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2015 DIGILAW 474 (ALL)

Chandra Gupta v. Additional District Judge Hardoi

2015-03-12

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal,J. 1. The tenant-petitioner has filed this writ petition assailing the judgment and decree passed by Civil Judge, West, (Junior Division), Hardoi in SCC Suit No. 1/1991 on 28.11.2008, whereby a decree for ejectment of the tenant/ petitioner has been passed with cost along with the payment of arrears of rent, and the judgment and order dated 28.11.2008, passed by the District Judge, Hardoi in SCC Revision No. 4 of 2008, whereby a Revision preferred by the tenant/ petitioner against the judgment and decree of the Small Causes Court (Civil Judge West, Junior Division), has been dismissed. 2. The landlord/opposite parties no.3 to 7 are admittedly the owners and landlord of House no. 650 situated at Mohalla Aloo Thok, District Hardoi, in a portion of which the tenant- petitioner was a tenant on a monthly rent of Rs. 50/-. As per the averments made in the plaint, the tenant/petitioner took the aforesaid portion on rent in the year 1985 for running 'Kirana shop'. He used the premises as shop for a period of about 3 years but subsequently he started living in the said portion along with his family. It was further alleged in plaint that the tenant-petitioner started using verandah as kitchen, by which the roof and plaster of the verandah was damaged. Moreover, the tenant/petitioner also did not pay any rent with effect from October, 1989 and as such a notice demanding arrears of rent and terminating his tenancy was issued to him on 11.12.1990, which was refused by him on 12.12.1990 but inspite of that the tenant- petitioner neither vacated the premises in question nor paid the arrears of rent. The opposite party/ landlord then filed a suit for arrears of rent and ejectment and also on the ground of causing damage to the building which was contested by the tenant- petitioner by filing a written statement. The tenant-petitioner in his written statement denied having refused any notice and alleging that the rent with effect from October, 1989 to November, 1990 was paid by him to the opposite party- landlord but no receipt was given to him. After November, 1990 the opposite party - landlord refused to accept rent and filed the suit on frivolous grounds. The tenant-petitioner in his written statement denied having refused any notice and alleging that the rent with effect from October, 1989 to November, 1990 was paid by him to the opposite party- landlord but no receipt was given to him. After November, 1990 the opposite party - landlord refused to accept rent and filed the suit on frivolous grounds. It was further stated by the tenant- petitioner that up to date rent along with the interest and cost of the suit has been deposited in the Court on 12.4.1991. 3. The learned SCC Court on the basis of the pleadings of the parties framed 5 issues and on the basis of the evidence on record, concluded that the opposite parties/landlord have failed to prove that the tenant-petitioner has caused any damage to the building or that he has made any material alteration in the building. With regard to the payment of rent, the learned SCC Court found that the tenant-petitioner had not deposited the arrears of rent on the first date of hearing and as such he was not entitled to get the benefit of the provision of Section 20(4) of the U.P. Act No. 13 of 1972. On the basis of the aforesaid finding the learned SCC Court, by means of the impugned judgment and decree allowed the suit and passed decree for ejectment of the tenant/ petitioner and also passed a decree for payment of arrears of rent and damages. 4. Feeling aggrieved by the aforesaid judgment and decree, the tenant-petitioner preferred SCC Revision No. 4 of 2008 before the District Judge, Hardoi, which was also dismissed on 3.8.2009. 5. I have heard the learned counsel for the parties and have also gone through the record. 6. The learned counsel for the tenant-petitioner has assailed the judgment and decree of both the courts below, mainly on the ground that under Section 20 of the U.P. Act No. 13 of 1972, a suit could be filed against the tenant only after termination of the tenancy and the tenancy can be terminated only by giving a 30 days notice in writing as provided under the Rent Control Act as well as under Section 106 of the Transfer of the Property Act. The opposite parties-landlord although had stated in the plaint that they had issued a notice to the tenant-petitioner for demanding arrears of rent and also terminating his tenancy but the same was never served upon the tenant. A specific plea had been taken by the tenant-petitioner in his written statement that no notice was ever either served upon him or was ever refused by him. The burden of proving service of notice was therefore upon the opposite parties-landlord but the learned SCC Court inspite of there being dispute with regard to service of notice, did not frame any issue and also did not record any finding as to whether the tenancy of the tenant-petitioner was validly terminated or not? 7. The submission of the learned counsel for the petitioner is that unless the SCC Court comes to the conclusion that the tenancy has been validly terminated by issuing and serving statutory notice, it does not get jurisdiction to pass any order of eviction against the tenant. In support of his argument the learned counsel for the petitioner has relied upon a decision of this Court reported in 2013 (1) ARC page 488 Panna Devi (Smt. ) and others Vs. Kristo Dayal, in which it has been held that under Section 20 of the Rent Control Act it is clearly provided that the suit for eviction of tenant may be instituted if the tenant is in arrears of rent for not less than 4 months and has failed to pay the same within one month from the date of service upon him a notice of demand. Therefore, unless a notice of demand is given to the tenant which is allegedly in arrears of rent and no payment is made within one month from the date of service of notice, no suit for eviction of tenant would lie. 8. The learned counsel for the petitioner has further submitted that the provision of notice as provided in the Act, is mandatory and unless the court finds that the tenancy of the tenant has been terminated by giving a valid notice, the Court does not get jurisdiction to pass decree for eviction on any ground mentioned in the Section 20 of the Act. 9. 