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2014 DIGILAW 3832 (ALL)

Shishu Kumar v. Ganesh Narain

2014-12-23

MAHENDRA DAYAL

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JUDGMENT Mahendra Dayal,J.: - Both the writ petitions arise out of the same judgment and order passed by the Civil Judge, Barabanki and 1st Additional District Judge, Barabanki, and as such for the sake of convenience both the writ petitions are being decided together by a common judgment. 2. The brief facts giving rise to the aforesaid two writ petitions are that the landlord who is petitioner in Writ Petition No. 1677 (R/C) of 1979 and is opposite party no.3 in Writ Petition No. 2800 (R/C) of 1979, filed a suit for ejectment against the tenant and for recovery of arrears of rent amounting to Rs. 2523.35 and compensation for use and occupation and also for recovery of Rs. 519.56 as water tax. The learned Civil Judge, Barabanki by means of the judgment and decree dated 2.8.1976 decreed the suit for recovery of Rs. 1764/- as arrears of rent as well as for ejectment of tenant from the premises in question. The landlord was also found entitled to recover compensation for use and occupation at the rate of Rs. 49/- per month (Rs.45/- as rent and Rs. 4/- per month as water tax) from the tenant till the recovery of possession on payment of necessary court fees. 3. Feeling aggrieved by the judgment and decree passed by the Civil Judge, Barabanki, both landlord and tenant preferred two revisions no. 20 of 1976 and 24 of 1976 before the District Judge, Barabanki, which were disposed of by the 1st Additional District Judge, Barabanki, vide judgment and order dated 12.4.1979. 4. The case of the landlord was that the tenant was in arrears of rent since 1.9.1970 and the rent was initially Rs. 75/- besides taxes but on the enforcement of U.P. Act No. 13 of 1972, the rate was enhanced to Rs. 93.07 paisa per month besides the taxes. According to the landlord the tenant was in arrears of 2523.35 which he did not pay to the landlord inspite of serving a notice of demand. However, it was further pleaded by the landlord that a sum of Rs. 1440/- has been deposited by the tenant prior to filing of the suit, hence they were claiming only Rs. 2523.75 as arrears of rent together with a sum of Rs. 519.56 towards water tax total amounting of Rs. 3042.91. However, it was further pleaded by the landlord that a sum of Rs. 1440/- has been deposited by the tenant prior to filing of the suit, hence they were claiming only Rs. 2523.75 as arrears of rent together with a sum of Rs. 519.56 towards water tax total amounting of Rs. 3042.91. It was further pleaded by the landlord that the tenant had closed the back door of the shop in question permanently with the result the shutters of the door have damaged which amounts to material alteration and loss to the building. 5. The tenant contested the suit by filing a written statement. According to the tenant the rate of rent was Rs. 45/- per month and not Rs. 75/- per month as claimed by the land lord. The tenant further stated that the rent was never enhanced to Rs. 93.75 per month. The tenant had served a wrong notice on 1.5.1972 which was duly replied on 25.9. 1972 and the rent for the month of April, 1971 was sent by Money Order to the landlord, who refused to accept the same. Thereafter the tenant again tendered the rent through the Money Order on 28.6.1991 which was again refused by the landlord. Having no other alternative, the tenant deposited the rent in court and continued to deposit the same. 6. With the aforesaid allegations the tenant pleaded that he was not in the arrears of rent. With regard to liability of payment of taxes it was pleaded that it was never agreed upon between the parties that the taxes would be paid by the tenant. The learned trial court on the basis of evidence on record came to the conclusion that the monthly rent of the disputed shop was Rs. 45/- per month and not Rs. 75/- per month. It was further found that no alterations were made by the tenant in the shop in question. However, the learned trial court found that the notice sent by the landlord for termination of tenancy was a valid notice because the tenant was in arrears of rent since September 1970. The tenant was further found liable to pay water tax at the Rs. 4/- per month since 16.6.1962. With the aforesaid finding the learned trial court decreed the suit for ejectment and recovery of part of arrears of rent including the water tax. 7. The tenant was further found liable to pay water tax at the Rs. 4/- per month since 16.6.1962. With the aforesaid finding the learned trial court decreed the suit for ejectment and recovery of part of arrears of rent including the water tax. 7. The tenant filed a revision being aggrieved by the judgment and decree of eviction while the landlord filed revision against the finding with regard to rate of rent and material alteration. During the pendency of the revision the tenant sought amendment of the written statement, by which he proposed to add a plea of waiver of notice alleging that notice was illegal and in -effective on account of waiver. The tenant also wanted to add a pleading to the effect that after the service of notice the landlord has withdrawn part of the rent deposited in the court and as such the notice demanding the arrears of rent and terminating its tenancy stood waived. 8. The landlord filed objection against the amendment application and the revisional court after a detailed discussion in the judgment, rejected the amendment application. The revisional court on merits also dismissed both the revisions with the finding that there was no perversity in the finding of fact recorded by the learned trial court with regard ot the rate of rent and material alteration. 9. I have heard learned counsel for the parties and have gone through the impugned judgment as well as the record of the case. 10. The learned counsel for the petitioner-tenant has submitted that after issuance of notice demanding the arrears of rent and terminating his tenancy the suit was filed after two years in 1974 and in the meantime the landlord withdrew the rent which was deposited by the tenant under Section 30 of U.P. Act No. 13 of 1972 and as such no rent was due when the suit was filed. It is a finding of fact by both the courts below that the rate of rent was Rs. 45/- per month and the petitioner-tenant has deposited the rent in the court at the rate of Rs. 45/- and up-to-date rent has been deposited by him. It is a finding of fact by both the courts below that the rate of rent was Rs. 45/- per month and the petitioner-tenant has deposited the rent in the court at the rate of Rs. 45/- and up-to-date rent has been deposited by him. It has further been argued on behalf of the petitioner-tenant that since the landlord has withdrawn the rent from the court after issuance of notice, hence notice stood waived and no suit could be filed on the basis of the said notice. 