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2016 DIGILAW 1137 (ALL)

Satya Narayan v. Rama Shanker Jha

2016-03-30

MANOJ MISRA

body2016
JUDGMENT Manoj Misra,J. 1. Heard learned counsel for the applicant. 2. This is a defendant's revision under Section 25 of the Provincial Small Causes Courts Act, 1887, against the judgment and decree dated 22.02.2016 passed by the Additional District Judge, Court No.11, Kanpur Nagar in SCC Suit No. 72 of 2009 by which the plaintiff-respondent's suit for arrears of rent and eviction has been decreed against the defendant-revisionist. 3. The plaintiff-respondent instituted a suit alleging that the premises in question was let out to the defendant at the rate of Rs. 1500/- per month for residential purpose. It was alleged that the defendant unauthorisedly converted a portion of the accommodation for commercial use and did not pay any rent with effect from 01.04.2006 up to 28.02.2009 as a result a composite notice under Section 106 of the Transfer of Property Act, terminating the tenancy and demanding the arrears of rent for 35 months, amounting to Rs. 52, 500/-, was sent to the defendant, through counsel, on 03.03.2009, which was served on the defendant on 05.03.2009 but neither the defendant vacated the premises on expiry of one month period nor paid the arrears within the prescribed period instead sent an incorrect reply on 07.03.2009. 4. The defendant contested the suit admitting the relationship of landlord-tenant between the plaintiff and the defendant though claimed that since the inception of tenancy, a portion of the accommodation was being used for commercial purposes. It was denied that any rent was due from him to the landlord. In the additional pleas, it was set up that the landlord had agreed to sell the accommodation in dispute to the defendant and his brother for Rs. 4 lacs vide written agreement dated 14.02.2002 and at the time of execution of the agreement Rs. 25,000/- was received by him as earnest money and thereafter in the month of October, 2002 and December, 2002 further amount of Rs. 35,000/- and Rs. 40,000/- was paid to him but receipts thereof were not issued by him and, subsequently, the landlord resiled from executing the sale-deed. It was stated that as Rs. 1 lac became due and payable by the landlord towards the defendant, it was agreed by the landlord that the amount of Rs. 1 lac would be adjusted against future rent. 40,000/- was paid to him but receipts thereof were not issued by him and, subsequently, the landlord resiled from executing the sale-deed. It was stated that as Rs. 1 lac became due and payable by the landlord towards the defendant, it was agreed by the landlord that the amount of Rs. 1 lac would be adjusted against future rent. It was thus contended that the defendant was not a defaulter and upon receipt of notice terminating the tenancy, a money order of Rs. 4,500/- was sent on 06.02.2009 covering rent for the months of January, February and March, 2009. It was stated that the landlord had refused to accept the rent sent by money order as a result the rent for the aforesaid period was deposited under Section 30 of the U.P. Act No. 13 of 1972 in the Court of Civil Judge (Jr. Div.), Kanpur Nagar. It was also stated that thereafter the defendant also made deposit of rent in the suit proceeding and as such was entitled to the benefit of section 20(4) of the U.P. Act No. 13 of 1972. 5. The trial court framed as many as four points for consideration. There is no dispute with regard to validity of findings returned by the court below on points 1 and 2 which relates to the landlord-tenant relationship and the validity of the notice. 6. With regard to issue no. 3, which was as to whether the defendant had been a defaulter in making payment of rent, the trial court, after considering the detailed evidence on record, came to the conclusion that so far as payment of Rs. 35,000/- and Rs. 40,000/- under the agreement for sale was concerned, it was not evidenced by any documentary evidence therefore in the event of there being a denial of any such payment by the landlord, the same could not be held proved. 7. The trial court observed that the defendant had failed to produce any rent receipt after 1996 and the amount of Rs. 7. The trial court observed that the defendant had failed to produce any rent receipt after 1996 and the amount of Rs. 25,000/- which was paid by way of earnest money to the plaintiff by the defendant and his brother under the agreement for sale stood adjusted towards the rent that was payable and that the defendant had been a defaulter in payment of rent since 01.04.2006 up to 28.02.2009 and since the money order which was sent related to only three months rent i.e. from the month of January, 2009 up to the month of March, 2009, the tenant remained a defaulter and was liable for eviction under Section 20(a) of the U.P. Act No. 13 of 1972. 8. During the course of trial, the defendant had also taken a plea that a draft of Rs. 49,000/- was sent by him through his counsel in response to the notice terminating tenancy. The sending of any such draft was denied by the plaintiff and, in fact, the defendant himself admitted that such draft was encashed by him. Accordingly, the plea taken by the tenant that he had tendered the arrears to the landlord in compliance of the notice dated 03.03.2009 was disbelieved by the court below. 