9. The next submission of the learned counsel for the petitioner is that even otherwise also the tenant/petitioner deposited the entire arrears of rent along with the interest and cost of the suit before the court below, and as such substantial compliance of Section 20(4) of the Act had already been made but both the courts below committed a manifest error of law in not taking into account the amount so deposited by the tenant-petitioner and recorded a perverse finding that that the tenant-petitioner was a defaulter. Thus, the judgment and decree passed by both the courts below are erroneous and are liable to be set aside. 10. Shri R.N. Tilhari Advocate on behalf of the opposite parties-landlord has contended that so far as the notice is concerned, the opposite parties-landlord had clearly stated in the plaint that the notice was issued to the tenant-petitioner demanding the arrears of rent and terminating his tenancy but the same was refused by him. The service of notice under law is presumed when the person to whom notice is issued refuses to receive the same. In the present case also the notice was not accepted by the tenant-petitioner and as such it would be deemed to have been served upon him. Although the tenant- petitioner had taken a plea in his written statement that no notice was served upon him, but he did not press this defence either before the SCC Court or before the revisional court. Since the tenant-petitioner had not taken this plea before the revisional court, the same cannot be allowed to be taken at this stage. Shri Tilhari has also submitted that not taking this defence before the courts below amounts to waiver of notice. The submission is that although the notice is mandatory and the opposite parties- landlord also made a specific averment in the plaint that the notice was issued to the tenant-petitioner but he refused to receive the same, the tenant-petitioner also did not press this ground either before the SCC Court or before the revisional court and as such by his conduct the tenant-petitioner waived the notice. In support of his argument Shri Tilhari has relied upon a decision reported in (1998)1 SCC 732 Martin & Harris Ltd. Vs. In support of his argument Shri Tilhari has relied upon a decision reported in (1998)1 SCC 732 Martin & Harris Ltd. Vs. Vith Additional District Judge and others, in which the Hon'ble Apex Court was dealing with a case under Section 21(1)(a) of U.P. Act No. 13 of 1972. The proviso of the aforesaid provision requires the landlord to file an application for eviction of a tenant only after expiry of six months from the date of issuing a notice to a tenant in case the landlord has purchased the building during the continuance of lease. The Hon'ble Apex Court although held the issuance of six months notice mandatory but laid down the law that such notice could be waived even by conduct of the tenant. He has submitted that if the tenant-petitioner had actually pressed the defence of notice, the SCC Court would have framed specific issue and the learned revisional court could also would have taken this point for consideration but the tenant-petitioner for the reason best known to him, did not raise this issue before both the courts below, the same therefore cannot be allowed to be taken at this stage. 11. The learned counsel has drawn the attention of the Court towards the judgment of the revisional court in para 2 of which the learned revisional court has mentioned that only two grounds have been mentioned in the memorandum of revision, first was that the order regarding the relief as provided under Section 20(4) of U.P. Act No.13 of 1972 is erroneous and secondly the order under revision was against the facts and was illegal. Thus from the perusal of the judgment of the revisional court it is evident that the tenant-petitioner did not raise the plea of notice before the revisional court. Even in the present writ petition no ground with regard to service or validity of notice has been taken as ground of the writ petition. Thus the learned revisional court rightly did not touch the point with regard to service and validity of notice. The tenant-petitioner has raised the point of service of notice only during the course of argument, which is not tenable in view of the fact that the same has not been taken as a ground earlier. 12. Thus the learned revisional court rightly did not touch the point with regard to service and validity of notice. The tenant-petitioner has raised the point of service of notice only during the course of argument, which is not tenable in view of the fact that the same has not been taken as a ground earlier. 12. From the perusal of the judgment of the learned revisional court and the memo of the writ petition, I find force in the submission of the learned counsel for the opposite parties-landlord that no ground with regard to notice was either taken before the revisional court or before this Court. Thus the same cannot be allowed to be taken at this stage. 