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Allahabad High Court · body

2016 DIGILAW 1597 (ALL)

Rajesh Kumar v. Rajesh Kumar

2016-04-27

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard Sri Diwakar Rai Sharma learned counsel for the petitioner and Sri Tawyab Ahmed Khan learned counsel for the respondent. 2. The present petition arises out of a proceeding under section 20 (2) of U.P. Act no.13 of 1972. The eviction suit has been filed on 04.04.1986 on the ground that the defendant had defaulted in payment of rent which was @ Rs.600/-, according to the landlord. The suit had proceeded ex parte on 01.09.1986 after recording satisfaction regarding service of notice upon the defendant. 3. So far as the rate of rent is concerned, the dispute between the parties has been decided by judgment and order dated 24.09.1999 and the rate of rent of the disputed suit property was determined as Rs.50/- per month. 4. It appears that a recall application was filed on 25.09.1986 by the defendant which was allowed on the same date. According to the defendant, he had deposited the entire requisite dues of rent and other dues till 25.09.1986, which according to him was the first date of hearing. 5. In the present petition the dispute is as to whether on the date of notice, the defendant was in default of more than four months of rent. Another question for determination is as to whether the defendant is entitled for benefit of Section 20 (4) of the Act. 6. Learned counsel for the petitioner submits that the court below has erred in holding that the first date of hearing was 23.08.1986, which was the date mentioned in the summons. The court has proceeded ex parte on 01.09.1986 only after recording satisfaction regarding service of notice upon the defendant. There was no application of mind to the lis between the parties and therefore, either of the dates namely 23.08.1986 or 01.09.1986 could not be treated as first date of hearing. 7. On the application moved by the petitioner, when the Court had recalled the order to proceed ex parte by an order passed on the recall application dated 25.09.1986, it has applied its mind and, therefore, the said date could only be the first date of hearing within the meaning of Section 20 (4) of the Act. On 25.09.1986 the petitioner had deposited an amount of Rs.690/- which includes rent dues from September 1985 to December 1986. 8. On 25.09.1986 the petitioner had deposited an amount of Rs.690/- which includes rent dues from September 1985 to December 1986. 8. The Court below has held that the other requisite deposits namely the 9% interest on the rent dues and the cost of suit as contemplated under section 20 (4) of the Act have not been deposited by the first date of hearing of the suit. Learned counsel for the petitioner was required to demonstrate as to whether from his own calculation, it could be said that on the first date of hearing, which even if assumed to be on 25.09.1986 for the sake of arguments, he had deposited the entire dues as required under section 20 (4) of the Act. To this question, learned counsel for the petitioner could not submit a plausible answer. 9. So far as another question raised by the learned counsel for the petitioner that on the date of notice i.e. on 20.01.1986, the defendant was not in default of more than four months of rent, suffice it to say that the service of notice is sufficient. In the said notice the landlord had specifically stated that the tenant did not pay rent from September, 1985 onwards. Admittedly this notice was not replied by the defendant, rather he allegedly sent a Money order dated 10.03.1986 in the name of one Gyaneshwar Sahai Advocate who is stated to be the Advocate of the plaintiff. By the said Money order, the defendant tendered rent from September 1985 to September 1986. At no point of time earlier, the defendant objected to the assertion of the landlord that he was not in default for more than four months on the date of notice i.e. on 20.01.1986, prior to filing of the written statement. Even in the written statement only this plea was taken that rent was tendered through a Money order on 10.03.1986 which was sent by the defendant in the name of the Advocate of the plaintiff. No objection was raised to the plea of the landlord in the notice that he was in default. This is sufficient to conclude that on the date of notice i.e. on 20.01.1986, the defendant was in default for more than four months. 10. No other evidence was brought on record by the defendant to submit that the tenant had tendered rent to the landlord till December 1985. This is sufficient to conclude that on the date of notice i.e. on 20.01.1986, the defendant was in default for more than four months. 10. No other evidence was brought on record by the defendant to submit that the tenant had tendered rent to the landlord till December 1985. Admittedly no rent receipt is on record. 11. In the light of the above, even if it is accepted for the sake of argument that the first date of hearing was 25.09.1986, when the order on recall application was passed, there would be a short fall in the deposits made by the petitioner. The rate of rent is Rs.50/- per month as determined by the court in an earlier judgement dated 24.09.1999, therefore, computing the rent dues from September 1985 to December 1986, 9% interest, cost of suit, there was a short fall. 12. In view thereof, this Court does not find any reason to interfere in the conclusion drawn by the court below that the petitioner did not deposit the requisite dues as per Section 20 (4) of the Act and, therefore, he was not entitled for the benefit of the said provision. 13. No other point has been pressed. The eviction decree is thus affirmed. 14. Lastly learned counsel for the petitioner submits that the disputed accommodation is a non-residential accommodation, the petitioner requires some reasonable time to shift his belonging to another place. 15. To this submission, learned counsel for the respondent did not raise any objection. 16. It is, therefore, directed that the petitioner shall deposit the entire decretal money and file an undertaking before the Small Causes Court, Etah within a period of six weeks that he will vacate the shop in question on or before 01.11.2016. Till the date of vacation of the disputed shop, the damages at the rate of Rs.50/- per month shall be regularly paid by the petitioner to the respondent landlord. 17. In case of default in any of the above condition, the protection granted to the petitioner herein above shall automatically stand vacated and the eviction decree shall become executable forthwith. 18. With the above observation and directions the writ petition is dismissed. Petition dismissed.