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2017 DIGILAW 1475 (ALL)

A. R. SHARMA v. RAMESHWAR AGARWAL

2017-06-01

ASHOK KUMAR

body2017
JUDGMENT Hon’ble Ashok Kumar, J.—Heard Sri A.K. Goyal, learned counsel for the revisionist. 2. The present revision has been filed under Section 25 of the Provincial Small Causes Courts Act, 1887. 3. By means of the present revision the revisionist, who is the tenant of shop No. 2, Rameshwar Bhawan Jamuna Bridge, Station Road Agra (Property No. 9/97-B), has challenged the order dated 2.2.1993 passed by Additional District Judge-12th, Agra in S.C.C. Suit No. 22 of 1986 (Sri Rameshwar Agrawal v. Akshay Ram Sharma). 4. An interim order has been passed by this Court on 12.3.1993 by which this Court has stayed the execution of the decree dated 2.2.1993 passed by the 12th Additional District Judge, Agra. 5. Sri B.P. Agrawal, learned counsel has put appearance on behalf of the opposite party, the owner of the property in question. Sri B.P. Agrawal, Advocate has died and this fact has been brought to the notice of this Court and therefore this Court has directed the counsel for the revisionist to take the steps and in pursuance thereof the counsel for the revisionist has taken the steps and notices are issued through registered post. 6. A Delay Condonation Application No. 287274 of 2009 alongwith Abatement Application and Substitution Application has been filed on which vide order dated 23.10.2010 the notices had been issued to the respondent No. 1/1 by registered post AD. The office report indicates that neither undelivered cover nor dak has been returned back after service of notice as per record. This Court vide order dated 26.10.2010 has been pleased to order to await return of notice by fixing the date on 22nd November 2010. Again vide order dated 29.11.2010 this Court directed to the counsel for the revisionist to serve the Dasti upon the opposite party and to take the steps accordingly within a week. Counsel for the revisionist in compliance of the said order has taken the steps and accordingly, the Dasti notices were sent. 7. The office report dated 24.2.1011 indicates that the notice had been issued to respondent No. 1/1 which are returned undelivered cover with report of ‘without address’. It further refer that the Dasti notices were handed over by the clerk of the revisionist’s to the counsel for the respondent No. 1/1 and affidavit of service has been filed. 8. 7. The office report dated 24.2.1011 indicates that the notice had been issued to respondent No. 1/1 which are returned undelivered cover with report of ‘without address’. It further refer that the Dasti notices were handed over by the clerk of the revisionist’s to the counsel for the respondent No. 1/1 and affidavit of service has been filed. 8. Order dated 25.2.2011 indicates that this Court has noticed that the affidavit of service has been filed by the counsel for the revisionist, however, he has been permitted to make service of notice by publication in newspapers and for the said publication one month’s time has been allowed. Complying the said order dated 25.2.2011 the Dasti notice was handed over to the clerk of the revisionist’s counsel for publication in the daily newspaper “Amar Ujala” fixing 28.3.2011 for appearance of respondent No. 1/1. 9. An affidavit of service has been filed by the counsel for the revisionist. This Court has again passed an order on 4.7.2012 which is quoted herein below : “List revised. Sri A.K. Goyal, learned counsel for the appellant is present. No one is present on behalf of respondents. By order dated 25.2.2011, the revisionist was permitted to serve respondents by publication in a newspaper having wide circulation in Agra. Pursuant to the said order, an affidavit of service has been filed annexing therewith a copy of the publication of the notice, published in Amar Ujala (Agra). In view of the above said fact, service is deemed sufficient on the respondents. Office to assign a number to the Civil Misc. (Substitution) Application of 2009 which is at page 20 of the application dated 30.10.2009 and to list the case in the next cause list.” 10. In view of the aforesaid, the service upon the opposite party has been found deemed sufficient service on the respondent. 11. This case is listed today and the counsel for the revisionist Sri A.K. Goyal is present. However, neither any appearance slip has been filed nor anyone is present on behalf of the opposite parties. 12. Since this revision is filed in the year 1993 i.e. more than 24 years has expired, there is no reason to keep such an old matter pending for indefinite period, hence this Court proceeds. 13. However, neither any appearance slip has been filed nor anyone is present on behalf of the opposite parties. 12. Since this revision is filed in the year 1993 i.e. more than 24 years has expired, there is no reason to keep such an old matter pending for indefinite period, hence this Court proceeds. 13. Having heard learned counsel for the revisionist and considering the judgment of the Court below this Court is of the opinion that the impugned judgment challenged by means of the present revision cannot sustain. 14. Brief facts of the present case are that the revisionist is tenant of shop in dispute for over 12 years (since 1993). The plaintiff respondent is the owner and the landlord of shop in dispute. The revisionist has claimed that the landlord resides at Bombay as such his property at Agra was being looked after by one of the Karinda named Ramesh Chandra. The said Ramesh Chandra has let out the shop to the revisionist on behalf of the landlord at the rate of Rs. 60/- per month in the year 1981. It is submitted that the revisionist used to pay rent to the Karinda who has been authorised by the landlord and the said Ramesh Chandra used to issue rental receipt in lieu thereof. 