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2018 DIGILAW 2501 (ALL)

Ram Ratan v. Judge Small Causes Court

2018-12-10

SANGEETA CHANDRA

body2018
JUDGMENT : 1. The petition under Article 227 of the Constitution of India has been filed praying for quashing of the judgment and order dated 24.02.2018 passed by the Additional District Judge, Court No. 9 Meerut in SCC Revision No. 24 of 2014 and also prays for quashing of the judgment and order dated 12.11.2013 passed by the Judge, Small Causes Court, Meerut in SCC Suit No. 30 of 2012. 2. Facts which are relevant for decision of the controversy are to the effect that the petitioner is the tenant of a shop situated in a building bearing Municipal No. 195 at Police Street, Opposite Ganga Motor Committee, Meerut Cantt. Meerut. 3. It has been stated in the petition that the petitioner is a tenant at a monthly rent of Rs.900/- and opposite party no. 3-Vijay Kumar Goel is owner and the landlord. 4. The opposite party no. 3 instituted SCC Suit No. 30 of 2012 alleging default in payment of rent w.e.f. 01.09.2011 and that the shop in question is a new construction and exempted from the Rent Control Act, 1972 (herein after referred to as the Act No. 13 of 1972). It was also alleged that despite a demand notice asking for arrears of rent and determining the tenancy, the tenant had failed to vacate the premises. In the plaint it was alleged that the tenant had paid rent up to 31.12.2011 and a notice dated 03.02.2012 was served upon him by the plaintiff praying for rent w.e.f. 01.09.2011 to 31.12.2012. Despite such payment being demanded, the tenant did not pay and also failed to vacate the premises. 5. The tenant, on the other hand, filed a written statement alleging that rent had been paid by him up to 31.12.2011 but rent receipt had not been given by the landlord. A notice was issued by the tenant on 03.02.2012 demanding issuance of rent receipts for the period w.e.f. 01.09.2011 up to 31.12.2011 and a request was made to accept rent w.e.f. 01.01.2012 to 31.01.2012. In reply to such notice and as a counterblast the landlord has sent notice dated 18.02.2012 demanding rent w.e.f. 01.09.2011. 6. The tenant replied to such notice stating that on refusal to accept rent as offered by the tenant to the landlord the rent was deposited in Misc. In reply to such notice and as a counterblast the landlord has sent notice dated 18.02.2012 demanding rent w.e.f. 01.09.2011. 6. The tenant replied to such notice stating that on refusal to accept rent as offered by the tenant to the landlord the rent was deposited in Misc. Case No. 60 of 2012 under Section 30 of the Act No. 13 of 1972 before the Civil Judge (Junior Division), Meerut. It was also disputed that the property in question was newly constructed and was exempted from U.P. Act No. 13 of 1972. 7. It has been argued that the Judge, Small Causes Court decided the issue of applicability of U.P. Act No. 13 of 1972 erroneously in favour of the landlord and thereafter without considering the written statement of the tenant that he had deposited rent in Misc. Case No. 60 of 2012 decreed the suit in favour of the landlord. The petitioner-tenant thereafter filed SCC Revision which was also rejected erroneously. 8. I have heard Shri Pankaj Agarwal, learned counsel for the petitioner and Shri Sumit Daga, learned counsel for the respondent no. 3. 9. Shri Pankaj Agarwal has relied upon a judgment rendered by the Hon'ble Supreme Court in Ram Swaroop Rai vs. Smt. Lilawati reported in 1980 ARC 466 (SC) (paragraphs 8 and 10 thereof). 10. Learned counsel for the petitioner has also submitted that the date of first hearing of the suit and the applicability of section 20 (4) ought to be considered in the light of the law settled by the Supreme Court in Ved Prakash Wadhwa vs. Vishwa Mohan reported in 1981 ARC 1. 11. With regard to deposit of rent by the tenant under section 30 (1) of the Act, learned counsel for the petitioner has placed reliance upon a judgment of this Court rendered in Mohd. Rafiq vs Additional District Judge and others reported in 1996 (1) ARC 450 (paragraphs 2,3,4,7 and 8 thereof). 