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Allahabad High Court · body

2016 DIGILAW 1595 (ALL)

Gulab Chand Nagaria v. Piyush Agrawal

2016-04-27

MANOJ MISRA

body2016
JUDGMENT Manoj Misra, J. – Heard learned counsel for the defendant-revisionist and Sri Manish Tandon for the plaintiff-respondent. Sri Manish Tandon states that he does not wish to file any reply to the affidavit filed in support of the stay application therefore the revision may be decided finally at the fresh stage itself as all the relevant documents are already on record. Accordingly, with the consent of learned counsel for the parties, this revision is being decided finally at the fresh stage itself. 2. The instant revision under Section 25 of Provincial Small Cause Courts Act, 1887 has been filed by the defendant-revisionist against the judgment and decree dated 4th March, 2016, passed by Additional District Judge, Court No. 1, Kanpur Nagar in S.C.C. Suit No. 179 of 2012. 3. A perusal of the record would go to show that S.C.C. Suit No.179 of 2012 was instituted by the plaintiff-respondent against the defendant-revisionist for eviction; arrears of rent amounting to Rs.29332 for the period 01.10.2011 to 22.09.2012; mesne profits @ Rs. 150 per day from the date of termination of tenancy i.e. 23.09.2012 till institution of the suit i.e. 04.10.2012; pendent lite and future mesne profits @ Rs.150 per day; water tax for the period w.e.f. 01.10.2011 to 31.07.2012 amounting to Rs. 3500/-; cost, etc. Plaint case was that the plaintiff was co-owner and landlord of premises no.133/245, T.P. Nagar, Kanpur and defendant a tenant of one shop, bearing private shop no.2, on ground floor at a monthly rent of Rs.2,500/- besides statutory taxes i.e. water tax, drainage tax @ 14% and 4% respectively. It was alleged that the tenancy was month to month and that the defendant-revisionist had been in default in payment of rent with effect from 1st October, 2011 to 31st July, 2012 and had also failed to pay water tax and drainage tax for the said period amounting to Rs.3500/- and Rs.1000/- respectively. It was claimed that by a composite notice dated 21st August, 2012, which was served on 22.08.2012, the arrears of rent, etc. was demanded and tenancy was terminated on expiry of 30 days from the date of service thereof but, despite service of notice, the defendant neither vacated the premises in question nor paid the arrears of rent and taxes. It was claimed that by a composite notice dated 21st August, 2012, which was served on 22.08.2012, the arrears of rent, etc. was demanded and tenancy was terminated on expiry of 30 days from the date of service thereof but, despite service of notice, the defendant neither vacated the premises in question nor paid the arrears of rent and taxes. It was alleged that as the rent was higher than Rs.2,000/- per month, therefore, the accommodation was exempted from the provisions of U.P. Act No.13 of 1972 by virtue of Section 2(1)(g) of the Act. 4. The defendant-revisionist admitted landlord tenant relationship as also the rate of rent of the premises in question @ Rs.2500/- per month though claimed that it was inclusive of taxes. It was however claimed that the premises was an old construction and since it was initially let out at Rs.200 p.m. therefore by subsequent enhancement of rent by mutual consent the premises would not go out of the purview of UP Act No. 13 of 1972. It was further claimed that on the first date of hearing the tenant had deposited the entire dues and, therefore, was entitled to the benefit of sub-section (4) of Section 20 of the U.P. Act No.13 of 1972. 5. The trial Court examined the matter at length and recorded finding that since the rent payable by the defendant to the plaintiff was higher than Rs.2,000/- per month i.e. it was Rs.2,500/- per month on the date of institution of the suit, the provisions of U.P. Act No.13 of 1972 were not applicable and as such the benefit under section 20(4) of U.P. Act No.13 of 1972 was not available to the defendant. The Court below found that the notice terminating the tenancy was duly served on the defendant and he had also submitted a reply to the said notice and as the tenancy stood terminated, the defendant was liable to be evicted. The Court below further held that the defendant was in arrears on the date of the institution of suit, as claimed in the plaint, and the Court awarded mesne profit @ Rs.150/- per day with effect from the date of termination of tenancy up to the date of institution of suit as also pendent lite and future mesne profits at the same rate. In addition thereto it directed payment of water tax amounting to Rs.3,500/-. 6. In addition thereto it directed payment of water tax amounting to Rs.3,500/-. 