13. The next submission on behalf of the tenant-petitioner is that the entire arrears of rent along with the interest and cost of the suit was deposited before the court below but the same was not taken into consideration by both the courts below. The reason for not taking into consideration the said amount was that the amount was not deposited on the first date of hearing and secondly that the tenant-petitioner had acquired a residential accommodation within the city of Hardoi and as such the benefit of Section 20(4) could not be given to him. 14. A perusal of the impugned judgment and decree indicates that when no amount of rent was deposited by the tenant-petitioner on the first date of hearing as required under Order 15 Rule 5 CPC, the defence of the tenant-petitioner was struck off. Although by the order dated 4.2.1994 the learned SCC Court permitted the tenant-petitioner to deposit the amount in instalment but on a revision being filed by the opposite parties-landlord, the revisional court while disposing of SCC Revision No. 3 of 1994, allowed the same and struck off the defence of the tenant-petitioner as provided under Order 15 Rule 5 CPC. 15. Feeling aggrieved by this order, the tenant-petitioner preferred Writ Petition No. 23 of 1995 before this Court, in which the aforesaid order was stayed but subsequently by the order dated 12.12.2008, the writ petition was dismissed for non prosecution. However, the order of striking of defence remained in abeyance since 1994 up till 2008 but in the meantime the SCC Suit was decided against the tenant-petitioner. 16. However, the order of striking of defence remained in abeyance since 1994 up till 2008 but in the meantime the SCC Suit was decided against the tenant-petitioner. 16. The submission of the learned counsel for the petitioner is that since the order striking of his defence was in abeyance therefore, the amount deposited by him before the court below should have been taken into consideration by both the courts below, while deciding as to whether the tenant-petitioner was defaulter or not? 17. It is an admitted fact that the tenant-petitioner did not deposit any amount on the first date of hearing. Even when SCC Court permitted him to deposit the rent in instalments, he did not deposit any amount. From the perusal of the supplementary rejoinder affidavit it appears that a sum of Rs. 500/- was deposited on 15.2.1994 and thereafter a sum of Rs. 550/- was deposited on 23.1.1995. 18. The learned counsel for the tenant-petitioner submits that prior to it he had also deposited the rent along with the interest and cost of suit on 12.4.1991. The learned SCC Court did not give the benefit of Section 20(4) of U.P. Act No. 13 of 1972 on the ground that the tenant-petitioner had constructed a house after the purchase of a plot in the name of his wife. 19. The submission of learned counsel for the tenant-petitioner is that he had taken the premises on rent for carrying on a business and for some time he actually carried on business by opening 'Kirana Shop' but subsequently he started living in it. Therefore, the tenancy was for the non-residential purpose and therefore the proviso appended to Section 20 of the Act, will not be attracted. 20. I find no force in the submission of the tenant-petitioner for the simple reason that the tenant-petitioner himself changed the user with implied consent of the landlord and there is a concurrent finding of both the courts below that the building in occupation of the tenant-petitioner was a residential building and thus both the courts below have rightly refused to give the benefit of Section 20(4) of the Act to the tenant-petitioner. 21. 21. This Court while hearing the writ petition under Article 226 of the Constitution of India for quahaug of the judgment and order has a limited jurisdiction and order can be quashed only if it is found that the court below has acted illegally or there is any error on the face of the record. It is a settled law that this Court while exercising writ jurisdiction cannot sit as a Court of Appeal. In the case of State of Madhya Pradesh Vs. Babu Lal and others reported in AIR 1977 SC 1718 it has been held by the Hon'ble Apex Court that one of the principles on which writ of certiorari is issued, is where the Court acts illegally and there is error on the face of record. Similar view has been expressed by the Hon'ble Apex Court in another case reported in AIR 1971 S.C. 1531 Bachan Singh and others Vs. Gauri Shankar Agarwal and others, in which it has been stated that unless the High Court is of the opinion that the order assailed suffers from error of law apparent from the face of record, it has no jurisdiction to quash the order by having recourse to its certiorari jurisdiction on the ground of error of law. It has also been held by the Hon'ble Apex Court that new plea cannot be entertained in the writ petition. 22. Having heard learned counsel for the parties and also having carefully gone through the impugned judgments, I am of the view that the judgment of both the courts below do not suffer from any error of law and the plea of notice cannot be raised in writ proceedings as the same was not raised before the revisional court, thus the writ petition is devoid of merit and is liable to be dismissed. 23. The writ petition is dismissed. The tenant-petitioner is directed to vacate the premises in his occupation within two months from the date of this judgment. It is further clarified that in case he fails to do so it shall be open for the opposite parties-land lord to enforce and execute the decree in accordance with law.