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2019 DIGILAW 208 (UTT)

Om Prakash Agarwal v. Vishal Futela

2019-03-15

SUDHANSHU DHULIA

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JUDGMENT : 1. This is a tenant’s revision under Section 25 of the Provincial Small Cause Courts Act. 1887 against the judgment and order dated 10.10.2014 passed by the Judge, Small Causes/III Additional District Judge, Rudrapur, District Udham Singh Nagar, whereby the suit filed by the landlord/respondent against the tenant/revisionist for rent and eviction has been decreed. 2. The case of the landlord/plaintiff before the court below was that he is the landlord of the premises, which has been rented out to the tenant/defendant. A rent deed was executed between the landlord and the tenant on 18.11.2005, whereby the premises was rented out on a monthly rent of Rs. 2,100/- per month, which was liable to be increased by 12.5 % every five years. The initial monthly rent of the same property was Rs. 1,500/- and by the aforesaid agreement it was Rs. 2,100/- and later it was further increased to Rs. 2,360/- per month. The landlord thereafter filed a suit against the tenant for recovery of rent and eviction. 3. In the written statement, the tenant admitted that although the rent of the property is only Rs. 1,500/- but undue influence was exercised by the landlord and he was coerced to sign the deed for which a rent of Rs. 2,100/- and later Rs. 2,360/- was being paid by the tenant. He is the tenant since last 20 years and therefore the premises is actually covered under the U.P. Act No. XIII of 1972 i.e. Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972. 4. However, these objections were turned down by the court below on ground that since the admitted rent of the property was Rs. 2,360/- per month and the premises whose monthly rent is more than Rs. 2,000/- is exempted from the purview of the U.P. Act No. XIII of 1972. This exemption is admittedly given under Section 2(1) (g) of the U.P. Act No. XIII of 1972, wherein it says that nothing in this Act shall apply inter alia “any building, whose monthly rent exceeds two thousand rupees”. Therefore the premises in question is outside the purview of the Act No. XIII of 1972. Consequently the suit of the landlord/plaintiff before the court below was decreed and order was passed for eviction of the tenant. 5. Aggrieved, the tenant/defendant has filed the present revision. Therefore the premises in question is outside the purview of the Act No. XIII of 1972. Consequently the suit of the landlord/plaintiff before the court below was decreed and order was passed for eviction of the tenant. 5. Aggrieved, the tenant/defendant has filed the present revision. A learned Single Judge of this Court vide order dated 08.12.2014 stayed the operation and effect of the order impugned dated 10.10.2014. 6. Heard Mr. U.K. Uniyal, learned Senior Advocate assisted by Mr. Sandeep Kothari, learned counsel for the revisionist and Mr. Siddhartha Singh, learned counsel for the respondent. 7. The argument of the revisionist, made by learned Senior Counsel Mr. U.K. Uniyal is that that there has been a complete misreading as to the amount of rent being paid by the tenant. He would insist that the amount of rent being paid by the tenant would be less than Rs. 2,000/- per month and therefore the building would come under the purview of U.P. Act No. XIII of 1972. 8. Section 7 of the U.P. Act No. XIII of 1972 reads as under: “7. Liability to pay taxes. – Subject to any contract in writing to the contrary, but notwithstanding anything contained in Section 179 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 (U.P. Act II of 1959) or in Section 149 or in any rule made or notification issued under Section 338 of the United Provinces Municipalities Act, 1916 (UP Act II of 1916) or in Section 14 (1) (e) of the United Provinces Town Areas Act, 1914 (U.P. Act II of 1914) the tenant shall be liable to pay to the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof, if any, payable in respect of the building or part under his tenancy, namely: (a) the water-tax; (b) twenty-five per cent of every such enhancement in house-tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the increase in the assessment of the building as a result of the enhancement of rent under the provisions of Section 5: Provided that nothing in this section shall apply in relation to a tenant the rate of rent payable by whom for the time being (excluding any enhancement of rent under provisions of Section (5) does not exceed twenty-five rupees per month.)” 9. The argument of the learned Senior Counsel for the revisionist would be that under Section 7, the liability to pay water tax as well as certain percentage of enhanced house tax is on the tenant. Whereas in the rent deed it has been specifically stated that the electricity charges will be borne by the tenant, but the rent deed is silent about the water tax or the house tax. Meaning thereby, both the water tax and the house tax have to be borne by the tenant. 10. Taking his argument further the learned Senior Advocate would submit that admittedly nothing extra was being paid by the tenant apart from the rent i.e. Rs. 2,100/- per month and (Rs. 2,360/- later). This would include both the water tax as well as the enhanced house tax and if the amount under these two heads is deducted from Rs. 2,100/- (or Rs. 2,360/-), the amount of actual rent which is being given by the tenant to the landlord is much below to Rs. 2,000/-. This aspect has not been considered by the learned court below and on these facts the order of the learned court below dated 10.10.2014 is liable to be set aside and the matter be remanded. 11. This argument of the learned Senior Counsel for the revisionist is not tenable primarily for the reasons (and as pointed out by Mr. Siddhartha Singh, learned counsel for the landlord/respondent) that there is no such plea taken by the tenant before the court below. 12. In the written statement filed by the tenant, he has not taken this plea that the amount being paid is less than Rs. 2,000/- per month which is for the reason that it also includes house tax and the water tax. No evidence has been led on this aspect by the tenant. Therefore, although it is a revision under Section 25 of the Provincial Small Causes Court, yet this aspect cannot be considered at this stage. Moreover, the exemption clause under the U.P. Act No. XIII of 1972 clearly states that “any building whose monthly rent exceeds Rs. 2000” is exempted from the purview of U.P. Act No. XIII of 1972. In the rent deed which has been executed between the two i.e. the landlord and the tenant it has been clearly stated that the rent of the premises is Rs. 2000” is exempted from the purview of U.P. Act No. XIII of 1972. In the rent deed which has been executed between the two i.e. the landlord and the tenant it has been clearly stated that the rent of the premises is Rs. 2,100/- per month, which was admittedly increased before filing of the suit for eviction to Rs. 2,360/- per month. Once there are specific averments to this effect, no presumption can be drawn in favour of the tenant. A strict interpretation, as was required in this matter, shows that the rent of the property was Rs. 2,100/- per month (which was increased to Rs. 2,300/- per month at a later stage). 13. Learned Senior Counsel for the revisionist Sri U.K. Uniyal would then submit that what is required is an interpretation of Section 7 of the U.P. Act No. XIII of 1972 and therefore this matter can be appreciated at this stage itself. However, I am not inclined to accept this argument, as what has been submitted by the learned Senior Counsel for the revisionist here is mixed questions of facts and law. These facts have not been pleaded before the court below. There is no pleading which suggests that the revisionist at any stage before the court below has given any evidence that what is being actually paid as rent to the landlord would also include water tax as well as certain percentage of house tax and therefore the actual rent would be less than Rs. 2,000/- per month. There is no pleading on this aspect. 14. Admittedly, the rent is more than Rs. 2,000/- per month and therefore the court below has rightly come to the conclusion that since the admitted rent of the property is more than Rs. 2,000/- it is beyond the purview of the U.P. Act No. XIII of 1972. Once this finding has come, no fault can be found from the eviction order, which has been ultimately passed by the learned court below. 15. There is no merit in this revision. The S.C.C. revision is therefore dismissed.