6. Challenging the judgment and decree passed by the Court below, learned counsel for the defendant-revisionist submitted that so far as the liability to pay taxes separately in addition to rent is concerned, the same was not proved on record and, in fact, from the admission of the plaintiff in his cross-examination it became clear that Rs. 2,500/- per month was consolidated amount payable to the plaintiff-respondent which was inclusive of everything, therefore the decree of the Court below to the extent it directed for payment of water tax is erroneous in law and is liable to be set aside. In addition to above, it was submitted that the finding returned by the Court below that UP Act No.13 of 1972 was not applicable to the premises in question is not legally justified because it was admitted to the parties that initially when the premises in question was let out, the rent payable in the year 1973 was Rs.200/- per month and it was enhanced from time to time and last enhanced in the year 2007-08 to Rs.2,500/- per month and since it included taxes as well, the UP Act No. 13 of 1972 would be applicable, because it would not be applicable only where the accommodation has been let out on rent higher than Rs. 2,000/- per month. Learned counsel for the defendant-revisionist further submitted that there was no basis for awarding mesne profit @ Rs.150/- per day when the agreed rent between the parties was Rs.2,500/- per month. He further submitted that even assuming that UP Act No.13 of 1972 was not applicable, the provisions of section 114 of the Transfer of Property Act would apply and since the entire amount due, etc. was deposited in Court, the defendant was entitled to protection from eviction inasmuch as the notice terminating tenancy was sent because the tenant was a defaulter. 7. Per Contra, learned counsel for the plaintiff-respondent submitted that so far as the applicability of U.P. Act No.13 of 1972 is concerned, as it has been the admitted case of the defendant-revisionist that the consolidated amount payable towards rent and taxes was Rs. 7. Per Contra, learned counsel for the plaintiff-respondent submitted that so far as the applicability of U.P. Act No.13 of 1972 is concerned, as it has been the admitted case of the defendant-revisionist that the consolidated amount payable towards rent and taxes was Rs. 2,500/- per month, therefore, U.P. Act No.13 of 1972 would not be applicable by virtue of Section 2(1)(g) of U.P. Act No.13 of 1972 which provides that nothing in the Act shall apply to any building, whose monthly rent exceeds Rs. 2000/- and, as such, protection under the said Act would not be available to the defendant-revisionist. Learned counsel for the plaintiff-respondent placed reliance on two decisions of this Court i.e. 2015 (2) AWC 1396 , Smt. Savitri Devi Didwania (D) v. Allied Pharmaceutical and another and 2015 (2) AWC 1400 , Baleshwar Singh v. K.P. Singh (D) by his L.Rs, so as to contend that where a consolidated amount is paid which includes taxes, etc. the entire amount would qualify as rent. Learned counsel for the plaintiff further submitted that since U.P. Act No. 13 of 1972 was not applicable, any deposit made by the tenant on the first date of hearing cannot save him from eviction by virtue of sub-section (4) of Section 20 of U.P. Act No.13 of 1972. It was further submitted that the benefit of Section 114 of Transfer of Property Act would not be available to the defendant-revisionist, inasmuch as, there was no written lease operating between the parties which may enable forfeiture of lease for non payment of rent and allow the lessor to re-enter as contemplated by section 111 (g) of the T.P. Act so as to enable the defendant to avail benefit of section 114 of the said Act. It was further submitted that in this case there was no forfeiture as contemplated by section 111(g), instead tenancy, which was a month to month tenancy, was terminated by a notice under section 106 of the Act by serving a 30 days notice. 8. I have given thoughtful consideration to the submissions of learned counsel for the parties. So far as the applicability of U.P. Act No. 13 of 1972 is concerned, as it is admitted case of the defendant revisionist, vide paragraph 2 of the written statement, that Rs. 8. I have given thoughtful consideration to the submissions of learned counsel for the parties. So far as the applicability of U.P. Act No. 13 of 1972 is concerned, as it is admitted case of the defendant revisionist, vide paragraph 2 of the written statement, that Rs. 2,500/- per month was payable as rent by the defendant revisionist to the plaintiff-respondent towards rent inclusive of taxes, etc. by virtue of Section 2(1)(g) of the U.P. Act No.13 of 1972 as explained in the decisions of this Court in the case of Smt. Savitri Devi (supra) and Baleshwar Singh (supra), the building would be out of purview of U.P. Act No.13 of 1972, therefore, I find no error in the finding of the trial court in that regard. 9. So far as conferment of the benefit of Section 114 of the Transfer of Property Act is concerned, it is well settled in law that the benefit under Section 114 of the Transfer of Property Act would be available to the tenant only in a case where the lease has been determined by forfeiture as contemplated by section 111 of T.P. Act (vide Ganesh Prasad Dalal Dharmshala, Kanpur Nagar v. Kailash Nath Gupta, 2009 (2) ARC 642 . Further, in B.R. Trading Company v. Dharam Raj Sahu, 2007 SCC On Line All 885 : (2008) (3) 73 ARC 149, this court after considering various provisions and the law held as follows: - "In view of the aforesaid decisions of this Court, it has to be held that section 114 of the Act will not be attracted where the tenancy has been determined by a notice under section 106 of the Act. The contention of learned Counsel for the revisionists, therefore, cannot be accepted as in the present case the tenancy was determined by the notice sent under section 106 of the Act." 10. In the instant case, the tenancy of the defendant-revisionist was terminated by a notice under Section 106 of the Transfer of Property Act which was not dependent on exercise of right of re-entry under any express provision of any previous lease agreement between the parties as contemplated by section 111(g) of the T.P. Act, therefore, the benefit of Section 114 of the Transfer of Property Act was not available to the tenant-revisionist. As admittedly the rent payable by the defendant-revisionist was higher than Rs.2,000/- per month, the U.P. Act No.13 of 1972 was not applicable therefore the defendant-revisionist was also not entitled to the benefit of sub-section (4) of Section 20 of U.P. Act No.13 of 1972. Accordingly, the eviction decree cannot be faulted. 