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Uttarakhand High Court · body

2017 DIGILAW 600 (UTT)

Rakesh Singh Chaudhary v. Jai Naraya Prahlad Rai

2017-11-13

SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. This is a landlord’s revision under Section 25 of the Provincial Small Cause Courts Act, wherein, he questions the judgment and decree dated 26th November, 2014, by virtue of which, his suit for eviction of the respondent tenant from the tenement, in question, i.e. shop facing East, having two segments, has been dismissed. 2. The basic contention of the learned counsel for the revisionist is that for the purposes of seeking eviction of the tenant from the tenement, in question, he had issued notice under Section 106 of Transfer of the Property Act on 9th April, 2010, wherein, he has submitted that he was in arrears of rent w.e.f. 1st July, 2005 till 31st March, 2010. In the notice, thus, issued, the landlord revisionist contended that the rate of rent which was initially settled between them at the time when the tenancy was created in his favour by his grand father was @ Rs.500/- p.m. and later on when ultimately the landlord revisionist succeeded the ownership, at that stage, the rent of the tenement shop was Rs.1500/- p.m., including the taxes @ 12.5/- which also included in it, the sewage tax. 3. Apparently, in the notice, thus, issued on 9th April, 2010, by the landlord revisionist for terminating the tenancy, he has not claimed any damages for the user of the property w.e.f. date of termination of tenancy as a consequence of receipt of notice dated 9th April, 2010, on expiry of 30 days from the date of receipt of notice i.e. w.e.f. 8th May, 2010. 4. This notice was replied at by the respondent tenant and, while responding to the said notice, he submitted that the rent as claimed by the landlord in the notice dated 9th April, 2010, was not correct and as a matter of fact, his tenancy continues to be on a monthly rent of @ Rs.500/- p.m. He submitted that the tenancy could not have been terminated by virtue of the notice dated 9th April, 2010, which has been wrongfully issued and, hence, he pleaded that the notice dated 9th April, 2010, deserves to be withdrawn. 5. 5. On the contrary, the landlord, feeling that the tenant has not complied with the terms of the notice, initiated the proceedings by instituting a SCC Suit, being SCC Suit No. 4 of 2010, by filing the same before the Judge Small Cause Court, Pauri Garhwal on 31st May, 2010, praying for an arrear of rent of Rs.63,582/- and the damages which he pleaded in the plaint to be amounting to Rs.1,050/- for the period 11th May, 2010 to 31st May, 2010. 6. After the exchange of the pleadings, the Provincial Small Cause Courts framed the following issues for determination :- 1- D;k izfroknh oknh dk iz’uxr nqdku ij 1500@& :i;s izfrekg dh nj ls fdjk;snkj pyk vk jgk gS] tSlk fd okn i= esa dFku fd;k x;k gS] ;fn gkWa rks izHkko \ 2- D;k oknh ds firk dh e`R;q gksus ds le; ls 1500@& :i;s izfrekg fdjk;s dh jkf’k ij izfroknh 12-5 izfr’kr dh nj ls tydj ,oa 3 izfr’kr dh nj ls eydj dk Hkh nsunkj gS] tSlk fd okn i= esa dFku gS] ;fn gkWa rks izHkko \ 3- D;k izfroknh dh fdjk;snkjh uksfVl fnukafdr 9-4-2010 ds tfj;s lekIr dh x;h gS] tSlk fd okn i= esa dFku gS] ;fn gkWa rks izHkko\ 4- D;k oknh] izfroknh ls 63]582@& :i;s fdjk;k o gtkZuk bLrseky dh jkf’k ,oa 15-5 izfr’kr dh nj ls tydj&eydj izkIr djus dk vf/kdkjh gS\ ;fn gkWa izHkko\ 5- D;k oknh] izfroknh ls :0 1732]50 izfrekg gtkZuk bLrseky nkSjku o vk;Unk dCtk izkIr gksus rd izkIr djus dk vf/kdkjh gS\ ;fn gkWa rks izHkko \ 6- D;k izfroknh /kkjk 20¼4½ m0iz0 ,DV la[;k 13 lu~ 1972 dk ykHk izkIr djus dk vf/kdkjh gS\ 7- D;k okn dk ewY;kadu de fd;k x;k gS rFkk U;k; ‘kqYd de vnk dh x;h gS] ;fn gkWa rks izHkko \ 8- D;k oknh }kjk fn;k x;k uksfVl vfof/kd gS] ;fn gkaW rks izHkko \ 9- Okknh fdl vuqrks”k dks ikus dk vf/kdkjh gS \** 7. Primarily, the argument which is now being centered around at the behest of the landlord revisionist is that though during the course of proceeding before the Court below, he has placed reliance on the assessment pertaining to the year 2011, but the assessment as on which, he has placed reliance too had shown the rent was Rs.500/- p.m.. Primarily, the argument which is now being centered around at the behest of the landlord revisionist is that though during the course of proceeding before the Court below, he has placed reliance on the assessment pertaining to the year 2011, but the assessment as on which, he has placed reliance too had shown the rent was Rs.500/- p.m.. Consequent thereto, the learned Trial Court has held that the landlord has failed to establish that the rent was @ Rs.1500/- p.m., accordingly, issue pertaining to rate of rent was decided against landlord. 8. Confining his argument from the view point that there has been a non compliance of the provision as contained under Section 20 (4) of the Act, what he wanted to submit that on the first date of hearing, i.e. on date of framing of point of determination, the tenant after putting in appearance has not deposited the entire rent and arrears as claimed by him in the plaint including damages of user of property after expiring of period in the notice terminating the tenancy in the notice dated 9th April, 2010 and, as such, due to non compliance of Sub-section (4) of Section 20 of the Act, the applicability of Act No. 13 of 1972 which is admitted by both the parties would consequently result into a decree of eviction as against the respondent from the tenement in question. 9. In response to the arguments of learned counsel for the revisionist the learned counsel for the respondent submitted that no decree of eviction could be passed against him because on the first date of hearing, i.e. 13th July, 2010, he had appeared before the Court and on the first date of hearing, he has deposited the entire rent including the interest and the arrears towards the water and sewage taxes, as contemplated under Sub-section (4) of Section 20 of the Act, and as such, as a matter of act, on 13th July, 2010, there was no amount was due to be paid as claimed by the landlord revisionist in his notice dated 9th April, 2010, or as claimed in the plaint. 