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2017 DIGILAW 639 (ALL)

HARI SHANKAR v. OM PRAKASH (SINCE DECEASED)

2017-02-27

ASHWANI KUMAR MISHRA

body2017
JUDGMENT : ASHWANI KUMAR MISHRA, J. 1. This is a tenant's petition arising out of suit filed for eviction and for recovery of arrears of rent. Petitioner tenant contends that he had deposited entire amount claimed by the landlord towards rent etc. on the date of first hearing of suit before the court concerned, and therefore, denial of protection under Section 20 (4) of the U.P. Act No.13 of 1972 is bad in law. It is also contended that only temporary constructions were raised, and even otherwise provisions of Section 20(2)(c) of the Act were not attracted, and decree for eviction passed by the courts below are unsustainable. 2. Records reveal that Small Causes Suit No.76 of 2001 was filed by deceased Om Prakash for eviction and for recovery of arrears of rent with the allegation that he owned a permanent shop, which was let out to the petitioner tenant. As the landlord was 84 years of age, he had appointed his son as his agent, who was receiving rent on his behalf. It was claimed that rent @ Rs.150/- per month was not paid, and that taxes imposed by the municipal authority, as well as electricity dues were also not cleared. A further ground was taken to the effect that unauthorized structure had been raised by the tenant, which disfigured the shop and diminished its value or utility. The tenancy was terminated vide notice dated 4.5.1999, 4.9.2001, and again on 26.9.2001, but a false reply was given to it, and even the rent was not paid. The total outstanding as on 26.9.2001 was shown to be Rs.8,210/-. 3. Suit was contested stating that originally the rent was Rs.70/- per month, and was successively increased to Rs.75 and Rs.150/-, and the landlord subsequently stopped receiving rent. The rent was attempted to be sent by money order, but later the money order was also not accepted, as such, the rent was deposited in proceedings under Section 30(1) of U.P. Act No.13 of 1972 in Misc. Case No.01 of 1993. Subsequently, Misc. Case No.07 of 2001 was again instituted. Since the landlord unauthorisedly attempted to evict the tenant, as such, Original Suit No.129 of 1999 was filed, in which a injunction was granted, and an appeal filed against it has also been rejected. Case No.01 of 1993. Subsequently, Misc. Case No.07 of 2001 was again instituted. Since the landlord unauthorisedly attempted to evict the tenant, as such, Original Suit No.129 of 1999 was filed, in which a injunction was granted, and an appeal filed against it has also been rejected. It was also stated that the alleged unauthorized construction in the form of Tin structure existed from the initial stage of tenancy itself, and no unauthorized construction was raised by the tenant, and that proceedings under Order 39, Rule 2A have also been initiated by the tenant, as the landlord was violating injunction. The tenant unconditionally deposited a sum of Rs.13,000/-, under Section 20(4) and maintainability of the suit has been questioned. It has also been held that proceedings are barred under Section 20(c) of U.P. Act No.13 of 1972. 4. While the proceedings were pending before the court, Om Prakash died on 17.9.2006. Respondent no.1, who happens to be the grandson of deceased Om Prakash, sought his substitution on the basis of a registered will dated 2.8.2000, and claimed himself to be the owner of the premises. An additional written statement was filed by the tenant stating that the alleged will be proved by evidence. Replication was filed on behalf of appellant, in which it was stated that the tenant is not entitled to benefit of Section 20(4) of the Act, as conditions contemplated therein have not been met. 5. Trial court, on the basis of respective plea set up by the parties and the evidence adduced, framed as many as six issues. On Issue no.1, a finding was returned that substituted plaintiff no.1/1 Vivek Kumar Maheshwari is the owner and landlord of disputed shop, and that the respondent is a tenant @ Rs.150/- per month. It was also held that challenge to the ownership of Vivek Kumar Maheshwari, at the instance of tenant, is not sustainable. Issue no.2 was decided by holding that a valid notice determining tenancy was served upon the tenant. On Issue no.4, a finding has been returned that tenant has defaulted in payment of rent. Issue no.3 with regard to grant of benefit to the tenant under Section 20(4) and Section 30(2) of U.P. Act No.13 of 1972 has been decided against the tenant for the reason that the title of landlord was questioned by tenant, and therefore, the deposit made of rent was not unconditional. Issue no.3 with regard to grant of benefit to the tenant under Section 20(4) and Section 30(2) of U.P. Act No.13 of 1972 has been decided against the tenant for the reason that the title of landlord was questioned by tenant, and therefore, the deposit made of rent was not unconditional. Issue no.5 relating to raising of unauthorized construction has also been decided against the tenant by holding that the tenant appears to have raised Tin shed construction around 1999, and that is why dispute arose between the parties, and since the value of the shop has reduced, therefore, the shop has been disfigured, and there has been a reduction in its value and utility. Issue no.6 accordingly has been decided by decreeing the plaintiffs' suit for eviction and for recovery of arrears of rent, for an amount Rs.8,210/- together with interest. 