11. So far as the contention of learned counsel for the defendant-revisionist that the Court below was not justified in decreeing mesne profit @ Rs. 150/- per day and taxes separately is concerned, I find substance in the submission of the defendant-revisionist. 12. The Court below has not at all discussed any material so as to come to the conclusion that as per market value, the accommodation would yield rent @ Rs.150/- per day. Further, once the plaintiff had admitted in his statement before the Court below that apart from Rs.2,500/- per month nothing else was payable under any head by the defendant to the plaintiff, the decree for payment of water tax, etc. separately is not sustainable. 13. On the above issues this court could have remanded the matter, but Sri Manish Tandon learned counsel for the plaintiff-respondent agrees that the decree may be modified to the above extent instead of remanding the matter and that mesne profits may be awarded at the rate of Rs.2500/- p.m. 14. In view of the above, the revision is allowed in part. The eviction decree passed by the Court below and the decree to the extent it directs the defendant to pay arrears of rent amounting to Rs.29,332/- for the period from 1st October, 2011 to 22nd September, 2012 is confirmed. The decree awarding mesne profit @ Rs.150/- per day for the period starting from 23rd September, 2012 to 4th October, 2012 and the decree for recovery of pendent lite and future mesne profit @ Rs.150/- per day is modified to the extent that the same shall be @ Rs.2,500/- per month. So far as the decree for payment of Rs.3,500/- towards arrears of water tax with effect from 1st October, 2011 to 31st July, 2012 is concerned, the same is set aside. 15. At this stage, learned counsel for the defendant-revisionist prayed for some reasonable time to vacate the premises in question. 16. So far as the decree for payment of Rs.3,500/- towards arrears of water tax with effect from 1st October, 2011 to 31st July, 2012 is concerned, the same is set aside. 15. At this stage, learned counsel for the defendant-revisionist prayed for some reasonable time to vacate the premises in question. 16. Sri Manish Tandon, who appears for the plaintiff-respondent, has no objection if this Court grants reasonable time to the defendant-revisionist on filing an undertaking and on deposit of the entire decretal amount, subject to amount already deposited. 17. In view of the above, considering the facts and circumstances of this case, it is hereby provided that if the defendant-revisionist deposits the entire decretal amount payable under the judgment and decree dated 4th March, 2016, passed in S.C.C. Suit No. 179 of 2012 for the period payable up to 30th April, 2016 by 31st May, 2016, subject to adjustment of amount, if any, already deposited in Court, and in addition thereto make a further deposit of damages @ Rs.2,500/- per month for a period starting from 1st May, 2016 up to 31st October, 2016 by 31st May, 2016 and furnishes an undertaking by 31st May, 2016 before the Court below that he would vacate and handover vacant possession of the premises in question to the plaintiff-respondent on 1st November, 2016, the defendant revisionist would be permitted to occupy the premises in question up to 31st October, 2016. 18. It is made clear that if the defendant-revisionist fails to make deposit and furnish an undertaking as provided here-in-above, by or before 31st May, 2016, the protection granted under this order would automatically vacate and it would be open to the plaintiff-respondent to execute the decree and obtain possession. It is also provided that if after filing an undertaking, the defendant-revisionist fails to vacate the premises and handover vacant possession of the same to the plaintiff-respondent as per terms of undertaking, then he shall be liable for contempt of Court. Civil Misc. Delay Condonation Application No.134350 of 2016. By this application, the revisionist has prayed for condonation of 17 days delay in filing the revision. An affidavit has been filed in support of the delay condonation application. Sri Manish Tandon, who appears on behalf of the caveator-respondent, states that he has no objection if the delay condonation application is allowed. Civil Misc. Delay Condonation Application No.134350 of 2016. By this application, the revisionist has prayed for condonation of 17 days delay in filing the revision. An affidavit has been filed in support of the delay condonation application. Sri Manish Tandon, who appears on behalf of the caveator-respondent, states that he has no objection if the delay condonation application is allowed. In view of the above as also that sufficient reason has been disclosed in the affidavit to condone delay, the delay condonation application is allowed. The delay in filing the revision is condoned. The office shall assign regular number to the revision.