12. Shri Sumit Daga, learned counsel who appears for the opposite party no. 3 on the other hand has relied upon judgments rendered by this Court in the case of State of U.P. through Collector, Basti and Another vs II Additional District Judge, Basti and Others reported in 2000 (2) ARC 438, Mohd. 12. Shri Sumit Daga, learned counsel who appears for the opposite party no. 3 on the other hand has relied upon judgments rendered by this Court in the case of State of U.P. through Collector, Basti and Another vs II Additional District Judge, Basti and Others reported in 2000 (2) ARC 438, Mohd. Siddiqui vs. IInd Additional District Judge, Unnao and Others reported in 1997 (2) ARC 400, Mohammad Azim and Another vs. Gopal Singh reported in 2013 (1) AWC 1023 , Smt. Khursheeda Begum and Others vs. Additional District Judge, Varanasi and Others, reported in 2001 (1) AWC 851 . 13. Lastly, learned counsel for the opposite party no. 3 has submitted that in a similar case relating to the same premises, this Court in an Application under Article 227 No. 2412 of 2018 (Sunil Kumar vs Judge, Small Causes Court and 2 Others) has already dismissed the petition on 13.04.2018. 14. Having heard the rival contention and having perused the impugned orders, this Court has primarily to decide whether U.P. Act No. 13 of 1972 is applicable on the property in suit. As per Explanation I of sub section 2 of Section 2 of U.P. Act No. 13 of 1972, a building is exempted from U.P. Act No. 13 of 1972, if it has been constructed after 25.04.1985 and for determination of date of construction of a building, the date of first assessment or completion certificate is relevant and if the same is unavailable, the date of first occupation of the building for the purposes of residence is to be considered. 15. The learned Trial Court has taken into account the statement made by the plaintiff that the shop in question was constructed around 17 years ago after demolishing old construction. No cross-examination of the plaintiff's statememt was done by the tenant-defendant. In the oral statement of the tenant also on 23.10.2013, the tenant admitted that he had taken the shop on rent about 20 years ago and at the time of taking on rent, the shop had been newly constructed and given to the tenant. 16. On the basis of such admission on the part of the defendant, the learned Trial Court came to the conclusion and rightly so that there is an admission on the part of the tenant that he took the shop on rent in the year 1993-94. 16. On the basis of such admission on the part of the defendant, the learned Trial Court came to the conclusion and rightly so that there is an admission on the part of the tenant that he took the shop on rent in the year 1993-94. The SCC Suit was thus held maintainable. 17. With regard to the submission of the learned counsel for the petitioner that the petitioner had offered rent for the month of January to the landlord by his notice dated 03.02.2012 and on refusal of the landlord to accept the money-order, had deposited the said rent in the Court under Section 30(1) of the Act No. 13 of 1972 on 08.02.2012, hence when the plaintiff demanded rent through his notice dated 18.02.2012, it was replied by the tenant by saying that he had already deposited rent in the Court, this Court has considered the findings recorded by the learned Trial Court and the learned Revisional Court. 18. The learned Trial Court has taken into account the fact that the tenant had admitted in his oral statement dated 23.10.2013 that in his reply dated 15.03.2012 to the notice of the landlord he had not offered any rent to the landlord. He had merely stated that he had deposited rent in Misc. Case No. 60 of 2012. Even during the pendency of the SCC Suit, no attempt was made by the tenant to deposit arrears of rent at the admitted rate before the Trial Court. The Misc. Case filed before the Civil Judge (Junior Division) also stood dismissed on 01.03.2012. 19. The learned Trial Court took into account this admission and also the fact that the tenant had deposited rent of only January, 2012 in Misc. Case filed under Section 30 of the Act and no further rent was deposited, nor it was offered to the landlord even on demand, and has given a finding against the defendant thereafter. 20. No documentary evidence could be produced by the defendant also with regard to tendering of rent to the plaintiff landlord w.e.f. 01.09.2011 up to 31.12.2012 before the Trial Court. 21. The findings of fact recorded by the learned Trial Court have not been challenged either in the pleadings on record or during the course of the argument by the learned counsel for the petitioner. 