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2016 DIGILAW 3856 (ALL)

Iftikar Hussain v. Sharif Ahmad

2016-11-30

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra,J. Heard Sri Gulrez Khan, learned counsel for the petitioner and Sri Lalit Kumar for the contesting respondent. 2. This writ petition arises out of a SCC suit for eviction, arrears of rent and damages, filed by the respondent. 3. The suit was filed on the allegation that the petitioner was a tenant and Rs.100/- per month and respondent is the landlord. He was also supposed to pay 50% house tax and 50% water tax. The tenant had not paid rent from 01.04.2009. He has also made material alternation in the shop in question. The walls of the shop had been cut to install almirah as a result of which, the wall had developed cracks. The tenancy, which was from month June 2012 had been terminated. Despite service of the notice, the tenant failed to furnish the arrears of rent nor vacated the premises. 4. The suit was contested by the petitioner on the ground that he was an extremely old tenant. It was denied that he was liable to pay either house tax or water tax. It was specifically stated that no material alteration has been made by him. The rent from 01.05.2005 to 31.03.2009 had been paid and a receipt in this regard obtained from 1st April 2009 to the year 2012, the rent had been paid but no receipt in this regard was issued on the ground that the receipt book was being printed. In a Civil suit instituted by the petitioner-tenant, the landlord had admitted the tenancy. 5. The trial Court found that there was a default in payment of rent and that material alternation had been made. It accordingly decreed the suit. The consequential revision has also been dismissed. Hence this writ petition. 6. Counsel for the petitioner submitted that on 22.05.2015, an application was filed for adducing additional evidence, at the revisional stage. This application was allowed and the additional evidence was taken on record. The revisional Court has dismissed the revision without adverting to the additional evidence filed by the petitioner. 7. The second submission made is that the plea of benefit of Section 20(4) though raised was not considered, while passing the impugned revisional order. The petitioner is entitled to this benefit. 8. It was next submitted that there was material alteration that has been made is inconsequential. This would not amount to a material alteration. 7. The second submission made is that the plea of benefit of Section 20(4) though raised was not considered, while passing the impugned revisional order. The petitioner is entitled to this benefit. 8. It was next submitted that there was material alteration that has been made is inconsequential. This would not amount to a material alteration. It is lastly submitted that in any case by the notice dated 15.05.2012, the tenancy had not been terminated. 9. At the time of hearing, a supplementary affidavit was filed annexing thereto various documents. The first document is an application dated 08.01.2013 bearing No.21-Ga for permission to deposit the rent for the month of May 2012 to January 2013. It is submitted that this application was allowed and the petitioner, thereafter, deposited Rs.900/- as rent, prior to the hearing and therefore, he was entitled to the benefit of sub Section 20(4) of the Rent Control Act. 10. It is also contended on the basis of the documents filed with the supplementary affidavit, that the entire decreetal amount had been deposited by the petitioner, upon the revision being entertained and an interim order being granted in his favour. Various other receipts showing the deposit of rent during the pendency of the revision have also been filed. 11. It is further submitted that the notice dated 15.05.2012 did not terminate the tenancy of the petitioner as required by Section 20 (2) of the Act. It was a notice sent as per the provisions of Section 21 (1) (a) of U.P. Act No.13 of 1972 and that the suit could not be filed without service of notice under Section 106 of the Transfer of Property Act. On the basis of the same notice, the instant suit was filed as also a release application, under Section 21(1) (a) of the U.P. Act no.13 of 1972, setting up the need of the son of the landlord. 12. In rebuttal, counsel for the respondent submitted that no deposit was made by the tenant on the first date of hearing, which was 06.11.2012. The deposit made on 23.01.2013, was long after the first date of hearing and therefore, the same would not entitle the petitioner to the benefit of Section 20(4) of the U.P. Act No.13 of 1972. 13. I have considered the submissions made by the parties and have perused the record. 14. The deposit made on 23.01.2013, was long after the first date of hearing and therefore, the same would not entitle the petitioner to the benefit of Section 20(4) of the U.P. Act No.13 of 1972. 13. I have considered the submissions made by the parties and have perused the record. 14. As regards, the contention that the petitioner was entitled to the benefit of Section 20(4) of the Rent Control Act, it would be relevant to note that no such argument was raised before the trial Court. This categorical observation is to be found in the order of the trial Court. 15. Even otherwise, this submission is how being made since certain deposits were permitted to be made by the petitioner on 24.01.2013. However, counsel for the petitioner has not able to rebut the allegation of counsel for the respondent that the first date of hearing was 06.11.2012. The application for making the deposit was filed on 09.1.2013. The deposit therefore, was not made on the first date of hearing and in my considered opinion, there being non compliance of the requirement of Section 20(4), the said deposit will not confer any benefit upon the petitioner. 16. Besides, this tender is for the period from May 2012 to Janaury 2013. The suit was filed for the arrears of rent from April 2009 to 2012. It is, therefore, established on record that the entire arrears of rent and other amounts required to be deposited on the date of first hearing, was in fact not deposited. Besides, this deposit did not contain the interest at the rate of 9% per annum or the cost of the suits. All other tender receipts, which have been filed along with the supplementary affidavit, pertain to the period during which, the revision was pending. The petitioner therefore, is not entitled to the benefit of Section 20(4) of the Act. 17. The second submission that the additional evidence which was taken on record and was not considered while passing the impugned revisional order. The additional evidence filed, does not contained any receipt evidencing payment of any rent for the period from 01.04.2009 till the filing of the suit. The additional evidence, therefore, was wholly irrelevant and its non consideration, does not in any manner, vitiate the impugned revisional order. 18. The additional evidence filed, does not contained any receipt evidencing payment of any rent for the period from 01.04.2009 till the filing of the suit. The additional evidence, therefore, was wholly irrelevant and its non consideration, does not in any manner, vitiate the impugned revisional order. 18. The submission that by the notice dated 15.05.2012, the tenancy of the petitioner was not terminated, also cannot be accepted. I have perused the notice, copy whereof is available on record and it is revealed that by this notice, the tenancy of the petitioner was terminated. 19. Besides this argument being raised before this court does not appear to have been raised before the Courts below. The petitioner is therefore, raising an altogether new plea, which cannot be considered for the first time in this writ petition. 20. The findings returned by the trial Court on the question of material alternation is a finding of fact. Learned counsel for the petitioner has not been able to point out any perversity in the said finding. 21. Besides, it would be relevant to note that the petitioner, in his oral testimony, had categorically stated that he had paid the rent from April 2009 till April 2012 but had not been given a receipt for the same. This statement and the case in this regard was duly considered by the Courts below and has not been accepted. Moreover, during his oral testimony, the petitioner had categorically stated that he had not deposited any rent in Court. The finding therefore, on the question of default also cannot be said to be vitiated. 22. In view of the above discussion, the petitioner has not been able to make out a case in his favour. 23. The writ petition is therefore, dismissed.