11. The learned counsel for the petitioner-tenant has relied upon a case reported in 2006 (2) ARC 236 Bullu and another Vs. Additional District Judge, Varanasi and others; in which it has been held that if after service of notice of demand, the tenant tenders the rent by means of Money Order, the tenant does not remain in arrears of rent and as such no cause of action would arise to the landlord to file a suit for eviction. 12. The submission on behalf of the petitioner-tenant is that the notice of demand was issued on 1.5.1972 which was duly replied on 25.9.1972. The rent was sent through Money Order firstly on 21.5.1971 and thereafter on 28.6.1971 and both the Money Orders were refused by the landlord. The petitioner-tenant after making efforts several times to pay the rent, deposited the same in the Court on 13.4.1972 and continued to deposit the same till filing of the suit. Thus the petitioner was not in arrears when the suit was filed in the year 1974. Moreover after issuance of notice of demand, the landlord withdrew the rent deposited by the petitioner-tenant under Section 30 of Act. It has further been submitted by the learned counsel for the petitioner-tenant that where the landlord has been refusing to accept the rent at the correct rate and has been claiming rent on higher rate and the tenant has as a consequence of refusal deposited the same in court under Section 30 of the Act and if thereafter landlord serves notice of demand again claiming higher rent, the tenant has a right to deposit the same under Section 30 of the Act at the correct rate. Thus the notice issued by the landlord stood waived and no suit either for ejectment or for recovery of arrears of rent could be filed on the basis of the said notice. 13. Thus the notice issued by the landlord stood waived and no suit either for ejectment or for recovery of arrears of rent could be filed on the basis of the said notice. 13. The learned counsel for the landlord while replying the argument advanced on behalf of the tenant submits that there is a concurrent finding of both the courts below that the tenant was in arrears of rent at the time when the suit was filed and the notice served by the landlord upon the tenant demanding arrears of rent and terminating his tenancy was a valid notice. He further submits that the controversy with regard to validity of the notice has been decided by the Full Bench of this Court in the decision reported in 2000 (1) ARC 653 G. Singh v. A.D.J.; in which it has been held that if the landlord has been refusing to accept the rent at correct rate and has been claiming rent at higher rate, and the tenant as a consequence of landlords' earlier refusal, deposited the rent in the court under Section 30 of the Act and if thereafter landlord serves formal notice of demand again at the higher rate and expresses his willingness to accept the rent, the tenant after receipt of notice is under an obligation to tender the rent at least at the rate admitted to him, to the landlord and has got no right to straightway deposit the same under Section 30 of the Act. The landlord in the present case demanded the arrears of rent by issuing a notice in year 1972 and on the Money Order being refused by the landlord in the year 1971, the tenant deposited the rent in court. As per the own showing of the tenant, he made an application for deposit of rent in the court on 13.4.1972 and the rent with effect from 1.4.1971 to 31.3.1972 was deposited by him. After this deposit the tenant issued notice on 1.5.1972 which was duly served upon him and was also duly replied on 29.5.1972. Thus after receiving the notice of demand by landlord, the tenant ought to have tendered the rent to the landlord instead of depositing the same in the Court. After this deposit the tenant issued notice on 1.5.1972 which was duly served upon him and was also duly replied on 29.5.1972. Thus after receiving the notice of demand by landlord, the tenant ought to have tendered the rent to the landlord instead of depositing the same in the Court. The language on Section 30 of U.P. Act No. 13 of 1972 which is being reproduced hereunder clearly indicates that the tenant can deposit the rent in court only till the time, the landlord expresses his willingness to accept the rent. 14. In this case after the tenant made an application for deposit of rent in the court, he received a notice of demand by landlord but there is nothing on record to show that after receiving the notice of the landlord, the tenant ever made any effort to tender the rent to the land lord. Thus, the deposit of rent made by the tenant after receiving the notice is illegal and cannot be taken into account while calculating arrears of rent. The Full Bench referred to above, has answered this controversy and has held that if after refusal in past the landlord serves notice of demand again and expresses his willingness to accept the rent, the tenant after receiving such notice is under an obligation to tender the rent at least at the rate admitted to him and has got no right to deposit the same in the court. 15. The provision of Section 20(4) of the Act further gives an opportunity to a defaulting tenant to save his tenancy by depositing the entire arrears of rent along with interest and cost of the suit on the first date of hearing. The petitioner-tenant in this case has also not availed of this opportunity and did not deposit any rent on the first date of hearing. Thus in view of the law laid down by the Full Bench of this Court referred to above, only that much of deposit could be held to be a valid deposit which was made prior to the receipt of notice of demand by the landlord, but the deposit after receipt of the notice of demand without making any effort to tender the same to the landlord, cannot be held to be a valid deposit. The courts below have rightly not taken into account the deposit made after receipt of notice while calculating arrears of rent. Thus the finding of fact recorded by both the courts below with regard to validity of notice and the arrears of rent is perfectly justified and does not call for any interference. 16. The landlord has also by means of filing Writ Petition No. 1677(R/C) of 1979 assailed the finding of the courts below, with regard to rate of rent along with material alteration allegedly made by the tenant. I do not find any merit in this writ petition also as the finding with regard to the rate of rent and material alteration is a finding of fact based on appraisal of evidence and I do not find any illegality or infirmity in the finding of facts recorded by both the courts below. 16. In view of the above, both the writ petitions deserve to be dismissed and are accordingly dismissed without order as to costs.