6. The tenant preferred a revision under Section 25 of the Provincial Small Cause Courts Act, 1887, in which the findings returned were challenged. The revisional court has affirmed the findings returned by the trial court, and it has been held that the denial of benefit of the provisions of Section 20(4) of the Act to the tenant is valid, since the deposit was not unconditional, and the tenant had questioned the title of the landlord. 7. Sri Shashi Nandan, learned Senior Counsel assisted by Sri Divakar Rai Sharma appearing for the petitioner, has invited attention of Court to the respective plea taken by the parties, in order to contend that there was in fact no denial of title in the facts situation of the present case, and therefore, the protection of Section 20(4) of the Act could not be denied. Learned counsel further submits that the finding returned by the courts below on Issue no.5 with regard to raising of unauthorized construction is wholly perverse. It is contended that even otherwise the constructions raised were wholly temporary in nature, and the courts below have failed to examine the matter in correct perspective. 8. Sri Rishi Chadha, learned counsel appearing for the landlord, has supported the orders passed by the courts below, and has urged that re-appreciation of evidence and the findings returned would not be warranted in exercise of jurisdiction under Article 227 of the Constitution of India. 9. 8. Sri Rishi Chadha, learned counsel appearing for the landlord, has supported the orders passed by the courts below, and has urged that re-appreciation of evidence and the findings returned would not be warranted in exercise of jurisdiction under Article 227 of the Constitution of India. 9. Having heard learned counsel for the parties, I find that bone of contention, between the parties, revolves on following two issues:- (i) Whether courts below were justified in denying benefit of the provisions contained under Section 20(4) of U.P. Act No.13 of 1972? (ii) Whether tenant was liable to be evicted under Section 20(2)(c) of the Act, on account of alleged constructions raised by them? 10. The courts below have not doubted deposit of the requisite amount in the court by the tenant towards rent and taxes etc. for the purposes of grant of benefit under Section 20(4) of the Act. The only reason taken to deny grant of such benefit is that the deposit is not unconditional, inasmuch as the title of the landlord has been disputed by the tenant. In order to appreciate the rival contention, it would be appropriate to refer to the specific pleading of the parties in that regard. While filing the suit, it was alleged in para-1 of the plaint that plaintiff Om Prakash is the owner and landlord of commercial property specified at the end of the plaint, who has appointed his son as his agent, who is plaintiff no.2, and rent is being realized though him. In the written statement, the tenant has clearly admitted the facts pleaded in para-1 of the plaint. The tenant in categorical term admits ownership of plaintiff no.1 of the premises. There is no denial or questioning of ownership of plaintiff no.1. However, plaintiff no.1 died on 17.9.2006, and claim of ownership was set up by his grandson Vivek Kumar Maheshwari, on the basis of registered will dated 2.8.2000. This fact appears to have been incorporated vide Clause 1(a). The amended written statement has been filed, in which Clause 1(a) is disputed, and it is stated that plaintiff is required to prove the alleged will dated 2.8.2000 by way of evidence. It is this plea, which has been construed by the courts below as denial of ownership of the landlord, so as to deprive him of the benefit under Section 20(4) of the Act. It is this plea, which has been construed by the courts below as denial of ownership of the landlord, so as to deprive him of the benefit under Section 20(4) of the Act. Certain oral testimony have also been relied upon for the purpose. 11. Learned counsel for the petitioner has relied upon a decision of the Supreme Court in Sheela and others v. Firm Prahlad Rai Prem Prakash, reported in AIR 2002 SC 1264 , wherein a similar provision arising out of the M.P. Accommodation Control Act, 1961, fell for consideration of the Court. Paras-16 to 18 of the report is relied upon to contend that in fact there was no denial of tenant's possession over the premises in his capacity as tenant, nor there was clear and unequivocal denial of the title of landlord. Paras-16 to 18 of the judgment are reproduced:- "16. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant how does it concern him what the title of the lessor is [See Tej Bhan Madan v. II Additional District Judge and others (1988) 3 SCC 137 ]. A denial of title which falls foul of the rule of estoppel contained in Section 116 of Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. However, it has to be borne in mind that since the consequences of applying the rule of determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer of tenancy by tenant are very serious, the denial or disclaimer must be in clear and unequivocal terms (See Majati Subbarao v. P.V.K. Krishna Rao (deceased) by Lrs. (1989) 4 SCC 732 , Kundan Mal v. Gurudutta (1989) 1 SCC 552 and Raja Mohammad Amir Ahmad Khan, (supra). (1989) 4 SCC 732 , Kundan Mal v. Gurudutta (1989) 1 SCC 552 and Raja Mohammad Amir Ahmad Khan, (supra). We may quote with advantage the law as stated by a Division Bench of Calcutta High Court in Hatimullah and others v. Mahamad Abju Choudhury, AIR 1928 Calcutta 312. It was held, "the principle of forfeiture by disclaimer is that where the tenant denies the landlord's title to recover rent from him bona-fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture". 17. In our opinion, denial of landlord's title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant within the meaning of clause (c) of sub-section (1) of Section 12 of M.P. Accommodation Control Act, 1961. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party. A tenant bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy. Such an act of the tenant does not attract applicability of Section 12(1)(c) above said. It is the intention of the tenant, as culled out from the nature of the plea raised by him, which is determinative of its vulnerability. 18. We have perused the copy of written statement, made available to us by the learned counsel for the defendant-appellant, wherein is contained the alleged denial of title. Vide para 2 of the written statement the defendant stated "the owner of the house was late Khetsidas. 18. We have perused the copy of written statement, made available to us by the learned counsel for the defendant-appellant, wherein is contained the alleged denial of title. Vide para 2 of the written statement the defendant stated "the owner of the house was late Khetsidas. On what basis the plaintiff-firm or its partners claim themselves to be the owner of the property is for them to prove". Vide para 3 of the written statement it is again stated "the plaintiff-firm is not the original owner of the house nor the rent of Rs.17/- per month was settled between the defendant and the plaintiff". However, nowhere in the written statement the defendant has disowned the character and nature of his possession over the suit premises as tenant. He has neither pleaded the title in the suit property in himself nor pleaded that anyone other than the plaintiffs is the owner of the property. On the contrary, in the written statement, as also in his deposition, the defendant has admitted his having paid rent to the plaintiffs and having initiated proceedings before the Rent Controller for fixation of standard rent of the premises impleading the plaintiff-firm as the landlord-opposite party. On the contrary, in the written statement, as also in his deposition, the defendant has admitted his having paid rent to the plaintiffs and having initiated proceedings before the Rent Controller for fixation of standard rent of the premises impleading the plaintiff-firm as the landlord-opposite party. To put it in other words, what the tenant has said, is something like this "Yes, I am a tenant in the suit premises; I have paid the rent to you (and I may continue to do so); but before you may be held entitled to a decree under Section 12(1)(f) of the Act, I, in order to protect myself from eviction, call upon you to satisfy the court and let me also be satisfied if you are the owner of the suit premises." The nature of the plea raised and the stand taken by the defendant in the written statement and at the trial is that he is the tenant and the plaintiffs are the 'landlord', as defined in the Act, but the defendant demands proof of 'ownership' of the plaintiffs over the suit property as it cannot be spelled out from the averments made in the plaint how the title over the property came to vest from Swami Khetsidas, who had inducted the defendant as tenant in the suit premises, to Prahlad Rai though the latter was not a natural born son of Swami Khetsidas and again from Prahlad Rai to the partnership firm which was suing the tenant claiming itself to be the landlord of the premises and arraying itself as plaintiff. The tenant would feel satisfied once the information leading to such vesting of title was disclosed and appealed to the Court. The primary purpose behind raising the plea was a bona fide effort on the part of the tenant to protect himself by insisting on the plaintiff satisfying all the requirements of the relevant provision of law, that is Section 12(1)(f), before he was called upon to vacate. The pleading of the defendant has to be read and appreciated in the light of the requirements of Section 12(1)(f) of the Act which provision requires a decree for eviction on the ground of bona fide requirement being passed only in favour of an 'owner-landlord'; ownership (as understood in Rent Control Law) being one of the ingredients of the ground for eviction. Such a plea raised by the defendant in his written statement is not a malicious act of the tenant. The plaintiff