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2015 DIGILAW 3384 (ALL)

SANJAY AND ANOTHER v. VIMLA RANI

2015-10-29

MANOJ KUMAR GUPTA

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JUDGMENT Hon’ble Manoj Kumar Gupta, J.—The first respondent Smt. Vimla Rani (hereinafter referred to as ‘the plaintiff’) filed SCC suit No. 03 of 1997 for recovery of arrears of rent and for eviction of Surajpal, predecessor in interest of the petitioners and the respondent second set, in respect of a shop situated at Rishi Market, Etah. According to the plaint case, Surajpal had been the tenant since before 1970 on payment of Rs. 60/- per month as rent, which since 1.5.1975 was enhanced to Rs. 200/- per month. It is claimed that since 1.10.1970, Nagar Palika, Etah imposed water tax @ 10% and house tax @ 5% on the annual value of the building. It is alleged that for the period 1.10.1970 to 31.3.1981, the annual value was assessed at Rs. 720/- per annum and since 1.4.1981 at Rs. 2400/- per annum. The provisions of U.P. Act No. 13 of 1972 (hereinafter referred to as “the Act”) are applicable. It is claimed that under Section 7 of the Act, the taxes form part of the rent, but since 1.10.1070, municipal taxes were not paid, nor the rent since November, 1995. The plaintiff had served a notice dated 27.3.1996 demanding arrears of rent and municipal taxes. Since the tenant failed to pay the arrears nor vacated the shop and hence, the suit. 2. The suit was contested by the tenant Surajpal by filing a written statement in which he claimed that there was no agreement between the parties making him liable to pay municipal taxes. He denied the liability to pay taxes. He further alleged that the notice dated 27.3.1996 was not served on him. He admitted that the rent was not paid since November, 1995 but claimed that the plaintiff herself stopped accepting the rent. The tenant also claimed benefit of Section 20(4) of the Act as the amount contemplated therein was allegedly deposited before the first date of hearing. 3. The trial Court framed various issues for determination. It decided issue No. 3 and 4 as preliminary issues by order dated 18.2.1998. While deciding issue No. 3 it held that that the defendant-tenant is not entitled to the benefit of Section 20 (4) of the Act. On issue No. 4, a finding was returned that the Judge Small Causes Court has full jurisdiction to try the suit. It decided issue No. 3 and 4 as preliminary issues by order dated 18.2.1998. While deciding issue No. 3 it held that that the defendant-tenant is not entitled to the benefit of Section 20 (4) of the Act. On issue No. 4, a finding was returned that the Judge Small Causes Court has full jurisdiction to try the suit. The order of the trial Court dated 18.2.1998 was challenged by the tenant by filing a revision which was dismissed on 25.2.1999. Thereafter, the tenant preferred writ petition No. 14843 of 1999 before this Court, which was disposed of with liberty to the tenant to challenge the order deciding preliminary issues alongwith the final order. 4. During pendency of the suit, the tenant Surajpal died and in his place the petitioners and the respondent second set were substituted. They filed separate written statement and also evidence. Ultimately, by judgement and decree dated 23.4.2011, the trial Court decreed the suit for recovery of arrears of rent and for ejectment. The trial Court found that rent since November, 1995 was not paid, nor any amount towards municipal taxes. The tenant also failed to deposit the entire amount contemplated by Section 20(4) at the first hearing of the suit and consequently decreed the suit on ground of default with the meaning of Section 20(2) of the Act. Aggrieved by the judgement of the trial Court, the tenants preferred SCC revision No. 6 of 2011, which has been dismissed by the Additional District Judge Court No. 3, Etah by judgement dated 18.11.2014. These judgements are under challenge before this Court under Article 227 of the Constitution. 5. Learned counsel for the petitioners made twofold submissions. First, that the petitioners have deposited a sum of Rs. 5580/- on 11.2.1997 much before the first date of hearing on 20.2.1998 and thus, they were entitled to benefit of Section 20(4) of the Act. It is urged that the aforesaid amount included a sum of Rs. 1080/- towards municipal taxes as per the demand made in the plaint and thus, the finding recorded by the Courts below that the entire amount of taxes had not been deposited on the first date of hearing is illegal and perverse. Second, it is submitted that arguendo the petitioners were liable to pay municipal taxes since 1.10.1970, even the said amount stands duly deposited by tender dated 13.4.1998 of Rs. 6974/-. Second, it is submitted that arguendo the petitioners were liable to pay municipal taxes since 1.10.1970, even the said amount stands duly deposited by tender dated 13.4.1998 of Rs. 6974/-. Thus, the suit for eviction was wrongly decreed. 