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2016 DIGILAW 2365 (ALL)

Suraj Bhan v. Dinesh Kumar Gupta

2016-07-08

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard Shri Puneet Agarwal, learned counsel for the petitioners and Shri J.S. Pandey, learned counsel for the respondents. 2. This petition is directed against the eviction decree passed by the Court below. The eviction suit was filed on the ground of default in payment of rent and material alteration. A notice dated 15.4.2005 has been served upon the petitioners with the specific contention that the petitioners are tenant of one shop namely Property No.3/65 situated at Chatta Bazaar, Agra at the rent of Rs.130 p.m. besides taxes. The rent since 1.4.2002 and the municipal taxes since 1.1.1996 were due. 3. This apart, there are allegations of material alteration on the part of the tenant in the shop in question. 4. The contention is that by removal of wooden gate and reduction of level of the platform in front of the shop in question, the tenant had disfigured it resulting in diminishing its value. A tin shed had illegally been put damaging the wall of the shop, resultantly, cracks appeared in the wall of the shop. 5. The reply was given by the tenant through his Advocate on 27.4.2005. It was mentioned therein that the rent was tendered through the money order which was refused. The correct rate of rent was Rs.20/- p.m., however, the tenant in order to save him from eviction, tendered the entire rent and taxes through the money orders dated 26.4.2005. As the total amount of Rs.5000/- could not have sent through one money-order, two money-orders were sent by the petitioner. 6. So far as the material alteration is concerned, it was categorically denied that any alterations/constructions have been made by the tenant in the tenanted shop. 7. The suit was filed in the year 2005 with the categorical assertion that the rent of shop in question is Rs.130/- p.m. besides taxes. The trial court framed eight issues. 8. Issue Nos.2 & 3 were on the default in payment and whether the taxes were included in the rent as claimed by the tenant. 9. Issue No.5 was whether benefit of Section 20(4) were available to the defendant. 10. The trial court framed eight issues. 8. Issue Nos.2 & 3 were on the default in payment and whether the taxes were included in the rent as claimed by the tenant. 9. Issue No.5 was whether benefit of Section 20(4) were available to the defendant. 10. On Issue Nos.2 & 3, the findings have been recorded that the rate of rent is admitted to both the parties which is Rs.130/- p.m. As per Section 7 of the U.P. Act No.13 of 1972, every tenant is under obligation to pay the taxes to the landlord in addition to and as part of the rent. The taxes are water tax and 20% of the enhancement in the house tax. It was, therefore, held that the tenant was under obligation to pay water tax besides rent. Paper Nos. 41Ga & 44Ga were filed by the plaintiffs/landlords to prove that they were paying water tax to the Nagar Nigam. The defendants/tenant also admitted that there is a water connection in the premises. 11. It was, therefore, held that despite the service of notice, the tenant did not tender taxes as demanded by the landlord and, therefore, had defaulted in payment of rent. 12. On the issue of according benefit of Section 20(4) of the Act, it was held that the first date of hearing in the instant case was 26.10.2010. Though some amount was deposited by the tenant through tenders till 26.10.2010 but there was a default of approximately Rs.2002/-, for deposit of which, an application was moved by the tenant on 8.3.2011. As the shortfall was made good much after the first date of hearing which was 26.10.2010, the benefit of Section 20(4) of the Act could not be accorded to him. 13. On the plea of material alteration, it was found that the constructions raised by the defendants have resulted in diminishing the value of the building. 14. Before the revisional court, the plea was taken by the defendants that the Court below had illegally returned the findings on the first date of hearing. The first date of hearing according to the defendants, was 23.3.2011 when they moved an application 67Ga before the trial court for making good the shortfall. 15. There was some mistake in the calculation by the counsel and in the case of such a negligible shortfall, the eviction decree could not have been passed. The first date of hearing according to the defendants, was 23.3.2011 when they moved an application 67Ga before the trial court for making good the shortfall. 15. There was some mistake in the calculation by the counsel and in the case of such a negligible shortfall, the eviction decree could not have been passed. The revisional court did not accept this argument and affirmed the eviction decree. 16. Challenging these findings, the submission of learned counsel for the petitioners is that the Courts below have erred in concluding the date of first hearing as 26.10.2010 which was the date fixed for filing of the written statement. 17. The “first date of hearing” as contemplated in Sub-Section (4) of Section 20 of the Act, denotes the date on which the Court apply its mind for the first time on the issues between the parties. The date fixed for filing of the written statement could not be treated as the first date of hearing. Reliance is placed upon the judgment of Apex Court in Mam Chand Pal v. Smt. Shanti Agarwal, 2002 (1) ARC 370. Emphasis was supplied to paragraph 5 of the said judgment. 18. Further submission is that the shortfall, if any, was negligible, the petitioner has thus complied with the provisions of Section 20(4) of the Act and the Courts below had erred in refusing to accord the benefit thereof. In support of this submission, reliance is placed upon the judgment of Apex Court in Anirudha Ramakrishna Karlekar v. Smt. Jankibai R. Bedekar, 1991 (1) ARC 386. 19. On the question of non-payment of water tax, the submission is that the water tax cannot be demanded at the flat rate. Moreover, there was no obligation of the tenant to offer or deposit. The burden was upon the landlord to intimate/indicate the share of water tax payable by the tenant. 20. No such indication was given by the landlord herein and, therefore, the tenant cannot be said to have defaulted. The amount of water tax which was payable by the defendant was not disclosed either in the notice or in the plaint. 