15. The rent has been enhanced from Rs. 60/- to Rs. 75/- per month. It is further claimed by the revisionist that there was no formal rent agreement is executed between the landlord and tenant (revisionist) either at the inspection or the tenancy or thereafter. It is claimed by the revisionist that the rent has been regularly paid and on 28.1.1985 the revisionist has paid rent for the period September 1984 to December 1984. It is submitted by the revisionist that since the revisionist being the illiterate person and taking the advantage of the said, the plaintiff instead of September to December 1984 mentioned in the rent receipt of the revisionist as September 1981 to December 1981, whereas the rent for the said period in between September 1981 to December 1981 had already been paid long back to the landlord in due course. It is further claimed that even for the subsequent period namely January 1982 onward the rent was regularly paid and the receipt for the said payment was issued by the plaintiff which has been filed alongwith an affidavit being 43-Ka/II. 16. It is further claimed that even for the subsequent period namely January 1982 onward the rent was regularly paid and the receipt for the said payment was issued by the plaintiff which has been filed alongwith an affidavit being 43-Ka/II. 16. It is submitted by the revisionist that the landlord in fact wanted to evict the revisionist from his tenancy and accordingly he filed a release application under Section 23(1-A) of U.P. Act 13 of 1972, which was rejected by the Prescribed Authority, Agra. 17. In order to harass the revisionist-tenant, the landlord, the plaintiff sent a notice dated 18.9.1985 claiming rent for the period 1.9.1983 to 31.8.1985 alongwith entire rent, as claimed, which was paid by the tenant. 18. Due reply has been given by the revisionist to the aforesaid notice and in the said reply it has been categorically stated that no amount was due against the revisionist since the entire amount has already been paid up to the period August 1984. 19. The plaintiff was not satisfied with the reply as such has filed J.S.C.C. Suit No. 24 of 1986 against the revisionist in which the landlord has claimed the arrears of rent and ejectment. 20. This suit has been contested by the revisionist as such a written statement has been filed in which it has been stated that the rate of electricity charge was Rs. 18/- and was not included in the rent. It is further stated that no rent was due against the tenant and rent up to the period December 1984 had been paid by the revisionist (tenant) on 28.1.1985 but the plaintiff had incorrectly shown the period of rent as September 1981 to December 1981 in place of September 1984 to December 1984. 21. The claim of the tenant, the revisionist is that, that the entire rent had already been paid yet as a matter of abundant precaution he on the first date of hearing has deposited a amount of Rs. 4864/- including the rent, cost of suit etc. vide tender dated 1.9.1986. The amount of rent etc. for subsequent month was already deposited in Court and the rent up to the period February 1993 stands deposited before the Court below. 22. Both the parties led oral as well as documentary evidence before the Court below. 23. 4864/- including the rent, cost of suit etc. vide tender dated 1.9.1986. The amount of rent etc. for subsequent month was already deposited in Court and the rent up to the period February 1993 stands deposited before the Court below. 22. Both the parties led oral as well as documentary evidence before the Court below. 23. The tenant beside being examined on oath filed the documentary evidence, the entire receipts, money order, coupons, house assessment receipt, notices and the various tenders during which the rent was deposited alongwith such other relevant documents. 24. The opposite party landlord has also filed the application under Order XV, Rule 5 C.P.C. for striking off the defence of the tenant. Order XV, C.P.C. refers the settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule 5 provides the arrears, the amount and the striking off the issues. For the convenience Rule 5 of Order XV, C.P.C. is quoted herein below: “Striking off defence on failure to deposit admitted rent, etc.— (1) In any suit by a lessor for the eviction of a leasee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making. the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject k the provisions of sub-rule (2), strike off his defence. (2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 day, of the first bearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 day, of the first bearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the ‘’effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.” 25. This application filed by the plaintiff (landlord) under Order XV, Rule 5 C.P.C. for striking off the defence of the tenant has been rejected by the 5th Additional District Judge, Agra who has passed the formal order on 7.10.1988, which is quoted herein below : “Case called out. Sri P.C. Agarwal, Advocate for plaintiff and Sri S.C. Gupta, Advocate for defendant-tenant present. Heard arguments on 12A and objections 16C. Application 12A has been moved by the plaintiff under Order XV Rule 5, C.P.C., to strike off the defence of the defendant-tenant. In this connection the crucial point is that tenant is under a statutory duty to deposit the admitted rent which has fallen due on the date of first hearing and also to deposit admitted rent from month to month in the Court. In case the defendant-tenant fails to comply with these directions of law is defence can be stuck off. In this case the details of the deposit have been shown in the objections 16C, Total Rs. 3164/- is admitted as rent due from September, 