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2016 DIGILAW 2634 (ALL)

DINESH SAHU v. KRISHNA PAL YADAV

2016-08-01

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard Sri R.N. Tilhari, learned counsel for the revisionist and Sri Vikas Sharma, learned counsel, who has put in appearance on behalf of the respondent-plaintiff. 2. This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 assails the judgement rendered by the Court below in SCC Suit No. 0700012 of 2013 whereby the suit filed by the respondent-plaintiff was decreed and a decree of eviction coupled with the arrears of rent at the rate of Rs. 1700/- per month alongwith damages has been issued in his favour. 3. The brief facts of the case are that the revisionist is a tenant of the shop in question. The revisionist having committed default in the payment of rent was issued a notice dated 4.12.2012 which was served on him on 5.12.2012. The notice issued to the revisionist was to be complied with on or before 4.1.2013 insofar as the payment of arrears of rent is concerned. The failure on the part of the revisionist-tenant in making payment of rent as claimed in terms of notice dated 4.12.2012, gave rise to the aforesaid suit which was filed on Feb. 19, 2013. The first date of hearing of the suit was 23.5.2013 and the position of facts to this extent is undisputed between the parties. It is also undisputed that the revisionist-tenant made the compliance of Order XV Rule 5 CPC read with Section 20 (4) of the Rent Control Act by depositing the rent in terms of the notice dated 4.12.2012 inclusive of interest and damage coupled with a misc. expense justified to be deposited against the cost. Oral evidence was led before the Court below which became a subject-matter of consideration in the light of the pleadings on record. 4. According to the revisionist he had not fallen in default insofar as the payment of rent is concerned whereas the suit was filed by the landlord/respondent on the premise that there was a clear default in payment of rent. Not only that the payment of rent was disputed by the landlord but a case of clear default claiming higher rent was pleaded against the revisionist in the plaint filed by him before the Court below. Issues came to be framed in the light of pleadings and evidence was accordingly adduced. Not only that the payment of rent was disputed by the landlord but a case of clear default claiming higher rent was pleaded against the revisionist in the plaint filed by him before the Court below. Issues came to be framed in the light of pleadings and evidence was accordingly adduced. Landlord Krishna Pal Yadav was cross-examined by the revisionist-tenant whose deposition reads as under: eSusa vfUre ckj 31 fnlEcj] 2012 dks fnus’k lkgw ls fdjk;k ysus ls bUdkj fd;k FkkA ckn esa xokg us crk;k fd Qjojh ekg dk fdjk;k fnus'k lkgw us ugha fn;k tks tuojh o Qjojh dk fdjk;k FkkA fnukad 08&07&2012 dks nks&rhu yksxks ds lkeus dgk Fkk fd esjh nqdku cu x;h gS vkSj eSa [kkyh djds fdjk;k ns nw¡xkA 5. The aforesaid statement is virtually the foundation of the present revision. Learned counsel for the revisionist raised the following points for consideration. 6. Learned counsel for the revisionist argued that the judgement impugned in the present revision suffers from a manifest error of law; firstly on the ground that the Court below while adjudicating upon the aspect of default in payment of rent has not recorded a clear finding that the tenant defaulted in making payment of rent due upto the period of notice period i.e. 4.1.2013 as is evident from the finding recorded to the effect that the revisionist tenant has failed to pay the entire rent as on the date of issuance of notice. This finding according to the learned counsel for the revisionist does not satisfy the requirement of Section 20 (2) (a) of the Rent Control Act as the shop in question is regulated under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 7. The second submission raised by the learned counsel for the revisionist is that there being a clear admission on the part of the landlord-respondent in terms recorded above, which clearly was an admission to be construed in favour of the revisionist for treating him to be a tenant not in default of payment of rent for the reason that the landlord himself has admitted to have refused to take the rent tendered by him. Once there was a clear admission on the part of the landlord having not accepted the rent tendered by the revisionist during the period of notice on 31.12.2002, the revisionist could not be treated to be a defaulter and consequently, a suit for eviction was not maintainable against him. The submissions on the count of striking off defence and the protection under Section 20 (4) have also been been advanced. 