21. The findings of fact recorded by the learned Trial Court have not been challenged either in the pleadings on record or during the course of the argument by the learned counsel for the petitioner. The only argument raised is that the Trial Court wrongly placed reliance on the admission of the tenant in his oral statement. 22. Shri Sumit Daga, on the other hand, has pointed out judgments rendered by this Court which have been considered in Mohd. Azim and Another vs. Gopal Singh reported in 2013 (1) AWC, 1023 viz. Gokaran Singh vs. Ist ADJ, Hardoi and Another reported in 2000 (1) ARC 653 (FB) and the judgment of the Hon'ble Supreme Court in N. Palanisami vs. A. Palani Swamy reported in AIR 1998 Madras 264 and in the case of Atma Ram vs. Shakuntala Rani reported in 2005 (61) ALR, 450 and in the case of Noor Mohammad and another Vs. XIVth Additional District and Sessions Judge, Kanpur Nagar and others reported in 2006 (63) ALR, 244. 23. The learned counsel for the opposite party no. 3 has submitted that a deposit made under Section 30 of the Act No. 13 of 1972 after receipt of notice of demand by the landlord is not a legal deposit and shall not be treated to be an amount paid to the landlord. After notice of demand from the landlord as also filing of suit for eviction and service of summons upon the tenant, the tenant is not entitled to deposit rent elsewhere except in the Court in which the suit had been filed. 24. It has been argued that once the landlord has specifically given notice, no deposit of rent under Section 30 thereafter, without first offering the same to the landlord can be held to be a valid deposit for the purposes of attracting Section 20(4) so as to be given benefit to the tenant. 25. The learned counsel for the petitioner has placed reliance upon the judgment in the case of Ram Swaroop Rai vs. Smt. Lilawati reported in 1980 ARC 466 (SC) which says that the burden of proof lies upon the landlord who claims exemption under Section 2(2) of the Act. I have perused the said judgment which merely observes that the failure to produce municipal records before the Court below to prove the date of completion of construction of building would be fatal. I have perused the said judgment which merely observes that the failure to produce municipal records before the Court below to prove the date of completion of construction of building would be fatal. Oral evidence is only the secondary evidence. The testimony in the aforesaid case was that of the owner of the shop which was relied upon by the learned Trial Court. The tenant-appellant had not given any direct testimony. The municipal assessment record that was produced before the Court stated increased assessment on the building being reconstructed. The Court observed that "of course, an admission by the appellant is evidence against him but an admission is not only conclusive specially in the light of municipal records such as are available and the burden such as has been placed by the statute........." 26. In the case of the petitioner, however, it was not only the oral statement of the landlord which was taken into account but also the oral statement of the defendant-tenant. Admission by the tenant of his taking the shop in the year 1993-94 when the same was newly constructed did not require any further evidence to be taken. The onus of proof may have been upon the landlord to prove new construction of the demised shop but the same was discharged the moment the tenant accepted in his oral statement that the shop in question was newly constructed when he took the same on rent in the year 1993-94. The burden of proof then shifted upon the tenant to prove that the shop in question was an old construction by reference to municipal records or any other documentary evidence to dispel the prima facie conclusion in favour of the plaintiff. The tenant however, did not produce any documentary evidence in support of his claim. 27. The learned Trial Court and the learned Revisional Court rightly gave a finding recording exemption of the shop under Section 2(2) of the Act No. 13 of 1972. 28. The learned counsel for the petitioner has relied upon the judgment rendered in Indrasani vs. Din Ilahi reported in 1968 AWR 167. 27. The learned Trial Court and the learned Revisional Court rightly gave a finding recording exemption of the shop under Section 2(2) of the Act No. 13 of 1972. 