1983, till July, 1986. The monthly rent at the rate of Rs. 75/- per month is to be deposited by the tenant. Tender on record shows that on 1.9.1986 Rs. 4864/- were deposited in the Court. In this way, compliance with the statutory provisions of Order XV Rule Rule 5, C.P.C., has been made and as such there is no justification to strike off the defence. A dispute has arisen whether the electricity charges due on consumption of electricity are included in the rent of Rs. 4864/- were deposited in the Court. In this way, compliance with the statutory provisions of Order XV Rule Rule 5, C.P.C., has been made and as such there is no justification to strike off the defence. A dispute has arisen whether the electricity charges due on consumption of electricity are included in the rent of Rs. 75/- per month or notice to be thrashed out after evidence of the parties and this question is not to be decided this stage under Order XV Rule 5 C.P.C. Application 12A under Order XV Rule 5 C.P.C. carries no force and it is hereby rejected.” W.S. is already on record. Fixed on 15.11.88 for final hearing.” 26. From the bare reading of the aforesaid order rejecting the application under Order XV, Rule 5 the learned Judge has clearly observed that a dispute has arisen as to whether the electricity charges due on consumption of actual electricity are included in the rent (rent enhance from Rs. 60/- to Rs. 75/-) per month or not. The Court below has decided this issue by holding that after taking consideration of the evidence of the respective parties the said issue is not to be decided at this stage and accordingly, the application 12-A moved by the plaintiff under Order XV, Rule 5 C.P.C. has been rejected. 27. The claim of the revisionist is that, that after such a finding recorded by the Court below it is clear from the record that the revisionist, the tenant was not in arrears of rent and in any case was entitled to protection of Section 20(4) of U.P. Act 13 of 1972, since the entire amount claimed by the landlord in the suit alongwith cost etc. had been deposited by the revisionist in the Court on the first date of the hearing. had been deposited by the revisionist in the Court on the first date of the hearing. There are six issues framed by the Court below which are quoted herein below: 1- D;k izfroknh fdjk;s ds vfrfjDr fctyh miHkksx ds :i esa izfrekg 36@& :i;s vnk djus dk mRrjnk;h gS\ 2- D;k izfroknh fdjk;s ds vfrfjDr tydj dh Hkh vnk;xh djus dk mRrjnk;h gS\ 3- D;k izfroknh us lEiw.kZ fdjk;s dh vnk;xh dj nh gS vkSj flrEcj 1983 ls vkxs rd dk dksbZ Hkh fdjk;k cdk;k ugha gS\ 4- D;k oknh ds }kjk Hksth x;h uksfVl voS/k vkSj vekU; gS\ 5- D;k okn dk ewY;kadu vf/kd fd;k x;k gS\ 6- ;fn dksbZ vuqrks"k gS rks oknh fdls ikus dk vf/kdkjh gS\ 28. Issue No. 1 has been dealt with by the Court below and has been decided in favour of the revisionist, whereas issue Nos. 2 and 3 are decided by the Court below against the revisionist. 29. The counsel for the revisionist Sri A.K. Goyal has submitted that while deciding the issue No. 6 the Court below has passed an illegal order as such has not taken into consideration the evidence which has been adduced before the learned Judge or the submissions and the statement made on behalf of the revisionist. Learned counsel for the revisionist submitted that once the revisionist has filed the entire evidence and as such has complied with the provisions of Section 20(4) of U.P. Act No. 13 of 1972 the impugned judgment of the Court below cannot sustain in the eye of law as the learned Judge has completely overlooked the compliance of the provisions of Section 20(4) of U.P. Act No. 13 of 1972, which clearly provides the protection to the tenant. Section 20(4) of U.P. Act No. 13 of 1972 is quoted herein below : “(4) In any suit for eviction on the ground mentioned in clause (a) of sub-Section (2), if at the first hearing of the suit the tenant unconditionally pays or [tenders to the landlord or deposits in Court] the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest hereon at the rate of nine per cent per annum and the landlord’s costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground : Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in he same city, municipality, notified area or town area.” 30. The counsel for the revisionist has submitted that since the learned Judge has not considered the evidence and the deposits, according to the revisionist the same is deposited in excess, that is the amount of rent claimed alongwith the cost etc. that too on the first date of hearing as such the revisionist was entitled to protection of Section 20(4) of U.P. Act No. 13 of 1972. 31. Learned counsel for the revisionist has submitted that since the Court below has not recorded any finding on the aforesaid mandatory provisions of law as such has passed the wrong impugned order hence the same deserves to be set aside. 32. After hearing the counsel for the revisionist and after perusal of the entire material placed before this Court and the impugned judgment of the Court below it is crystal clear that while deciding the issue No. 6 the learned Judge has not taken into consideration either the evidence or the application filed by the revision under Section 20(4) of U.P. Act No. 13 of 1972. 33. 33. Since no one has put appearance even after the proper steps for the service is taken, this Court has no option but to pass an appropriate order. 34. After considering the entire evidence and the submissions of learned counsel for the revisionist, in my opinion, this revision is liable to be allowed and the order impugned dated 2.2.1993 is liable to be set aside as the Court below completely overlooked the provisions of Section 20(4) of U.P. Act No. 13 of 1972. The impugned order dated 2.2.1993 is set aside. Accordingly, the revision is allowed.