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2018 DIGILAW 474 (ALL)

Abdul Rasheed v. Tara Chand

2018-02-21

SURYA PRAKASH KESARWANI

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JUDGMENT AND ORDER : 1. Heard Sri Ateeq Ahmad Khan, learned counsel for the defendant-petitioner. 2. This writ petition has been filed under Article 226 of Constitution of India praying for following relief:- (i) To call for the record of SCC Suit No. 44 of 2013 Tara Chand Vs. Abdul Rasheed and SCC Revision No. 19 of 2016, Abdul Rasheed Vs. Tara Chand and quashing the judgment and order dated 28.11.2016 passed by Judge Small Cause Court, Agra in SCC Suit No. 44 of 2013, Tara Chand Vs. Abdul Rasheed and Judgment and order dated 10.11.2017 passed by Additional District Judge, Court No. 6, Agra in SCC Revision No. 19 of 2016 (Arising out of Suit No. 44 of 2013), Abdul Rasheed Vs. Tara Chand. Facts 3. Briefly stated facts of the present case are that undisputedly Shop No. 5, Ward No. 13, Gopalpura, Shamshabad Fatehabad Road, in front of Shamshabad police station, Tehsil- Fatehabad, District-Agra, is owned by the plaintiff-respondent. He is the owner and landlord of the said shop, of which the defendant-petitioner is a tenant. On the allegation that the defendant-tenant has not paid agreed rent of Rs. 500/- per month w.e.f. 1.3.2009 and the water tax, the plaintiff-landlord/respondent issued a notice dated 22.4.2013 to the defendant-petitioner whereby the tenancy was determined and arrears of rent were demanded. 4. The said notice was replied by the defendant-tenant vide reply dated 8.5.2013. Since the arrears of rent as demanded by the notice was not paid and the disputed shop was not vacated and as such the plaintiff-landlord/respondent filed SCC Suit No. 44 of 2013, Tara Chand Vs. Abdul Rasheed which was decreed by the judgment dated 28.11.2016 passed by the Judge Small Cause Court, Agra. He recorded a finding of fact that the rate of rent is Rs. 200/- per month but the arrears of rent is for the period from 1.3.2009 to 31.3.2013. Aggrieved with the aforesaid judgment, the defendant-tenant/petitioner filed SCC Revision No. 19 of 2016, Abdul Rasheed Vs. Tara Chand which was dismissed by the impugned judgment dated 10. 11. 2017 passed by Additional District Judge, Court No. 6, Agra. Aggrieved with the said judgment, the present writ petition has been filed. Submissions 5. Learned counsel for the defendant-tenant/petitioner submits that the petitioner has not defaulted in payment of rent, inasmuch as, the admitted and correct amount of rent was Rs. 11. 2017 passed by Additional District Judge, Court No. 6, Agra. Aggrieved with the said judgment, the present writ petition has been filed. Submissions 5. Learned counsel for the defendant-tenant/petitioner submits that the petitioner has not defaulted in payment of rent, inasmuch as, the admitted and correct amount of rent was Rs. 200/- per month which was paid regularly and the rent for the month of April and May, 2013 was sent through Money order on 14.5.2013 which was refused by the plaintiff- landlord/respondent. Therefore, the finding recorded by the court below that the defendant- tenant/petitioner has defaulted in payment of rent, is wholly incorrect. In support of his submission, he relied upon a Full Bench judgment of this Court in the case of Gokaran Singh Vs. 1st Additional District and Sessions Judge, Hardoi and Others, (2000) 1 ARC 653 . 6. He further submits that the burden of proof was not discharged by the plaintiff-landlord/ respondent regarding alleged non-payment of rent and as such both the courts below have committed manifest error of law to hold the defendant-tenant/petitioner to be defaulter in payment of rent. Discussions and Findings 7. I have carefully considered the submission of learned counsel for the defendant-tenant/ petitioner. 8. Landlord-Tenant relationship between the plaintiff-respondent and the defendant- petitioner, is not disputed. There is no dispute before me regarding rate of rent to be Rs. 200/- per month instead of Rs. 500/- per month, inasmuch as, the trial court found the rent to be Rs. 200/- per month which has not been challenged by the plaintiff-landlord. The only dispute in this petition is as to whether the defendant-tenant has defaulted in payment of rent for the period from 1.3.2009 to 31.3.2013. 9. In his notice, the plaintiff-landlord/respondent has stated the rent to be in arrear for the period from 1.3.2009. In the plaint also, he stated that the rent to be due from 1.3.2009. He filed an affidavit in evidence in which he reiterated the rent to be due from 1.3.2009. He was cross-examined by the defendant-tenant/petitioner on 16.10.2014. No question was put by the defendant-tenant regarding the period of arrears of rent. The defendant-tenant/ petitioner (DW-1) has led the oral evidence on 16.10.2014. On the point of payment of rent, he stated as under:- xxx xxx xxx 10. He was cross-examined by the defendant-tenant/petitioner on 16.10.2014. No question was put by the defendant-tenant regarding the period of arrears of rent. The defendant-tenant/ petitioner (DW-1) has led the oral evidence on 16.10.2014. On the point of payment of rent, he stated as under:- xxx xxx xxx 10. From his cross-examination, it also appears that several times quarrel took place between the defendant-petitioner and plaintiff-respondent and as per his version as recorded in his evidence dated 16.10.2014/21.10.2014 that six cases are pending between them. The defendant-tenant/petitioner has not disclosed in his evidence that to whom he paid the rent. The burden regarding non/payment of rent was discharged by the plaintiff- respondent by leading his evidence. The defendant-tenant/petitioner in