28. The learned counsel for the petitioner has relied upon the judgment rendered in Indrasani vs. Din Ilahi reported in 1968 AWR 167. The Full Bench of this Court had held that when a tenant remits rent for a particular month by money-order and the landlord refuses to accept the same, it cannot be said that that the tenant was at default in the payment of rent, although the rent could have been in arrears for that month. 29. In the facts of the case of the petitioner however, no documentary evidence has been filed by the petitioner to show that he remitted rent to the landlord w.e.f. 01.09.2011 to 31.12.2011. The only documentary evidence that has been filed by tenant before the learned Trial Court and the Revisional Court is to the effect that a money-order offering the rent for the month of January was sent to the landlord which was refused to be accepted and the same was deposited in the Court thereafter under Section 30 of the Rent Control Act. However, the Misc. Case No. 60 0f 2012 stood dismissed in March, 2012. Till the date of decision by the Judge, Small Causes Court, Meerut on 12.11.2013, no attempt was made by the petitioner to deposit rent in the Court of Judge, Small Causes Court. Therefore, the benefit of judgment in the case of Indrasani (Supra) cannot be given to the petitioner. The reliance placed by the petitioner on Ved Prakash Wadhwa (Supra) also seems misconceived in view of the facts as stated herein above. 30. On the other hand in the Full Bench decision in Gokaran Singh vs. Ist A.D.J., Hardoi reported in 2000 (1)ARC, 653, it has been held that once the tenant receives the notice of demand he has to tender rent to the landlord and he cannot straight-away deposit the same in Court under Section 30, although he was doing so in the past. Also, a notice of demand cannot be said to be invalid or malafide only because it mentions a higher rate of rent that was allegedly agreed upon between the parties. In fact a valid notice of demand may not even mention the rent or the period of arrears correctly. 31. Also, a notice of demand cannot be said to be invalid or malafide only because it mentions a higher rate of rent that was allegedly agreed upon between the parties. In fact a valid notice of demand may not even mention the rent or the period of arrears correctly. 31. The learned counsel for the petitioner has placed reliance upon Ram Swaroop Rai vs. Smt. Lilawati (supra) which has only held that the landlord, if he claims exemption from the operation of the Rent Control Act, has to prove his case by documentary evidence vis.-a-vis. the municipal records of assessment and admission by the tenant alone cannot be conclusive. However, when a building is not assessed and the date of construction is not reported then the date on which it is otherwise occupied for residence shall be treated to be the date of completion of the construction. In the case of the petitioner he had admitted that when he occupied the building, it had been newly constructed. In his oral statement taken on 23.10.2013, the petitioner had admitted that he had taken the shop on rent about twenty years ago i.e. sometime in the year 1993. It can, therefore, safely be said that the construction was raised after the cut off date i.e. 25.04.1985. 32. With regard to the other judgments relied upon by the learned counsel for the petitioner, the same are inapplicable on the facts of the case as in Mohd. Azim & Another vs. Gopal Singh (supra), this Court had considered all previous judgments/binding precedents and has laid down the law to which I respectfully agree that if the landlord had demanded rent by his notice dated 18.02.2012, the tenant ought to have offered rent first to the landlord, more so when his Misc. Case filed before the Civil Judge (Junior Division) already stood dismissed on 01.03.2012 and no attempt was made thereafter during pendency of the suit to deposit rent before the Trial Court by the tenant. 33. I find no legal or factual infirmity in the orders impugned. This petition is devoid of merits and is hence dismissed. The petitioner is directed to handover peaceful and vacant possession of the suit property to the landlord within a period of one month from today. The respondent no. 3 is also entitled to the benefits of the judgments rendered by the two learned Courts below also.