21. Placing reliance upon the judgment of Apex Court in Kumud Kumar Kaushik & Ors. v. 4th Addl. 20. No such indication was given by the landlord herein and, therefore, the tenant cannot be said to have defaulted. The amount of water tax which was payable by the defendant was not disclosed either in the notice or in the plaint. 21. Placing reliance upon the judgment of Apex Court in Kumud Kumar Kaushik & Ors. v. 4th Addl. District Judge, Ghaziabad & Ors., 1991 (2) ARC 354 it is submitted that to avail the benefit of Section 20(4) of the Act, the tenant was not obliged to deposit the water tax and house tax. 22. On the other hand, learned counsel for the respondents submits that the water tax is an integral part of the rent, the liability of the tenant to tender it to the landlord is contemplated under Section 7 of the Act, 1972. The rate of water tax is fixed by the Local Body and the tenant was required to tender it at the said fixed rate. It is not a case where there are several tenants in one building and thus there was no question of disclosure of share of the tenant by the landlord. Admittedly, the tenant had defaulted in payment of water tax and, therefore, he was in default on the date of notice. 23. So far as the question of grant of benefit of Section 20(4) of the Act is concerned, the first date of hearing was rightly determined by the Courts below. 24. There is no infirmity, the shortfall deposited much later to the date of first hearing could not have been adjusted for granting the benefit of Section 20(4) of the Act. 25. Having heard learned counsel for the parties and perused the record. 26. It is noteworthy that the Judge Small Causes Court had recorded a categorical finding that the suit was filed on 2.8.2005. The defendant had put in appearance on 5.8.2010 and 20.8.2010 was fixed for filing of the written statement/final hearing. 27. Again on the request made by the defendant, 26.10.2010 was fixed for filing the written statement. The written statement was filed on 26.10.2010 and on the said date itself the Court had proceeded for final disposal of the suit. 28. As the issues between the parties were set out before the Court below on 26.10.2010 and having applied its mind on the dispute between the parties, the Court had proceeded for final disposal. The written statement was filed on 26.10.2010 and on the said date itself the Court had proceeded for final disposal of the suit. 28. As the issues between the parties were set out before the Court below on 26.10.2010 and having applied its mind on the dispute between the parties, the Court had proceeded for final disposal. In view thereof, it cannot be said that the Court below had erred in determination of the first date of hearing as 26.10.2010. 29. Admittedly, the deposits made by the defendant by the said date were in short. This shortfall was made good by the defendant by moving an application on 8.3.2011. The amount of Rs.2000/- which was in short-fall cannot be said to negligible amount looking to the rate of rent of the suit property in question which is only Rs. 130 p.m. besides water tax. 30. In view of the above, the findings recorded by the Court below on the issue of default cannot be said to have suffered from any error or infirmity. 31. So far as the water taxes are concerned, in view of Section 7 of the Act, the tenant is under obligation to pay water tax besides rent at the rate as admissible to both the parties. It is not the case of a building which is occupied by several tenants. The rate of water tax is fixed by the Local Authorities and the tenant was required to tender it at the same rate. 32. Reliance placed upon the judgment of Apex Court in Om Prakash Nigam v. Ved Prakash Gupta, 1981 ARC 675 is misconceived inasmuch as, the ratio of judgment in (supra) is not applicable on the facts and circumstances of this case. 33. As far as the report in M.B. Sanghi, Advocate v. The High Court of Punjab & Haryana & Ors., 1991 (2) ARC 345 is concerned, suffice it to note that the shortfall of Rs.2000/- in the deposits made by the tenant did not include water tax only. The water tax as per the computation given in the judgment was only Rs.494/- from 1.1.1995 to 26.1.2010. Thus, the shortfall of Rs.2000/- was rightly treated as the shortfall in arrears of rent. It cannot be said to be negligible looking to the rate of rent and as such the above noted report/ruling is of no benefit to the tenant. The water tax as per the computation given in the judgment was only Rs.494/- from 1.1.1995 to 26.1.2010. Thus, the shortfall of Rs.2000/- was rightly treated as the shortfall in arrears of rent. It cannot be said to be negligible looking to the rate of rent and as such the above noted report/ruling is of no benefit to the tenant. The tenant was liable to pay water tax and he has failed to produce any contract in writing, to the contrary. 34. Following the dictum of this Court in Ram Pratap Singh v. Vinod Kumar Shivhare, 2008 (3) ARC 476 , Mahmood Ali Khan v. 2nd Addl. District Judge Alld. & Ors. 2015 (3) ARC 495 it is held that the findings recorded by the Courts below that the entire amount of rent had not been deposited on the first date of hearing is not amenable to judicial review. 35. It is well settled that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, this Court does not ordinarily interfere in the findings of fact recorded by the Civil Court. It is not a case where it can be said that material injustice has been caused to the petitioner and there is an error apparent on the face of record. 36. The findings are admissible on the basis of evidence on record and need not be interfered. 37. Lastly, learned counsel for the petitioner prays that the petitioner may be given a reasonable time so that he may shift his belongings to some other place. 38. To this submission, learned counsel for the respondent has no objection. 39. In view thereof, it is directed that: - (a) the petitioner shall file an undertaking within a period of three weeks from the date of production of certified copy of this order before the Executing Court that he shall vacate the premises in question on or before 1.10.2016. 40. In case such an undertaking is filed within the aforesaid period, no coercive action shall be taken against him. (b) However, the petitioner will continue to pay rent regularly to the landlord as and when it falls due till the date of vacation. 41. In case of any default of any of the aforesaid conditions, the eviction decree shall become executable forthwith. 42. With the above observations and directions, this petition is dismissed. Petition dismissed.