to the landlord within one month from the date of service upon them the notice of demand which is sufficient to attract liability of their eviction from the tenanted premises. 25. Accordingly, as the petitioners are not entitled to avoid the decree of eviction on the ground of default in payment of rent under section 20(4) of the Act as they had already acquired another house in vacant state in the city itself, they cannot escape from the liability of eviction. There is no flaw in decreeing the suit under section 20(2)(a) of the Act on the ground of default. 26. In view of the above as the decree of eviction is sustainable on the ground of default in payment of rent, there is no necessity for this Court to embark upon the other ground of eviction of the petitioners i.e., material alteration. The writ petition has no merit and is dismissed.