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2017 DIGILAW 3041 (ALL)

Tilak Raj v. Anil Kumar Singhal

2017-12-22

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard Sri Atul Dayal, learned counsel for the tenant-petitioner and Sri Kiran Kumar Arora, learned counsel for the landlord-respondent no. 1 and perused the record. 2. Present petition has been filed challenging the order dated 31.10.2011 passed by the Judge, Small Causes Court, Meerut in SCC Suit No. 50 of 2009 and the order dated 4.8.2017 passed by the revisional Court in SCC Revision No. 82 of 2011. 3. A suit for rent and eviction in respect of shop no. 47, Sadar Bazar, Meerut Cantt., was allowed, against which the tenant (petitioner herein) preferred a revision, which too was dismissed upholding the order passed by the trial Court. 4. The facts of the case, in brief are that the petitioner is tenant of the shop in question. His father Wajeer Chand was the original tenant and after his death the petitioner along with other proforma respondent inherited the tenancy. The shop is old and is covered by U.P. Act 13 of 1972 (hereinafter referred to as the 'Act'). The suit was filed on the ground that the tenant has committed default in payment of rent and has not paid rent after 19.10.1984. It was stated that even after the direction of the Court in Misc. Case No. 354 of 1984 filed under Section 30(1) of the Act, no amount was paid to the landlord (respondent no. 1 herein) and therefore, tenant is liable for eviction. Written statement was filed by the tenant on the ground that on being refused to accept the rent, the same was being deposited by father of the petitioner Wajeer Chand in Misc. Case No. 354 of 1984 under Section 30(1) of the Act wherein the landlord appeared and filed his objection and stated that he is ready to accept the rent and it is on that basis the aforesaid Misc. Case was decided finally on 2.8.1987. It was contended that the landlord again refused to accept the rent and as such, when the money orders sent by the tenant were returned, he again started depositing the rent in Misc. Case No. 351 of 1989 filed under Section 30(1) of the Act and the rent upto October, 2009 has been deposited and as such, there is no default in depositing the rent. In support of his case, the tenant filed copies of tender of deposit made from 1983 to October, 2009 in Misc. Case No. 351 of 1989 filed under Section 30(1) of the Act and the rent upto October, 2009 has been deposited and as such, there is no default in depositing the rent. In support of his case, the tenant filed copies of tender of deposit made from 1983 to October, 2009 in Misc. Case No. 354 of 1984 and Misc. Case No. 351 of 1980. The other evidence in the shape of affidavits etc. was also filed by the tenant. The suit was decreed by the impugned order dated 31.10.2011 passed by the trial Court, against which revision was preferred by the tenant, which was dismissed by the revisional Court vide judgment and order dated 4.8.2017. 5. Submission of the learned counsel for the tenant-petitioner is that the Court below has failed to consider that the rejection of the application for withdrawal of money filed by the landlord in Misc. Case No. 351 of 1989 vide order dated 15.11.2010 is contrary to record, inasmuch as the tenant has filed copies of the tender of deposit to demonstrate that the rent was duly deposited by him. It was next contended that the Courts below have committed cross mistake in holding that the tenant has committed fraud as he was depositing the rent in non-existing case no. 351 of 1989. Submission is that the Courts below completely failed to consider that unless the tender is passed by the Court concerned, the amount cannot be deposited in the bank with the accountant and as such, there was a valid deposit of rent and it cannot be said that the tenant was at fault even if the application for withdrawal of the amount filed by the landlord was rejected. It was submitted that since the entire tenders of deposit are part of the record clearly mentioning case number as well as the seal of the Court, by no stretch of imagination it can be said that the petitioner has committed any fraud or has not deposited the rent. The deposit was made as per the provisions of General Rule (Civil) and thus, the findings are absolutely wrong and contrary to the record. The deposit was made as per the provisions of General Rule (Civil) and thus, the findings are absolutely wrong and contrary to the record. It was further submitted that in any view of the matter even if there was mistake on the part of the Court or the office, the tenant cannot be blamed for the same, therefore, the finding of default is wholly illegal and contrary to record. It was lastly submitted that the tenant cannot made to suffer for the mistake, if any, committed by the Court or by office and therefore, the impugned orders are liable to be set aside. 6. Per contra, Sri K.K. Arora, learned counsel appearing for the landlord-respondent no. 1 has supported the judgment and orders impugned in this case and submitted that it has come on record that no Misc. Case No. 351 of 1989 is registered in the register of the Court and it is only for this reason the application for withdrawal of the amount filed by the landlord was rejected specifically mentioning the fact that office has reported that no Misc. Case No. 351 of 1989 is registered in the office and as such, the application for withdrawal of the amount cannot be allowed. Submission, therefore, is that once Misc. Case No. 351 of 1989 itself is not registered and it has come on record that last case in the register of the office in the year 1989 is 332 of 1989 whereas the alleged Misc. Case No. 351 of 1989 has not been registered in the office and therefore, the question of making any deposit is not possible. It was also submitted that although the registration of Misc. Case No. 351 of 1989 is categorically denied, however even assuming that any amount was being deposited in the year 1989 in Misc. Case No. 351 of 1989 filed under Section 30(1) of the Act, the same is of no consequence, inasmuch as the tenant has miserably failed to prove that he had offered the rent to the landlord before making deposit under Section 30(1) of the Act. It was submitted that a concurrent finding based on evidence on record has been given by both the Courts below, which does not require interference by this Court under Article 227 of the Constitution of India. 