Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2665 (ALL)

Maqbool Ahmad v. Islamullah

2017-11-17

ANJANI KUMAR MISHRA

body2017
JUDGMENT : 1. Heard Shri Lakshmi Kant Trigunait for the petitioner and Shri Pankaj Misra for the sole respondent. 2. This is a tenant's petition arising out of an SCC suit for arrears of rent and eviction, filed by the respondent. The suit has been decreed by the trial court and the consequential revision under Section 25 of the Provincial Small Causes Courts Act has been dismissed. Hence this petition, challenging the aforesaid two orders. 3. The facts of the case briefly stated are that the plaintiff purchased the property in question, namely, 11-C/42, Yakoot Ganj, Allahabad, by means of a registered sale-deed dated 10.5.2004. This property included the shop, which is subject matter of the instant writ petition. The petitioner is running a saloon in the shop in question having dimensions of 6ft × 15ft. Despite the notice dated 16.4.2007, sent to the petitioner, neither the arrears were paid nor the shop in question was vacated and, therefore, the suit. 4. There is no dispute that the shop in question comes within the purview of UP Act No. 13 of 1972. 5. The case of the petitioner is that the entire rent had been paid by him but no receipts were issued on the pretext that the receipt book was to be printed and that once it was printed, the receipts would be issued. The entire amount had been deposited on the first date of hearing and he was entitled to the benefit of Section 20(4) of UP Act No. 13 of 1972. A decree for eviction could not have been passed. 6. The trial court framed as many as four issues. One of which was regarding the rate of rent of the accommodation in question. The land-lord claimed the rent to be Rs. 180/-per month while the contention of petitioner-tenant was that it was only Rs. 100/- per month. 7. On this issue, the trial court ruled that the plaintiff had failed to prove the rent to be Rs. 180/-per month and accepted the defendant's case that the rent was only Rs. 100/- per month. 8. The defence of the petitioner that there was no default, was not accepted. 9. The trial court also found that the deposit of Rs. 6,000/-made by the petitioner did not include the water charges, payable by the tenant and, therefore, the deposit found to be deficient. 100/- per month. 8. The defence of the petitioner that there was no default, was not accepted. 9. The trial court also found that the deposit of Rs. 6,000/-made by the petitioner did not include the water charges, payable by the tenant and, therefore, the deposit found to be deficient. The petitioner was, accordingly, found not entitled to the protection of Section 20 (4) of the Act. 10. Contention of counsel for the petitioner is that the tenant was never afforded any opportunity to adduce evidence and his oral testimony was not recorded before the trial court. 11. Second submission is that since the plaintiff-opposite party's case that the rent of the accommodation in question was Rs. 180/-per month was not accepted, the courts below was not justified in holding that the petitioner was a defaulter. 12. The finding of the trial court regarding service of notice has also been assailed on the ground that the registered notice, sent at the address of the shop in question was never received. Therefore, the order, holding service to be sufficient, is vitiated. 13. On one question of default, it has been submitted that the exact amount of water charges, payable by the petitioner, has not been calculated by the trial court. 14. It is lastly submitted that the trial court wrongly observed that the petitioner-defendant had admitted in his evidence that the possession of the accommodation in question was being handed over to the landlord-respondent after accepting compensation. Since, the petitioner never deposed before the trial court, this finding is entirely perverse and for this reason alone, the matter needs to be remanded back to the trial court. 15. Shri Pankaj Misra, appearing for the landlord-respondent, has submitted that it has been recorded by the revisional court that the issue regarding service of notice upon the petitioner was not pressed at the revisional stage and this is categorically recorded in the order and the revisional authority, at Page 48 of the paper-book (internal Page 3 of the certified copy of the revisional order). 16. On the question that the water charges, payable by the petitioner were not calculated by the courts below, he has submitted that the rate, at which water tax payable, is specified under Section 7 of the Act. Therefore, even if the exact amount payable has not been specified by the courts below, it not vitiate the orders. 17. 16. On the question that the water charges, payable by the petitioner were not calculated by the courts below, he has submitted that the rate, at which water tax payable, is specified under Section 7 of the Act. Therefore, even if the exact amount payable has not been specified by the courts below, it not vitiate the orders. 17. He has lastly submitted that the impugned order is concluded by concurrent finding of the fact, which are not upon to challenge in a writ petition. 18. I have considered the submissions made by counsels for the parties and have perused the record. 