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2014 DIGILAW 3037 (ALL)

Ram Swaroop Nathhimal v. Central Bank of India

2014-09-26

SHASHI KANT GUPTA

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JUDGMENT Hon’ble Shashi Kant Gupta, J.—This revision is directed against the judgment and order dated 19.8.2011 passed by the Additional District Judge, Court No. 7/JSCC, Aligarh in SCC Suit No. 12 of 2007 (Ram Swaroop Natthi Mal H.U.F. v. Central Bank of India) whereby the suit filed by the revisionist for arrears of rent and ejectment has been dismissed. 2. Brief facts of the case are as follows; 3. The suit in question was filed by Ram Swaroop Natthimal, Qasba Harduaganj, District Aligarh H.U.F. through its Karta Shri Rajendra Swaroop Agarwal for arrears of rent and ejectment. The plaintiff-revisionist is admittedly the owner and landlord of the building in dispute which was under the tenancy of respondent bank. Premises in dispute was let out to the Bank in the year 1979 on monthly rent of Rs. Rs. 450/- by a rent deed. Rent Control Case No. 5 of 1994 was filed on behalf of the plaintiff-revisionist under Section 21 (8) of U.P. Act No. 13 of 1972 (in short “the Act”) against the respondent bank for enhancement of the rent. Rent Control and Eviction Officer, Aligarh fixed the rent at the rate of Rs. 2200/- per month by judgment and order dated 26.12.1998 w.e.f. 7.4.1994, however the rate of rent was reduced by the appellate Court in Appeal No. 3 of 1999 to Rs. 2153/- per month with effect from 7.4.1994. After the insertion of Section 2 (1)(g) by U.P. Act No. 5 of 1995 in the Act, the building in dispute stood exempted from the provisions of the Act as the rent of the building was above Rs. 2,000/- per month i.e. Rs. 2153/-. It is notable that the plaintiff-revisionist had filed earlier also one SCC Suit No. 6 of 2003 for the arrears of rent and eviction which was contested by the respondent bank and ultimately the said suit was dismissed on 21.1.2006 by Additional District Judge, Court No. 9, Aligarh. Copy of the judgment dated 21.1.2006 has also been filed alongwith the present revision. In the aforementioned judgment the Court below has recorded a specific finding that as admitted by the parties the provisions of U.P. Act No. 13 of 1972 are not applicable as the rent of the building is above Rs. 2,000/- i.e. Rs. 2153/- per month. Copy of the judgment dated 21.1.2006 has also been filed alongwith the present revision. In the aforementioned judgment the Court below has recorded a specific finding that as admitted by the parties the provisions of U.P. Act No. 13 of 1972 are not applicable as the rent of the building is above Rs. 2,000/- i.e. Rs. 2153/- per month. The plaintiff-revisionist after terminating the tenancy by a notice dated 5.12.2006 of the bank filed a SCC Suit No. 12 of 2007 (Ram Swaroop Natthimal H.U.F. v. Central Bank of India) in the Court of Judge Small Cause Court on 24.4.2007 for arrears of rent and eviction and specifically pleaded that the provisions of the Act are not applicable. The respondent bank contested the aforementioned suit by filing its written statement denying the allegations made in the plaint. On behalf of the revisionist, Rajendra Swaroop Agarwal being its Karta appeared before the Court below as P.W. 1 to prove its case. It is also notable that the copy of the judgment dated 21.1.2006 passed in SCC Suit No. 6 of 2003 (Ram Swaroop Natthimal H.U.F. v. Central Bank) was filed by defendant/respondent itself in the proceedings before the Court below who had summoned the entire original record of SCC Suit No. 3 of 2006 while deciding the present suit. The Court below by judgment and order 19.8.2011 dismissed the SCC Suit No. 12 of 2007. Hence the present revision. 4. Heard Sri Swapnil Kumar, learned counsel for the revisionist, learned counsel for the opposite party and perused the record. 5. Learned counsel for the revisionist has submitted that the Court below has committed manifest error of law while deciding the Issue No. 1 relating to the applicability of U.P. Act No. 13 of 1972 by holding that the provision of the act will be applicable. It is further submitted that the rate of rent of the building in dispute was fixed by the Court at Rs. 2200/- per month with effect from 7.4.1994 on the basis of an order passed on the application filed under Section 21 (8) of U.P. Act No. 13 of 1972 which was later on reduced by the appellate Court by judgment and order dated 18.12.1999 to Rs. 2153/- per month, as such, the Court below has erred in holding that the U.P. Act No. 13 is applicable in the matter. 6. 2153/- per month, as such, the Court below has erred in holding that the U.P. Act No. 13 is applicable in the matter. 6. It is further submitted that Section 2 (1)(g) of U.P. Act No. 13 of 1972 has been inserted by U.P. Act No. 5 of 1995 whereas the rate of rent was enhanced to Rs. 2153/- on 5.12.2006 and the Suit was filed on 24.4.2007 after terminating the tenancy by a notice dated 5.12.2006. It is further submitted that the provisions of the “Act” are not applicable and the finding of the Court below is arbitrary and perverse. 7. It is further submitted that the authorities has mis-applied and mis-interpreted the law laid down by this Court in the case of Hari Om Srivastava v. Ram Laxman Janki, 2011(2) ADJ 744 . 8. It is further submitted that a judgment and order dated 21.1.2006 passed by the Judge Small Causes Court in SCC Case No. 6 of 2003 (Ram Swaroop Natthimal H.U.F. v. Central Bank) clearly shows that the defendant had himself admitted that the provisions of the “Act” are not applicable as the rent of the building was Rs. 2153/- per month. It is further submitted that the aforesaid judgment dated 21.1.2006 was filed by the defendant itself in the Court below in the suit proceedings and the record of the aforementioned case was also summoned by the Court below, therefore the principles of res judicata would apply in the facts and circumstance of this case and the Court below was not justified in holding that the provisions of the Act will be applicable. 