6. On the other hand, learned counsel for the plaintiff-respondent submitted that the Courts below have entered a specific finding of fact that the tenant was liable to pay water taxes as per the provisions of Section 7 of the Act and the said amount having not been deposited on the first date of hearing, the Courts below were fully justified in refusing to extend the benefit of Section 20(4) of the Act. It is further submitted that for taking benefit of provisions of Section 20(4) of the Act, the tenant was under obligation to deposit even time barred rent and arrears of municipal taxes, the same being part of rent. However, entire arrears of house tax having not been deposited, compliance of Section 20(4) of the Act was not made. It was further urged that the deposit made on 13.4.1998 was beyond the first date of hearing and such deposit will not enure to the benefit of the tenant for the purposes of Section 20(4) of the Act. 7. These rival submissions fall for consideration. 8. Concededly, on 11.2.1997 the tenant made a deposit of Rs. 5580/-. According to the tender, the aforesaid amount of Rs. 5580/- represents rent of 15 months @ Rs. 200/- per month (from November, 1995 to January 1997), Rs. 1080/- towards taxes and the remaining amount towards lawyer’s fee, cost, interest etc. According to the plaint assertions, the municipal taxes were payable @ 15% per annum on the annual value of the building. In paragraph 11 of the plaint, which is the clause relating to the valuation for determining the jurisdiction and for purposes of payment of Court fee, the plaintiff had valued the suit by taking into consideration the arrears of rent and municipal taxes of last three years only, as for the remaining period, the claim had become barred by time. Thus, a sum of Rs. 1080/- was claimed as arrears of municipal taxes of last three years preceding the date of filing of the suit. The aforesaid figure represented municipal taxes @ Rs. 360/- per annum i.e., 15% on the annual value of Rs. 2400/-. 9. Thus, a sum of Rs. 1080/- was claimed as arrears of municipal taxes of last three years preceding the date of filing of the suit. The aforesaid figure represented municipal taxes @ Rs. 360/- per annum i.e., 15% on the annual value of Rs. 2400/-. 9. The trial Court has held that the tenant was liable to pay municipal taxes, as he failed to prove any contract in writing to the contrary. In fact, the trial Court has found that the tenant Surajpal had executed a rent note dated 25.4.1975 wherein he admitted his liability to pay municipal taxes. It has further been held that Rs. 200/- per month which was being paid by the tenant did not include the municipal taxes. These findings have not been challenged by learned counsel for the petitioners. 10. Section 7 of the Act specifically provides that water tax is payable by the tenant in addition to and as part of rent. The same view has been taken in a string of decisions of this Court. (See : Jwala Prasad Jain v. IVth Additional District Judge, Etah, 1985 (1) ARC 201; Jagtar Singh Chopra v. Trilok Chandra, 1999(2) ARC 292; Mirza Humayun Beg and another v. II Additional District Judge, Lucknow and others, 1981 ARC 175; Abdul Alim v. District Judge, Jhansi and others, 1995 (2) ARC 52 . Thus, for taking benefit of provisions of Section 20(4) of the Act, unless entire amount of rent due is deposited which as discussed above, would include the arrears of municipal taxes, the benefit of the said provision cannot be extended to a tenant. In Raj Rani Kapoor v. Bhupinder Singh, 1990 (2) AWC 1497 , this Court held as under : “The statutory liability guaranteed under Section 7 of the U.P. Act 13 of 1972 is in additional to the contractual liability and this also under the law is payable as rent. The tenant was, therefore, obliged to deposit the entire amount of rent payable by him if he wanted to take the benefit of Section 20 (4) to avoid his eviction.” 11. The tenant was, therefore, obliged to deposit the entire amount of rent payable by him if he wanted to take the benefit of Section 20 (4) to avoid his eviction.” 