8. Learned counsel for the respondent has vehemently refuted the submissions made by the learned counsel for the revisionist and while making his submissions, he has clearly made out from the material on record that the benefit of Section 20 (4) was not available to the revisionist being a joint owner of a house alongwith his brother. Insofar as the striking off defence under Order XV Rule 5 is concerned, learned counsel for the respondent, drawing attention of the Court to the conduct of the revisionist-tenant, as regards the deposit of rent, has pointed out that the rent admissible according to the revisionist was Rs. 1200/- and the revisionist having failed to establish this ground before the Court below, remained in arrears of rent, as such, the benefit of striking off defence was was not available to him. 9. From the perusal of record it is noticed that the deposit made by the revisionist-tenant in the manner explained in the application filed on 23.5.2013 satisfies the deposit of rent as envisaged under the statutory provision and the deposit of rent as claimed in the notice and adjustment of the amount already paid through money order does in no way prejudice his right to defend and as such the submission made by the learned counsel for the respondent on this ground falls and is not acceptable. The aspect of admission by the respondent to refuse the receipt of rent on 31.12.2012 is crucial to the very continuance of tenancy or termination thereof by notice. The aspect of admission by the respondent to refuse the receipt of rent on 31.12.2012 is crucial to the very continuance of tenancy or termination thereof by notice. From the perusal of issue No. 4 on this aspect of the matter when scrutinized in the light of admission made, it is gathered that the Court below has not dealt with the admission of the landlord to refuse the receipt of rent during the currency of the period of notice on 31.12.2012 at all and no finding on that premise has been recorded one way or the other so as to justify the revisionist having become a defaulter as to the payment of rent. Failure to consider this relevant aspect/evidence, to arrive at any decision for or against the tenant, is a material irregularity which is reflected on the face of record. This irregularity further goes to substantiate the case of the revisionist-defendant on the ground that the Court below has failed to return a finding as regards the default in the payment of rent as on the date of expiry of notice whereas the only finding recorded by the Court below is to the effect that the revisionist-tenant failed to deposit the arrears of rent as on the date of issuance of notice. In support of his submission, learned counsel for the revisionist has relied upon the decisions in Smt. Zohra and others v. IVth A.D.J., Varanasi and others, 2006 (2) ARC 256 ; Gokaran Singh v. Ist Additional District and Sessions Judge, Hardoi and others, 2000 (1) ARC 653 ; Ramji Dayawala & Sons (P.) Ltd. v. Invest Import, AIR 1981 SC 2085 ; and Janardan Pandey v. Ist Additional District Judge, Nainital and others, 1983 ARC 640. 10. Learned counsel for the respondent in order to distinguish the judgements relied upon, has cited the case of Kalyan Singh Chouhan v. C.P. Joshi, 2011(29) LCD 512. 11. 10. Learned counsel for the respondent in order to distinguish the judgements relied upon, has cited the case of Kalyan Singh Chouhan v. C.P. Joshi, 2011(29) LCD 512. 11. Considering the rival submissions and in the light of judgements placed reliance upon, I am of the considered opinion that the Court below while adjudicating upon the issue at hand has failed to consider the material admission of the landlord which ought to have been considered in determination of the real question, namely, whether the revisionist-defendant committed default in the payment of rent until the period of notice and recording a finding that the revisionist was in arrears of rent as on the date of issuance of notice clearly lacks the sanction of statute and such an illegality on the face of the impugned judgement, calls for interference under the revisional jurisdiction of this Court envisaged by virtue of Section 25 of the Provincial Small Cause Courts Act, 1887. 12. The impugned judgement passed by the Court below suffers from a patent illegality and the for the reasons recorded above, the same is hereby set aside and the matter is relegated to the Court below for consideration of all the material after affording opportunity to the parties concerned. The Court below shall accordingly decide the proceedings afresh on the issue involved in which the revisionist undertakes to cooperate. 13. Since the matter is being remanded to the Court below for determination of the rival rights, therefore, until the culmination of proceedings, a rent of Rs. 2500/- per month shall be deposited by the revisionist-tenant before the Court below with effect from Feb. 2016, 14. The revision thus stands allowed in part. No order as to cost. ——————