staking a claim for eviction under Section 12(1)(f) has also to prove ownership, apart from landlordship. It would have been different if the tenant would have raised such a plea as a malicious or wanton act of himself by raising on his own a dispute as to the title of the landlord as owner of the suit premises though the question of ownership was not germane to the claim for eviction or if he would have disowned his character as tenant whilst in possession of the premises. The plea raised by the defendant in his written statement is not a clear and unequivocal denial of the title of the landlord. There is no reason to doubt the bona fides of the tenant while raising such plea. The First Appellate Court and the High Court were, therefore, not right in holding availability of ground under Section 12(1)(c) of the Act for eviction of the tenant basing such finding on the tenant's plea raised in the written statement." 12. Per contra, Sri Rishi Chadha has relied upon a decision of the Apex Court in Dashrath Rao Kate v. Brij Mohan Srivastava, reported in 2010 (28) LCD 164, to contend that the courts below have rightly denied grant of benefit of Section 20(4) of the Act. It was contended that since substitution was allowed, there was no justification on part of the tenant to require substituted plaintiff to prove the will. Learned counsel has cited large number of decisions on the scope of powers under Section 25 of the Provincial Small Cause Courts Act, 1887, to contend that such order passed and the findings recorded therein are not liable to be re-appreciated by this Court, in exercise of its writ jurisdiction. Learned counsel has also relied upon Constitution Bench judgment of the Supreme Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, reported in 2014 (32) LCD 2296, for the purpose. Although a compilation containing 30 judgments has been cited, but upon being confronted, learned counsel has confined placing of reliance upon the judgments referred to herein. Learned counsel for the respondent has also placed reliance upon the judgment of the Apex Court in K. Laxmanan v. Thekkayil Padmini and others, 2009(27) LCD 1344; Fida Husain v. VIth Addl. Although a compilation containing 30 judgments has been cited, but upon being confronted, learned counsel has confined placing of reliance upon the judgments referred to herein. Learned counsel for the respondent has also placed reliance upon the judgment of the Apex Court in K. Laxmanan v. Thekkayil Padmini and others, 2009(27) LCD 1344; Fida Husain v. VIth Addl. District Judge, Azamgarh and another, 2004 (54) ALR 51, and Ghoorey Lal v. Sheo Murti Gupta and another, 1995(2) ARC 4. 13. In light of the judgments cited before me, the issue needs to be examined and answered. There is no quarrel to the proposition that in order to avail benefit of provisions contained under Section 20(4) of the Act, the deposit of required amount towards rent etc. has to be unconditional. It is equally settled that where the title of landlord is denied, the deposit of amount cannot be treated to be unconditional (see Ghoorey Lal (supra)). The question, however, is as to what would constitute denial of the right of landlord by the tenant. Section 20(2)(f) of the Act clearly provides that where tenant has renounced his character as such or denied the title of the landlord and the letter has not waived his right of re-entry or condoned the conduct of the tenant, the tenant would be liable to eviction. In order to entail forfeiture of tenancy and to incur liability in law to be evicted, it would be necessary that tenant renounces his character as tenant and in clear and unequivocal terms set up title in himself or a third party. In Sheela and others (supra), it is clearly observed by the Apex Court that a tenant bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title, so as to protect himself or to earn a protection in law, without disowning his character of possession over the tenanted premises as tenant, cannot be said to constitute denial of the title of landlord. 14. In the facts of the present case, the tenant in categorical terms had admitted in para-1 of the written statement the ownership of plaintiff Om Prakash and his own status as the tenant. The tenant had also deposited the requisite amount warranted in terms of Section 20(4) of the Act. It further transpires from the record that rent was continuously being realized by plaintiff no. The tenant had also deposited the requisite amount warranted in terms of Section 20(4) of the Act. It further transpires from the record that rent was continuously being realized by plaintiff no. 2, who happens to be the son of Om Prakash. In normal circumstances, plaintiff no. 2 namely Narendra Kumar Maheshwari would have succeeded the disputed premises, consequent upon death of Om Prakash. Right of Narendra Kumar Maheshwari to receive rent was never questioned. Once a claim of will was set up by the grandson, the tenant had only stated that the will be established by evidence. There was no denial to the title of grandson. The plea set up in written statement would clearly amount to a bona fide calling upon the landlord to prove his ownership, which was set up during the pendency of proceedings. The defendant tenant has neither disowned the character and nature of his possession over the suit premises as tenant, nor has pleaded title in the suit property in himself or any third person. In fact payment of rent to plaintiff as well as the version that Om Prakash was owner and landlord was specifically admitted. 