his evidence has not stated that he has regularly paid rent to the plaintiff-landlord/respondent. Instead he stated that he used to pay rent whosoever comes for him (plaintiff-landlord/respondent). He has not disclosed particulars of payment and the name of person to whom he allegedly paid rent. He has also not stated in his evidence that the person to whom he gave rent were authorized to receive rent for and on behalf of the plaintiff-landlord/respondent. The defendant-tenant/petitioner has himself admitted payment of rent by him to the plaintiff-landlord at his home only on some occasion. Thus, the court below has not committed any manifest error of law to hold the defendant-tenant/petitioner to be defaulter in payment of rent. 11. In the case of Gokaran Singh Vs. 1st Additional District and Sessions Judge, Hardoi and Others, (2000) 1 ARC 653 (FB) (Para 25 and 37), the Full Bench held as under:- 25. We may point out another reason for holding that notice raising demand at the higher rate than agreed between the parties or mentioning no amount is a good notice. It is that even if landlord demands rent at the correct rate agreed between the parties, there is no prohibition or bar on the tenant not to dispute the rate of rent. The tenants who happen to be the bad pay masters, habitual defaulters and who are not inclined to pay the rent, can always, dispute amount and rate of rent, they normally plead that rate of rent demanded by landlord was wrong, they have regularly been paying the rent and nothing was due against them. The tenants who happen to be the bad pay masters, habitual defaulters and who are not inclined to pay the rent, can always, dispute amount and rate of rent, they normally plead that rate of rent demanded by landlord was wrong, they have regularly been paying the rent and nothing was due against them. In that event, the dispute with regard to the rate of rent is to be decided by the Court after hearing the parties on the basis of the evidence on the record. If it is found that amount demanded by the landlord was incorrect the suit is bound to fail and no prejudice is to be caused to the tenant. But if the plea taken by the tenant is found to be false and incorrect, he will suffer the consequence in the form of ejectment from the building in his tenancy. Therefore, in the abovenoted decisions, this Court was right in holding that the notice whereby exaggerated amount of rent was demanded or where no amount or lessor amount of rent is mentioned, was a valid notice but in case tenant did not want to comply with the said notices, it was ruled, that he was bound to remit or pay the amount of rent at the rate admitted to him if he wanted to save his tenancy, in view of provisions of Clause (I) of Section 108(B) of the Transfer of Property Act & Section 37, 38 and 46 of the Contract Act, which are applicable, being the General Law in regard to landlord and tenant, and not provided for in the Act specifically, to the contrary. The view taken in all aforesaid decisions seems to be quite reasonable. We, therefore, agree with and approve the aforesaid decisions rendered by the Division Benches and Single Judges of this Court. 37. In view of the aforesaid discussions, three questions referred to the Full Bench, are answered as under:- 1. A notice of demand, by which rent is demanded at higher rate than the correct rate, cannot be said to be invalid or mala-fide. On receipt of such notice of demand, the tenant is not absolved from his duty to comply with the said notice. He can, however, tender arrears of rent at the admitted rate to the landlord. 2. A notice of demand, by which rent is demanded at higher rate than the correct rate, cannot be said to be invalid or mala-fide. On receipt of such notice of demand, the tenant is not absolved from his duty to comply with the said notice. He can, however, tender arrears of rent at the admitted rate to the landlord. 2. If the landlord has been refusing to accept the rent at correct rate and has been claiming rent at higher rate, the tenant as a consequence of landlord's earlier refusal in past, deposited the rent in the Court under Section 30 and if thereafter landlord serves formal notice of demand again at the higher rate and expresses his willingness to accept the rent, the tenant after receipt of notice is under an obligation to tender the rent at least at the rate admitted to him to the landlord and has got no right to straight away deposit the same under Section 30(1) of the Act. 3. Initial burden of proof with regard to the existence of arrears of rent lies upon the landlord. Once said burden is discharged, the tenant will have to prove the payment of rent. Where the landlord and tenant both produce evidence with regard to the existence of arrears and payment of rent, the question of burden of proof looses its importance. 12. Admittedly the defendant-tenant/petitioner has not deposited the entire arrears of rent as demanded, on the first date of hearing. The plea taken by him that the rent for the period from 01.03.2009 to March, 2013 is not due, has been found by the court below to be incorrect. Therefore, he became liable to suffer the consequence of ejectment from the disputed shop under his tenancy. The law laid down by the Full Bench in paras 25 and 37 of Gokaran Singh's Case is clearly attracted against the defendant-tenant/petitioner. 13. The findings recorded by the court below in the impugned judgment are findings of facts based on consideration of relevant evidences. Therefore, it cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India. The writ petition is wholly misconceived and, therefore, it deserves to be dismissed. 14. In result, the writ petition fails and is, hereby dismissed.