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2018 DIGILAW 41 (ALL)

VAISHNAVI SALES NISHATGANJ v. ATAM JEET SINGH

2018-01-05

MAHENDRA DAYAL

body2018
JUDGMENT : Mahendra Dayal, J. The tenant-revisionists have filed this revision under section 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 03.11.2017 passed by Additional District Judge, Court No. 3, Sitapur in SCC Suit No. 9 of 2015 whereby the suit filed by the opposite parties have been decreed and the revisionists have been directed to vacate the shop in question within a month and also pay damages for wrongful use of occupation at the rate of rupees thirty thousand per month till the date of handing over the possession. The interest at the rate of seven percent was also to be paid by the revisionists. 2. The brief facts of the case are that the opposite parties are the owners landlord of a house situated at Station Road Vijai Laxmi Nagar, Pargana Khairabad, District Sitapur, in which a shop was let out to the revisionists. The rate of rent as agreed between the parties was rupees ten thousand per month but since the revisionists wanted to open a showroom in the said shop, major alterations were made in the shop and it was agreed that rupees thirty thousand per month shall also be paid by the revisionists, towards maintenance charge. According to the opposite parties, the rent was paid upto the month of March 2015 at the rate of forty thousand per months but since April 2015, the payment of rent was stopped. The opposite parties then issued a notice thorough their counsel calling upon the revisionists to pay the arrears of rent within fifteen days and also terminated their tenancy on the expiry of thirty days. The notice was issued on 07.08.2015, which was duly replied by the revisionists on 26.08.2015, but neither the arrears of rent was paid nor the shop was vacated. The opposite parties filed the suit for recovery of arrears of rent and damages and also for a decree for eviction. 3. The revisionists filed their written statement and admitted the opposite parties to be their landlord but it was stated that the rent agreed between them was only rupees ten thousand per month. The agreement with regard to payment of maintenance charge was between the revisionists and Guru Nanak Maintenance Management Company to which the opposite parties have no concern and have also no right to claim or demand maintenance charge. The agreement with regard to payment of maintenance charge was between the revisionists and Guru Nanak Maintenance Management Company to which the opposite parties have no concern and have also no right to claim or demand maintenance charge. It was also said that the opposite parties wrongly took rupees forty thousand per month amounting to rupees four lakhs eighty thousand till 01.04.2014 while they were entitled to get only rupees one lakh twenty thousand as rent. There was, thus, excess payment to them amounting to rupees three lakhs sixty thousand. It was also pleaded by the revisionists that there was an arbitration clause in the agreement and as such the suit was barred by the provisions of Arbitration Act. 4. The parties adduced evidence in support of their case and the learned court below framed three points of determination which are as under:- (1) Whether the revisionists were tenant in the shop in question and the rate of rent was rupees ten thousand per month along with rupees thirty thousand per month as maintenance charge. (2) Whether the tenancy of the revisionists was validly terminated and if yet whether the opposite parties were entitled for damages and if so on what rate. (3) To what relief the opposite parties-plaintiffs were entitled. 5. The learned court below did decide the points of termination separately but all the points of determination were taken up together and a composite finding was recorded to the effect that the opposite parties-plaintiffs were entitled to get only rupees ten thousand per month as rent. It was also held by the court below that rupees thirty thousand per month as maintenance charge shall also be payable by the revisionists which has been deposited in the court and as such they have committed default in payment of rent. The learned court below also observed that as per the agreement, the opposite parties landlord could terminate the tenancy, in case of the arrears of rent of more than two months and maintenance charge of more than three months. Thus, the tenancy has been validly terminated and the revisionists were liable to be evicted. The learned court below also found that the opposite parties were entitled to get rupees thirty thousand per month as damages for wrongful use and occupation till the date of handing over the possession of the disputed shop. 6. Thus, the tenancy has been validly terminated and the revisionists were liable to be evicted. The learned court below also found that the opposite parties were entitled to get rupees thirty thousand per month as damages for wrongful use and occupation till the date of handing over the possession of the disputed shop. 6. I have heard Sri Shiv Nath Tilhari learned counsel for the revisionists and Sri Puneet Chandra as well as Dr. Ashutosh Mishra learned counsel for the opposite parties and also perused the record. 7. The learned counsel for the revisionists has argued that in view of para-20 of the lease deed, the suit was maintainable because it is specifically provided in paragraph-20 of the agreement that in case of any controversy or claim arising out of or in relation to the deed or any breach or alleged breach thereof, shall be finally settled in accordance with provision of Arbitration and Conciliation Act, 1996. According to the learned counsel for the revisionists, this clause has been overlooked by the court below and there is no mention in the judgment as to whether the suit was maintainable or not. The revisionists in paragraph-17 of their written statement specifically raised this issue but the learned court below failed to frame any point of determination on this important issue. The question with regard to maintainability of the suit ought to have been decided as preliminary issue. 