15. The plea set up vide additional written statement otherwise does not seem to be lacking in bona fide, since in the life time of Om Prakash also, rent was being collected by his son, and a bona fide question may arise as to whether rent would now be payable to his son Narendra Kumar Maheshwari or his grandson Vivek Kumar Maheshwari. The statement in the oral testimony that tenant does not recognize Vivek Kumar Maheshwari cannot be given uncalled for weightage, since it was the admitted case of the parties that rent was being realized by Narendra Kumar Maheshwari, the plaintiff no.2. 16. In view of the discussions aforesaid, and the specific plea taken by the parties before the courts below, this Court finds that there is no denial of title of landlord, and on the basis of pleading put forth, the courts below were not justified in holding that deposit of rent was not unconditional. The view which I propose to take is in apparent conformity with the law laid down by the Apex Court in Sheela and others (supra). The view which I propose to take is in apparent conformity with the law laid down by the Apex Court in Sheela and others (supra). The finding of courts below on Issue no.4 that the deposit of amount under Section 20(4) would not enure for the benefit of tenant, as he had questioned the title of landlord, is found to be contrary to the materials available on record. The specific plea taken by the tenant has not been examined in correct perspective, which has occasioned failure of justice for the tenant warranting interference in this petition under Article 227 of the Constitution of India. 17. So far as the second issue with regard to raising of construction is concerned, the issue essentially revolves upon the provision contained under Section 20(2)(c), which reads as under:- "20(2). A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) .... (b) ... (c) that the tenant has without the permission in writing of the landlord made/permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;" In order to order eviction of tenant, it would have to be established that tenant without the permission of landlord has made such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it. The exact nature of offending construction would, therefore, have to be determined before the eviction could be ordered of the tenant on such ground. 18. In the facts of the present case, it has come in evidence that the tenant had put up temporary door of Tin etc., and according to the tenant, such constructions were not permanent in nature. Trial court has recorded statement of PW-1, according to which, the plaintiff came to know in 1999 that a Tin cage was erected, which was not a permanent construction. The finding returned by the courts below is only to the effect that a Tin shed has been erected below which a Tin cage has been set up, which has diminished the value of the property. The finding returned by the courts below is only to the effect that a Tin shed has been erected below which a Tin cage has been set up, which has diminished the value of the property. There is no other evidence or material justifying the finding by the courts below as to whether the offending construction is permanent in nature, so as to diminish value of the tenanted premises. In absence of a finding based upon materials on record that construction or structural alteration in the building is made, which is likely to diminish its value or utility or to disfigure it, a decree for eviction could not have been passed. This Court in Smt. Raj Rani Kapoor v. Bhupinder Singh, reported in 1990 (2) ARC 460, had been pleased to examine the provisions contained under Section 20(2)(c), with respect to similar fact situation where temporary structure had been raised. Such construction of Tin shed, which apparently is shown to be temporary in nature, and could be removed without offending the structure itself, has been held not to be covered in the mischief contemplated under Section 20(2) (c) of the Act. In absence of a valid finding, in terms of Section 20(2)(c) of the Act, the courts below could not have decreed the plaintiffs' suit for eviction, on the ground of unauthorized construction being raised by the plaintiff. 19. In view of the discussions aforesaid, both the questions are answered in favour of tenant, and it is held that the courts below were not justified in denying the benefit of the provisions contained under Section 20(4) of the Act, on account of alleged non-existent denial of the title of landlord. On the second aspect, the findings on Issue no.5 are found to be unsustainable, and the matter is remitted back for a fresh consideration on the aspect relating to nature of construction raised, and whether the construction falls within the clutches of Section 20(2)(c) of the Act. 20. The petition is, accordingly, disposed of.