7. I have considered the rival submissions and perused the record. 8. It was submitted that a concurrent finding based on evidence on record has been given by both the Courts below, which does not require interference by this Court under Article 227 of the Constitution of India. 7. I have considered the rival submissions and perused the record. 8. From perusal of record, I find that it is not in dispute that the first Misc. Case No. 354 of 1984 filed under Section 30(1) of the Act became final on 2.8.1987 when the landlord appeared and filed his objection that he is ready and willing to accept the rent. According to the petitioner, when the landlord refused to accept the rent, another Misc. Case No. 351 of 1989 was filed under the same provision however, when an application was filed by the landlord for withdrawal of the amount, the same was dismissed on 15.11.2010 on the ground that no such case is registered in the register of the office and the last case registered in the year 1989 is 332 of 1989. This finding is based on record of the office of the Court, which is being contradicted on the strength of tender receipts filed by the tenant in the Court below and assertion is that such amount can be deposited only after tender is passed by the Court. Once from record it is reflected that Misc. Case No. 351 of 1989 itself was not registered in the office, it is not understandable as to how this tenders could have been passed by the Court. It has not even been suggested that there had been any mistake in providing or mentioning the misc. case number. A faint effort was made before this Court to prove that in fact such Misc. Case No. 351 of 1989 was registered under Section 30 (1) of the Act, record whereof has been weeded out by producing a photocopy of the question answer dated 26.10.2017 allegedly obtained after judgment of the revisional court dated 4.8.2017, which cannot be taken into account at this stage. Once the tenant is insisting that the correct misc. case number was 351 of 1989 and even question-answer has been produced before this Court mentioning the same misc. case number 351 of 1989, the number or the identity of the misc. case wherein such tenders were passed, cannot be assailed any longer and once the record reflects that no such misc. case number was 351 of 1989 and even question-answer has been produced before this Court mentioning the same misc. case number 351 of 1989, the number or the identity of the misc. case wherein such tenders were passed, cannot be assailed any longer and once the record reflects that no such misc. case was registered, the evidence produced before the Court below in the shape of tender receipts was rightly disbelieved by the Court below. Apart from this, in case Misc. Case No. 351 of 1989 was at all registered, the notices must have been issued to the landlord, which, according to the landlord, were never issued and on the contrary the application to withdraw the money deposit in such misc. case was rejected on 15.11.2010 on the ground that no such misc. case is registered in the register of the Court. This evidence is not only based on official record but is also based on judicial order of the Court whereby such application was rejected, which was never put under challenge by the tenant anywhere. 9. Apart from that, there is yet another angle on the issue of default. The tenant is claiming that deposit was made under Section 30 (1) of the Act on the ground that after disposal of the Misc. Case No. 354 of 1984 on 2.8.1987 on the basis of undertaking given by the landlord that he is ready and willing to accept the rent and subsequently the landlord refused to accept the rent, therefore, such deposit was made by filing subsequent Misc. Case No. 351 of 1989 after the landlord has refused to accept money orders sent to the landlord. The trial Court has categorically noticed the stand of the defendants that money order was sent. The trial Court has also noticed that the defendants have not clearly stated the date of filing of the Misc. Case No. 351 of 1989 nor they have filed the copies of the application or order sheet and other documents of the said misc. case to prove proper filing, registration and existence of the said suit. The trial Court has also noticed that the defendants have not filed any money order voucher with the endorsement of refusal of the plaintiff/landlord as contended by the defendants. These findings are not under challenge before this Court. case to prove proper filing, registration and existence of the said suit. The trial Court has also noticed that the defendants have not filed any money order voucher with the endorsement of refusal of the plaintiff/landlord as contended by the defendants. These findings are not under challenge before this Court. The language of Section 30 of the Act itself is clear that such deposit can be made only when alleged landlord refused to accept the rent and law is settled that benefit of deposit made under Section 30(1) of the Act can be extended only when the rent was tendered to the landlord and was refused by him. 10. In such view of the matter, there being no evidence whatsoever to the effect that the rent was ever tendered to the landlord before making any deposit in alleged Misc. Case No. 351 of 1989, even if it is assumed that such case in fact was registered or is in existence or the money was in fact deposited through tenders, no benefit of such deposit made under Section 30 of the Act can be extended to the tenant. 11. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. 12. Present petition lacks merit and is accordingly c. 13. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.9.2018. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-petitioner shall pay damages @ Rs. 2,000/-per month by 07th day of every succeeding month to the landlord and if he refuses to accept, continue to deposit the same in the Court below till 30.9.2018 or till the date he vacates the premises, whichever is earlier and the landlord shall be at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.