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2018 DIGILAW 913 (ALL)

SUNIL KUMAR v. JUDGE SMALL CAUSES COURT

2018-04-13

SANGEETA CHANDRA

body2018
JUDGMENT : Mrs. Sangeeta Chandra, J. This petition under Article 227 of the Constitution of India has been filed praying for quashing of the judgment and order dated 12.11.2013 passed by learned Judge, Small Causes Court, Meerut in S.C.C. Suit No. 29 of 2012 and for quashing the judgment and order dated 24.02.2018, passed by learned Additional District Judge, Court No. 9, Meerut in S.C.C. Revision No. 23 of 2014. 2. Learned counsel for the petitioner has submitted that the petitioner is a tenant of a shop situated in a building bearing No. 195 situate at Police Street, Opposite Ganga Motor Committee, Meerut Cantt. Meerut on a monthly rent of Rs. 800/-. The petitioner has been paying rent regularly each month to the landlord, but receipts were given for such payment sometimes after six months. The petitioner had paid rent up till 31.12.2011 to the landlord, but the receipts of the same has been issued only up till 31.08.2011. The petitioner got a notice issued through his counsel to the landlord on 03.02.2012 requesting him to issue rent receipts for the period 01.09.2011 to 31.12.2011 and further requested to accept rent for the period 01.01.2012 to 31.01.2012. The petitioner also tendered rent though money order dated 08.02.2012 at the correct address of the landlord which was refused by the landlord after which the petitioner started depositing the rent in court under Section 30 of the Rent Control Act. The petitioner received a notice on 18.02.2012 by the landlord in which mention was made that he was in arrears of rent for the past six months and in default thereof terminated the tenancy. The petitioner replied to the notice through his counsel on 14.03.2012. Nevertheless, S.C.C. Suit No. 29 of 2012 was instituted by the landlord on totally false grounds that the tenant had committed default in payment of rent w.e.f. 01.09.2011 and with a further assertion that the shop in question was newly constructed and the provisions of Rent Control Act No. 13 of 1972 are not applicable. It was also alleged that despite demand through notice the tenant failed to vacate the premises and, therefore, was liable to be evicted through orders of the Court. 3. It was also alleged that despite demand through notice the tenant failed to vacate the premises and, therefore, was liable to be evicted through orders of the Court. 3. In the written statement filed before the learned court below the assertions made before this Court were repeated and it was also stated in the oral statement before the learned court below by the tenant that he had deposited rent in court under Section 30 of the Act before the notice dated 18.02.2012 was issued or received by him. 4. The learned counsel for the petitioner has placed reliance upon judgment rendered by a coordinate bench of this Court in Mohd. Rafiq v. Addl. District Judge and Ors. 1996 (1) ARC 450 wherein this Court had observed in paragraphs 7 and 8 that the validity of the deposit under Section 30(1) of the Act depends upon the fact as to whether the landlord has refused to accept the rent offered to him by the tenant and in case it is found that he has refused to accept the rent then the tenant is entitled to deposit the rent under Section 30(1) of the Act. The petitioner therein had sent the money order, but it was refused by the landlord twice, therefore, the petitioner made the deposit under Section 30(1) of the Act which was found valid by this Court. 5. Learned counsel for the petitioner has also placed reliance upon a judgment of another coordinate bench in Babu Ram and others v. Special Judge/Additional District Judge, Bijnor 2004 (1) ARC 580 in paragraph 7 of the aforesaid judgment this Court had placed reliance upon a full bench decision in Indrasani v. Din Ilahi, 1968 AWR 167 and another full bench in Gorkaran Singh v. Ist A.D.J., Hardoi reported in 2000 (1) ARC 653 . The later full bench had observed that "A tenant can be said to be in arrears of rent only when by non performance of his legal obligations he has deprived the lessor of the benefit of the accrued rent." After refusal of the money order by the landlord rent was in arrears but the tenant was not in arrears of rent. In the aforesaid case rent was offered through money order which was refused by the landlord, hence the tenant started depositing the rent under Section 30 w.e.f. September 1991 and continued to deposit the same till the filing of the suit. In fact in the aforesaid case the tenant was not even aware of the filing of the suit for ejectment and continued to deposit even thereafter the amount under Section 30(6) of the Act. This Court, therefore, held that the tenant was not a defaulter regarding rent and he was not required to deposit the same again under Section 20(4) of the Act. 6. Learned counsel for the respondents on the other hand has pointed out from the facts as recorded in the orders of the learned courts below that what has been stated before this Court does not seem to be the correct version as in the oral statement made before the Judge Small Causes Court the tenant had admitted that he had deposited rent under Section 30 of the Act only on 15.03.2012 i.e. after issuance of notice by the landlord on 18.02.2012. He has referred to a judgment of a coordinate bench of this Court in Mohammad Azim and Another v. Gopal Singh 2013 (1) AWC 1023 the coordinate bench of this Court after considering all law relating to the subject has come to a conclusion that once the landlord has specifically given notice demanding rent any deposit of rent under Section 30 thereafter without first offering it to the landlord cannot be held to be a valid deposit. 