8. It is next submitted by the learned counsel for the revisionists that admittedly there was no agreement with the opposite parties with regard to payment of maintenance charge and as such the opposite parties could have demanded maintenance charge because the agreement for payment of maintenance charge was with Guru Nanak Maintenance Management Company. The decree in respect of maintenance charge could have been passed in favour of the opposite parties. It has also been submitted on behalf of the revisionists that clause 2 of the lease deed dated 15.01.2014 clearly provides that the lessor shall and has no right to terminate the lease before the expiry of the lease period except in the event of breach of the terms and conditions. It has also been submitted on behalf of the revisionists that clause 2 of the lease deed dated 15.01.2014 clearly provides that the lessor shall and has no right to terminate the lease before the expiry of the lease period except in the event of breach of the terms and conditions. It is further provided in the lease deed that in the event of breach of agreement, the lessor would issue minimum thirty days notice to rectify the breach and if the breach is rectified, the notice would be deemed to be withdrawn and in case of non-rectification of breach, the lessor will have right to terminate the lease. 9. It is submitted by the learned counsel for the revisionists that if there was any breach on the part of the revisionists, the opposite parties ought to have issued thirty days notice for rectification of breach and give opportunity to the revisionists to rectify the breach but instead of doing so, the tenancy was terminated by issuing an illegal and invalid notice. This important aspect of the matter has also been overlooked by the court below and this has happened because the learned court below did deal with the points of determination separately. The learned counsel for the revisionists has referred to the provision of Order 20, Rule 4(1) and 5 C.P.C. It has been argued that it was obligatory for the court below to set the points for determination and give its finding on each of the points. 10. It has also been argued on behalf of the revisionists that the rent agreed between the parties was only rupees ten thousand but the learned court below erroneously held that rupees thirty thousand as maintenance charge was also to be paid as part of the rent while the agreement for payment of maintenance charge was between the parties. Thus, the judgment and decree impugned in this revision is erroneous and perverse. 11. The learned counsel for the opposite parties Sri Puneet Chandra has submitted that maintenance charge is also part of the rent and is payable by the tenant to his landlord along with rent. This has been held by this Court in the case of Ram Lakhan Gupta v. Taksal Theater Pvt. Ltd. reported in 2015 (5) ALJ 209. 11. The learned counsel for the opposite parties Sri Puneet Chandra has submitted that maintenance charge is also part of the rent and is payable by the tenant to his landlord along with rent. This has been held by this Court in the case of Ram Lakhan Gupta v. Taksal Theater Pvt. Ltd. reported in 2015 (5) ALJ 209. In this case, it has been held that the money which is paid as rent if any service is rendered and any payment is made in respect of the same, it shall also be included within the definition of rent. Thus, the learned court below rightly held that rupees thirty thousand as maintenance charge was also payable along with the rent of rupees ten thousand which was not paid by the revisionists. It has also been submitted by the opposite parties that admittedly the building in question was beyond the purview of the Rent Control Act, therefore, the tenancy could be terminated by giving thirty days notice to the tenant. The notice therefore cannot be faulted on the ground that as per the agreement, the tenancy could not be terminated. It has further been submitted on behalf of the opposite parties that the revisionist initially paid rupees forty thousand per month by means of cheque and thereby admitted that the maintenance charge was also payable along with the rent but subsequently they stopped paying rent as well as the maintenance charge. Thus, in view of the admission made by the revisionists, nothing remains to be decided with regard to the rate of rent. In view of the law laid down by the Hon'ble Supreme Court in the case of Jaswant Kaur and another v. Subhash Paliwal and others reported in 2010 RD page 554, the admission made in the written statement cannot be permitted to be resiled. Thus, there is no error or illegality in the judgment and decree of the court below. 12. Having heard the learned counsel for the parties and having gone through the impugned judgment and decree, I find that inspite of a specific defence in the written statement that the suit was barred and there was arbitration clause in the agreement, the learned court below did not frame any point of determination on this issue and also did not decide this controversy. The point of determination which were framed by the court, were taken up jointly while separate finding should have been recorded by the court on each point of determination. The learned court also ignored this important fact that the agreement for payment of maintenance charge was not between the parties but was between the revisionists and Guru Nanak Maintenance Management Company and as such the opposite parties could not have claimed the same. The learned court below also did not correctly appreciate the lease agreement between the parties which provides for a thirty days notice, in case of breach of terms and conditions, prior to determination of the lease. 13. This Court while exercising power of revision under Section 25 of the Small Cause Court Act, cannot re-appreciate the evidence and record a contrary finding of fact. The matter, therefore, needs reconsideration by the court below. 14. In the result, the revision is allowed and the impugned judgment and decree dated 03.11.2017 passed by Additional District Judge, Sitapur in SCC Suit No. 9 of 2015 is set aside. The matter is remitted back to the court concerned with direction that the learned court below shall restore the SCC suit to its original number and shall decide the same in accordance with law in the light of the observations made in this judgment. The parties are directed to appear before the court below on 24.01.2018 along with the certified copy of the judgment.