9. It is further submitted that the finding of the Court below on the Issue No. 2 that the notice was invalid on the ground that it was not given on behalf of all the legal heirs of the deceased is totally illegal since the notice terminating the tenancy was given by Rajendra Swaroop Agarwal as a Karta of Ram Swaroop Natthi Mal H.U.F., who was the landlord of the premises in dispute. None of the member of said H.U.F. had raised any objections. Therefore, the finding on this point is perverse and illegal. 10. None of the member of said H.U.F. had raised any objections. Therefore, the finding on this point is perverse and illegal. 10. Learned counsel for the Opposite Party has vehemently supported the impugned order and contended that the Court below has rightly came to the conclusion that U.P. Act No. 13 of 1972 will be applicable and the notice issued by the plaintiff-revisionist was illegal and the Opposite Party was fully entitled for the benefit under Section 20 (4) of the Act. It was further submitted that the Court below was fully justified in the dismissing the said case. 11. Heard learned counsel for the parties and perused the record. 12. The landlord and tenant relationship between the parties are not disputed. It is also notable that the rent of the premises in dispute was fixed under Section 21 (8) of the Act at the rate of Rs. 2200/- by the prescribed authority by a judgment and order 26.12.1998 w.e.f. 7.4.1994 which was later on reduced by the appellate Court in Appeal No. 3 of 1999 filed by the Opposite Party-bank to Rs. 2153/- by a judgment and order dated 18.12.1999. It is also notable that the receipt of notice issued by the plaintiff-revisionist terminating the tenancy was admitted by the Opposite Party-Bank and neither in the reply to the said notice nor in the written statement validity of the said notice or locus standi of the plaintiff to file the suit in question was raised. Section 2 (1) (g) was inserted by U.P. Act No. 5 of 1995 with effect from 26.9.1994. It provides that any building which is on monthly rent exceeds two thousands rupees per month would not come under the purview of the Act. As already noted hereinabove, the rate of rent of the building in dispute was Rs. 2153/- per month whereas the suit was filed in the year 2007 after the insertion of the Section 2 (1)(g) in Act. Record of the case clearly indicates that earlier in the suit No. 6 of 2003 filed by the revisionist for the arrears of rent and ejectment, the Court below had recorded a specific finding on the basis of the admissions of the parties, that provisions of U.P. Act No. 13 of 1972 would not be applicable as the monthly rent of the premises in question was above Rs. 2,000/- This fact has not been disputed by the Opposite Party-bank. 13. It is also notable that the parties in both the aforementioned suits were same and the applicability of the U.P. Act No. 13 of 1972 to the disputed building was substantially in issue but still the Court below totally ignored the finding of the Court passed in Suit No. 6 of 2003 and failed to consider the plea of res judicata raised by the plaintiff-respondent. The Court below completely misdirected itself by giving undue emphasis and irrelevant consideration to (i) when the tenancy between the parties had commenced (ii) initially what was the rent of the building. Admittedly, the monthly rent was fixed at the rate of Rs. 2153/- in the proceedings under Section Section 21 (8) of the Act and the suit in question was filed in the year 2007 therefore in view of the Section 2 (1)(g) of the Act the disputed premises fell beyond the purview of the Act. 14. The reasoning assigned by the Court below is superfluous and has not considered the matter in right perspective and was swayed by totally irrelevant consideration. 15. The Court below has further mis-construed and mis-applied the law laid down by this Court in the case of Hari Om Srivastava v. Ram Laxman Janki (supra). The Court below has also committed grave error in holding that the notice was invalid. Neither the respondent, at any stage, either while replying to the notice nor in the written statement has challenged the validity of the notice. Even otherwise also Rajendra Swaroop Agarwal being the Karta of the said H.U.F. was fully entitled to file the present suit on behalf of Ram Swaroop Natthimal, Qasba Harduaganj, District Aligarh H.U.F.. If suit is filed by one of the co-landlord/landlords without impleading the other landlord/partners/co-owners of a firm is maintainable and law on this point is well-settled and need not elaboration. It is also pertinent to note that none of the members of the H.U.F. objected to issuance of notice or filing of the suit. Since the U.P. Act No. 13 of 1972 was not applicable, Opposite Party-bank was not entitled for any benefit under Section 20 (4) of the Act. 16. The judgment and order dated 19.8.2011 passed by the Additional District Judge in SCC Suit No. 12 of 2007 is illegal, arbitrary and cannot be sustained. Since the U.P. Act No. 13 of 1972 was not applicable, Opposite Party-bank was not entitled for any benefit under Section 20 (4) of the Act. 16. The judgment and order dated 19.8.2011 passed by the Additional District Judge in SCC Suit No. 12 of 2007 is illegal, arbitrary and cannot be sustained. The Court below has totally overlooked the fundamental aspect of the matter and thereby fell into a grave error in dismissing the suit filed by the revisionist. 17. In view of what has been discussed herein above, this revision deserves to be allowed and is hereby allowed. The judgment and order dated dated 19.8.2011 passed by the Additional District Judge in SCC Suit No. 12 of 2007 is set aside and the matter is remanded to the concerned Court below to pass afresh order in the light of the observations made herein above preferably within a period of three months from the date of receipt of the certified copy of this order. 18. No order as to costs. —————