7. Learned counsel for the petitioner has pointed out at this stage that in the application made under Section 30 before the Court of Munsif the date mentioned is 15.02.2012 for permission to deposit the rent under Section 30 and perhaps there is a typographical error in the recording of the oral statement made by the tenant that the deposit of rent in the Court under Section 30 was done on 15.03.2012. 8. Learned counsel for the respondents has pointed out that it is one thing to make an application for permission to deposit rent under Section 30 before the court concerned and another thing to actually deposit the rent. 8. Learned counsel for the respondents has pointed out that it is one thing to make an application for permission to deposit rent under Section 30 before the court concerned and another thing to actually deposit the rent. There is no averment in the oral statement or even in the reply to the notice dated 18.02.2012 sent by the lawyer of the petitioner on 15.03.2012 that rent had been deposited on 15.02.2012 before issuance of notice. Learned counsel for the petitioner has drawn the attention of this Court to the statement made in the reply that rent w.e.f. 01.01.2012 till 29.02.2012 has been deposited before the competent court and the same should be taken by the landlord from the court. However, from a perusal of the language of the reply dated 15.03.2012 it is clear that this statement has come in reply to the notice dated 18.02.2012 and it does not states as to when such deposit was made. It was apparently made on 15.03.2012 and not on 15.02.2012 because the deposit was w.e.f. 01.01.2012 up to 29.02.2012. From a perusal of the notice sent by the tenant dated 03.02.2012 to the landlord saying that he was not given any receipt for rent deposited by him as alleged also it is apparent that along with the notice dated 03.02.2012 the tenant had sent rent w.e.f. 01.01.2012 up to 31.01.2012 only through money order. There is no averment that rent was sent to the landlord from September 2011 onwards up to December 2011. 9. Learned counsel for the respondents has pointed out the observations made by this Court in State of U.P. through Collector, Basti and another v. IInd Additional District Judge, Basti and others; 2000 (2) ARC 438 that the concurrent finding of fact that tenant committed default in payment of rent on demand being made by the landlord is based on relevant evidence led by the parties before the learned court below and this Court under Article 226 of the Constitution of India should be careful to set aside such findings of fact. Learned counsel for the respondents has also placed reliance upon the judgment rendered in Mohd. Learned counsel for the respondents has also placed reliance upon the judgment rendered in Mohd. Siddiqui v. IInd Additional District Judge, Unnao and others; ARC 1997 (2) 400 that the onus lies upon the tenant to prove the allegation made by him that rent was paid by him to the landlord, but no receipt was issued by the landlord. Without there being any explanation for sending the rent by money order, the tenant's application cannot be believed. 10. Learned counsel for the respondents has also pointed out that from a perusal of the grounds taken in the revision before the learned Additional District Judge also there is no ground taken that the rent had been deposited in Court on 15.02.2012, but has been wrongly recorded as having been deposited on 15.03.2012. 11. Having considered the arguments made by the counsel and having perused the order impugned this Court finds that the learned court below has taken into account the oral statement made by the tenant that the deposit of rent in Court was made on 15.03.2012 after issuance of notice by the landlord on 18.02.2012. In view of the law settled by this Court in coordinate bench decision in Mohammad Azim and Another v. Gopal Singh 2013 (1) AWC 1023 this Court finds no good ground to show any interference in the orders impugned. 12. The petition is, accordingly, dismissed. 13. No order as to costs. 14. Learned counsel for the petitioner prays that some reasonable time be given to the tenant to vacate the shop in question. This Court deems it appropriate to give three months' time to the tenant to vacate the shop in question subject to his giving an undertaking before the learned court below that he will deposit the enhanced rent of Rs. 3,000/- per month for the period till he delivers the vacant possession of the shop in question, which will be a date fixed by learned court below after three months from the date a certified copy of this order is produced before him.