11. The same view has been taken by this Court in Abdul Alim v. District Judge, Jhansi and others, 1995 (2) ARC 52 , wherein it has been held as under : “Under Section 7 of the U.P. Act XIII of 1972 the liability to pay water tax is of the tenant subject to any contract in writing to the contrary. There is admittedly no contract in writing to the contrary and hence and liability of water tax was that of the tenant. Under Section 7 the water-tax has to be paid by the tenant to the landlord in additional to and as part of the rent. Admittedly, the tenant has been paying or depositing rent at Rs. 90/- per month which did not include water-tax. Hence, in my opinion, the tenant was liable to eviction since he has not paid water-tax.” .................. In my opinion, once it is held that the tenant has not paid the rent including water-tax for a period of four months or more, he will become liable for eviction unless he is saved under Section 20(4) of the U.P. Act XIII of 1972. It cannot be said in this case that the tenant is saved by Section 20(4) because he has not even deposited the water-tax even on the first date of hearing.” 12. In the plaint, though municipal taxes was claimed since 1.10.1970, but for purposes of valuation and Court fees, the arrears of last 3 years alone was taken into consideration, as rest of the amount had since become barred by limitation. It is now no more res integra that for taking benefit of provision of Section 20(4) of the Act, the tenant has to deposit even time barred rent. The phrase “entire amount of rent and damages for use and occupation of the building due from the tenant” employed in Section 20(4) of the Act includes even the claim in respect of time barred rent as held by the Supreme Court in Subhash Chandra v. Additional District and Sessions Judge, Saharanpur, (1989) 2 SCC 110 and in the Division Bench judgment of this Court in Mahesh Chandra v. II Additional District Judge, Meerut and others, 1991 (1) ARC 2. Concededly, Rs. Concededly, Rs. 1080/- deposited on 11.2.1997 represented the taxes of last three years preceding the date of institution of the suit in the year 1997. The house tax @ 10% on the annual value was levied since 1970. However, the liability to pay water tax @ 10% of the annual value accrued since 15.7.1972, the date on which ‘Act’ came into force. The arrears of municipal taxes for the period between 15.7.1972 until before three years of the institution of the suit, represents a huge sum, much more than several months rent. The said amount was admittedly not deposited at or before the first date of hearing. Consequently, this Court does not find any illegality in concurrent findings entered by the Courts below that the petitioners have not deposited the entire arrears of municipal taxes and were thus not entitled to benefit of Section 20(4) of the Act. 13. The next limb of argument of the petitioners is that the short fall was made good by depositing Rs. 6974/- on 13.4.1998. It is not disputed before this Court that the first date of hearing was 20.2.1998, as held by revisional Court. The deposit made by the tenant to meet the short fall was thus after the first date of hearing. It has been held by this Court in Radhey Shyam Patwa v. Xth Additional District Judge and others, 1993 (2) ARC 485, that the delay in making deposit under Section 20(4) of the Act cannot be condoned as provisions of Limitation Act are not attracted. Further, this Court in a more recent decision in the case of Khubi Ram alias Azad Mantoo v. VIIth Additional District Judge, Azamgarh and others, (2009) 2 ARC 79, placing reliance on the Supreme Court’s decision in the case of E. Palanisamy v. Palanisamy (D) and others, (2003) 1 SCC 123 , held that a beneficial provision made for protection of the tenant has to be strictly complied with in the manner provided under the statute. In that respect, the equitable considerations have no place. While taking such view, the Court refused to extend the benefit of the provisions of Section 20(4) of the Act to the tenant, having found that the amount deposited in purported compliance of Section 20(4) of the Act is short by Rs. 237.27 ps. which was more than one month rent of Rs. 150/-. 14. While taking such view, the Court refused to extend the benefit of the provisions of Section 20(4) of the Act to the tenant, having found that the amount deposited in purported compliance of Section 20(4) of the Act is short by Rs. 237.27 ps. which was more than one month rent of Rs. 150/-. 14. In view of the said legal provision, the Courts below were justified in declining to give benefit of the deposits made after the first date of hearing. 15. No other submission has been made by learned counsel for the petitioners. 16. The petition lacks merit and is dismissed.