9. The deposit, allegedly made under Section 20(4) of the U.P. Act No. 13 of 1972, was also insufficient. Accordingly, after considering the evidence on record, the court below came to the conclusion that the defendant was a defaulter inasmuch as the burden was on the defendant to establish that he had paid the rent by producing rent receipts whereas the rent receipts produced by the defendant were only up to 1996 and thereafter even if the earnest money of Rs. 25,000/- was adjusted against future rent payable by the defendant to the landlord, the defendant was a defaulter since 01.04.2006 up to 28.02.2009 and as such was liable to be evicted. 10. Before the trial court, a plea was also taken by the defendant that from time to time some amounts were used to be paid by the defendant to the plaintiff for which paper slip receipts were being issued and if that amount is adjusted towards the rent, then the defendant would not be a defaulter. 10. Before the trial court, a plea was also taken by the defendant that from time to time some amounts were used to be paid by the defendant to the plaintiff for which paper slip receipts were being issued and if that amount is adjusted towards the rent, then the defendant would not be a defaulter. The said plea was also considered by the trial court and was rejected after considering the evidence on record and the statement of the landlord who disclosed that various other amounts that were exchanged between the parties did not relate to the rent but was in respect of money transaction that took place between the parties. 11. The learned counsel for the defendant submitted that the finding returned by the court below in respect of the defendant-revisionist being a defaulter is not based on proper consideration of the evidence on record and the said finding is vitiated in law. However, the learned counsel for the defendant failed to disclose that any evidence brought on record was ignored by the court below. Learned counsel for the applicant also failed to disclose that any relevant material was left out from consideration or that any irrelevant material or inadmissible evidence was taken into consideration while recording the said finding. There is also no allegation that the finding returned is based on misreading of any evidence on record. 12. In view of the above, the findings returned by the court below in respect of the defendant being a defaulter cannot be said to be a finding vitiated in law which may call for interference in exercise of revisional powers under Section 25 of the Provincial Small Causes Courts Act. 13. At this stage, the learned counsel for the revisionist submitted that since the agreement for sale was admitted between the parties and it was also admitted that Rs. 25,000/- was paid by the defendant to the plaintiff under the agreement for sale, there was no justifiable reason for the Court to have disbelieved the stand of the defendant that further amounts of Rs. 35,000/- and Rs. 40,000/- were paid by the defendant to the plaintiff under the said agreement. 14. The aforesaid contention of the learned counsel for the revisionist has no force because the plaintiff had denied receipt of any subsequent amount under the agreement for sale and no receipt had been produced in proof thereof. 35,000/- and Rs. 40,000/- were paid by the defendant to the plaintiff under the said agreement. 14. The aforesaid contention of the learned counsel for the revisionist has no force because the plaintiff had denied receipt of any subsequent amount under the agreement for sale and no receipt had been produced in proof thereof. Since Rs. 25,000/- under the agreement for sale was admitted by the landlord, the court below found that even after adjusting the said amount, the defendant was defaulter of more than four months which is the minimum required to make the tenant liable for eviction. 15. Accordingly, I do not find any legal infirmity in the order passed by the court below by which the suit of the plaintiff-respondent was decreed. 16. At this stage, the learned counsel for the applicant has submitted that the defendant-revisionist had been an old tenant and he is prepared to deposit the entire decretal amount before the court below and, therefore, some time may be provided to the defendant-revisionist to vacate the premises, otherwise, the defendant-revisionist would suffer severe hardship. 17. Considering the facts and circumstances of the case, it is hereby provided that if the defendant-revisionist deposits the entire decretal amount payable under the judgment and decree dated 22.02.2006 passed in SCC Suit No. 72 of 2009 for the period payable up to 31st March, 2016 by 30th April, 2016 and in addition thereto make a further deposit of damages at the rate of Rs. 1,500/- per month for a period of six months from 01.04.2016 up to 30.09.2016, by 30th April, 2016 and in addition thereto furnishes an undertaking that he would vacate and handover vacant possession of the accommodation in dispute to the landlord on 01st of October, 2016, the defendant-revisionist would be permitted to occupy the premises in question up to 30.09.2016. 18. It is made clear that if the defendant-revisionist fails to make deposit and furnish an undertaking, as provided herein above, by or before 30th April, 2016, the protection granted under this order would stand automatically vacated and it would be open to the landlord to execute the decree and obtain possession. It is also provided that if, after filing the undertaking, the defendant-revisionist fails to vacate the premises and handover vacant possession of the premises to the plaintiff-landlord, as per terms of undertaking, then he shall be liable for contempt of Court. 19. It is also provided that if, after filing the undertaking, the defendant-revisionist fails to vacate the premises and handover vacant possession of the premises to the plaintiff-landlord, as per terms of undertaking, then he shall be liable for contempt of Court. 19. Subject to above, the revision is dismissed.