10. To the argument as extended by the learned counsel for the respondent to the effect that the provisions of Sub5 section (4) of Section 20 of the Act was complied with in its totality. 10. To the argument as extended by the learned counsel for the respondent to the effect that the provisions of Sub5 section (4) of Section 20 of the Act was complied with in its totality. The learned counsel for the revisionist submitted that for the reason, that the damages as contemplated for the use of the premises under Sub-section (4) of Section 20, after the expiry of the notice period was not paid, consequently, the tenant deserves to be evicted from the tenement, in question. 11. The learned counsel for the tenant respondent submitted that he was not liable to pay any ‘damages’ for the reasons that the damages was not the basis of the notice dated 9th April, 2009, as such, he was not liable to comply with the said condition of payment of damages. Provisions of Sub-section (4) of Section 20 reads as under :- “(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 of [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 thereon 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 the same city, municipality, notified area or town area. [Explanation-For the purposes of this sub-section (a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression "cost of the suit" includes one-half of the amount of Counsel's fee taxable for a contested suit.]” 12. [Explanation-For the purposes of this sub-section (a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression "cost of the suit" includes one-half of the amount of Counsel's fee taxable for a contested suit.]” 12. On scrutiny of Sub-section (4) of Section 20 of the Act, the liability of the tenant to pay the arrears of rent together with interest @ 9% and other dues includes in it damages because the Legislature has used the word unconditionally pays the rent and “damages” for the use and occupation of the building due from him from the date of termination of the tenancy. Meaning thereby, damage would be payable only for the period after the date given in the notice determining the tenancy and not before. 13. It was a clear intention of the Legislature that it was on the expiry of 30 days period from the date of notice issued under the Transfer of Property Act, if the tenant overstays in the accommodation let out to him after 30 days period, then by implication of Sub-section (4) of Section 20, he is liable to pay damages, irrespective of the fact that whether the damages constituted as to be the part of demand raised in the notice or not, as quite logically, the computation of damages would be only after expiry of period of eviction in the notice and including the period till he appears in the suit and deposit the amount. 14. Since as per law, the damages are contemplated only after determination of tenancy, it would be only after expiry of 30 days period given in the notice. Hence, it would be mandatory to claim damages in the notice as by that time the determination of tenancy does not take place, hence, not raising demand of damages in the notice will not make the notice bad, because only when the condition of determination of tenancy as provided in the notice expires, than only the occasion arises for filing of suit or for claiming the damages. Thus the argument of learned counsel cannot be sustained. 15. Thus the argument of learned counsel cannot be sustained. 15. Since on the first date of hearing, i.e. 13th July, 2010, apparently after putting in appearance, no doubt, according to the pleadings raised and evidence adduced by the revisionist, he has remitted the rent interest and other dues as mentioned in Sub-section (4) of Section 20 of the Act, but, admittedly the damages was not remitted by him, thus, the provision of Section 20 (4) was not complied in its totality. Meaning thereby, there was a clear violation of the provisions contained under Sub-section (4) of Section 20 of the Act. 16. From that limited view point, itself, once the tenant has failed to comply with the provisions contained under Sub-section (4) of Section 20 of the Act in its totality and, admittedly, as per the evidence, no damages for the period of overstay after the expiry of the period given in the notice, the respondent tenant was liable to pay damages, which as per the evidence was not paid. 17. Even according sub Section (4) of Section 20 of Act No. 13 of 1972 which contemplates a deposit to be made on the first date of hearing, this deposit includes the arrears of rent, interests and damages. Since the aforesaid deposits are to be made on the first date of hearing which absolutely be after the filing of the suit which would be initiated due to noncompliance of the notice under Section 106 of Transfer of Properties Act. Meaning thereby, on a simple interpretation, the reference and the purpose of the damages accrues only when the suit itself is instituted and, thus, the incorporation of relief of damage would only be relevant and arises at a stage when the suit itself is filed because the notices under Section 106 of the Transfer of Property Act has only an intent of termination of tenancy on the expiry of the period of 30 days. As a matter of fact, the consequence of Subsection (4) of Section 20 will only come into play when the period given in the notice to vacate the premise expires. Hence, reference of a claim for damage in the notice is irrelevant. 18. Thus, the learned Trial Court ought to have considered the impact of non remittance of damages on the date of first appearance. Hence, reference of a claim for damage in the notice is irrelevant. 18. Thus, the learned Trial Court ought to have considered the impact of non remittance of damages on the date of first appearance. Having not done so, I feel that the impugned judgment is bad and deserves to be quashed. 19. Consequently, the tenant is directed to vacate the premises within a period of six months from today. 20. The revision stands allowed. 21. No order as to cost.