19. The first submission that the tenant-petitioner never deposed before the trial court is a contention without substance. It was neither the duty of the court nor that of the landlord-respondent to produce the petitioner for recording his oral testimony. The petitioner was the defendant in the suit and it was his duty to appear and depose to establish his defence. In case, he failed to do so, he cannot derive any benefit of such default. 20. I also do not find any substance in the submission that since the rate of rent, set up by the plaintif, was not accepted by the courts below, a finding that the tenant was in default could not be recorded. The finding of default is a finding independent of the rate of rent and has been returned accepting the rate of rent to be Rs. 100/-per month as was the petitioner's case. Once, the courts came to the conclusion that the rent of the accommodation in question was Rs. 100/-per month, it was for the petitioner to establish that the rent was paid. However, the petitioner has failed to establish that he had paid the rent @ Rs. 100/-per month. 21. As regards, the deposit made on the first date of hearing and the entitlement of the petitioner to the protection of Section 20 (4) of the Act, the finding is categorical. The water charges, specified under the Act were never deposited on the first date of hearing. Accordingly, the petitioner held, not entitled to the said protection. 22. I find no illegality in the impugned orders in this regard. 23. The water charges, specified under the Act were never deposited on the first date of hearing. Accordingly, the petitioner held, not entitled to the said protection. 22. I find no illegality in the impugned orders in this regard. 23. Perusal of the order, passed by the revisional court, reveals that it has been observed therein that nothing was submitted before the revisional court as regards nonreceipt of the notice sent to the petitioner. Having not pressed this issue before the revisional court, it is now not open for the petitioner to raise this plea afresh in a writ petition. 24. Since, the courts below have found that a valid notice was served upon the petitioner and that he was a defaulter not having paid the rent and also because a complete deposit as required under law for entitlement to the benefit of Section 20 (2) of the Act, was not made, which findings are not found to be vitiated in any manner the orders impugned call for no interference. 25. The additional observation made in the revisional court's order that the petitioner in his evidence had admitted that he was going to vacate the premises for accepting compensation, even if, perverse will not vitiate the other two findings, which are sufficient for passing an order of eviction as has been done in the instant case. 26. In my considered opinion, this observation is at best obiter as the outcome of the case will not be materially affected, even if, this finding/observation is to be set aside. 27. I also do not find any substance in the submission of counsel for the petitioner that the fault had been claimed from the date of the sale-deed in favour of the respondent for passing an order of eviction on the ground of default, the period of default specified is only four months. The default set up by the respondent was from 10.5.2004, the date of sale-deed in favour of the respondent till 31.3.2007. 28. In view of the foregoing discussion and since, the submissions of counsel for the petitioner have been repeated that the instant writ petition is liable to be dismissed. 29. The default set up by the respondent was from 10.5.2004, the date of sale-deed in favour of the respondent till 31.3.2007. 28. In view of the foregoing discussion and since, the submissions of counsel for the petitioner have been repeated that the instant writ petition is liable to be dismissed. 29. Before parting this case, it would be relevant to consider the additional argument of counsel for the petitioner that in case, the writ petition is held liable to be dismissed, he may be granted some reasonable time to vacate the accommodation in question. 30. In reply to this submission, counsel for the respondent has submitted that the writ petition was filed in the year 2013. It has remained pending for five years without any interim order in favour of the petitioner. Yet, he has neither vacated the premises nor deposited any rent for this period. Therefore, there is no justification for granting him any further time to vacate the accommodation in question. 31. Having considered the submissions made, this writ petition is dismissed with the observation that the petitioner is granted till 31 January, 2018, to vacate the shop in question, subject to this furnishing the usual undertaking before the trial court. Along with undertaking, the petitioner shall deposit the entire decreetal amount as also the rent/damages up-to-date and the damages for the period granted to retain the accommodation in question. 32. In case, the entire amount is not deposited and the undertaking along with it not furnished within ten days from today, the petitioner shall not be entitled to any benefit under this order and the impugned decree, would be liable to be executed, forthwith.