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2019 DIGILAW 287 (UTT)

CHANDRA PRAKASH AGARWAL v. ABDUL NAYEEM

2019-04-23

LOK PAL SINGH

body2019
JUDGMENT Hon'ble Lok Pal Singh, J. Petitioner has invoked the extraordinary jurisdiction of this Court under Article 227 of The Constitution of India, seeking a writ of certiorari setting aside the impugned judgment and decree dated 16.08.2012 passed by Judge, Small Cause Court/Civil Judge (Senior Division), Almora in small cause case no.02 of 2010 and the judgment and decree dated 02.09.2014 passed by District Judge, Almora in civil revision no.14 of 2012. 2. Brief facts of the case are that the petitioner/landlord filed a suit being SCC suit no.02/2010 before Judge, SCC, Almora against the respondents/tenants for ejectment and arrears of rent stating that the plaintiff is the landlord of the building situated at first floor consisting of two rooms, kitchen and a balcony, and the respondent is the tenant @ Rs.300/- per month in the said premises. It is contended that the tenant has committed default in payment of rent; he has purchased a house in the name of his wife and has shifted to his own house and some part of the house which is under tenancy has been let out. It is contended that since November, 2006, the tenant is not paying any rent. However, he has deposited the rent in the court of Civil Judge (Junior Division) under Section 30(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, Act No.13 of 1972). An amount of Rs.10,800/- is due towards tenancy and the tenancy of the respondent has been terminated by issuing a legal notice to him. Respondent/tenant contested the suit and filed his written statement. In his written statement, he denied all the averments. He contended that he is under tenancy @ Rs.100/- per month. Contents of para-3 where it is stated that the tenant is living in a accommodation of two rooms, kitchen and balcony, has been specifically denied. The respondent/tenant also contended that he is depositing the rent u/s 30(1) of the Act No.13 of 1972 and thus there is no default committed by him in payment of rent. 3. On the pleadings of parties, learned Judge, S.C.C. formulated the following issues/points of determination: i) Whether the rate of rent of the property in dispute is Rs.300/- per month? ii) Whether the defendant/tenant has deposited the rent in the court and is entitled to get the benefit therefrom? iii) Relief? 4. Thereafter, the parties led their evidence. 3. On the pleadings of parties, learned Judge, S.C.C. formulated the following issues/points of determination: i) Whether the rate of rent of the property in dispute is Rs.300/- per month? ii) Whether the defendant/tenant has deposited the rent in the court and is entitled to get the benefit therefrom? iii) Relief? 4. Thereafter, the parties led their evidence. In documentary evidence, the petitioner/plaintiff filed challans, rent receipts, order of Prescribed Officer, copy of notice, tax assessment list of municipality board. In oral evidence, plaintiff got examined himself as PW1. 5. Respondent/tenant filed the 15 documents vide list 12-C and also got examined himself as DW1. 6. On issue no.1, trial court recorded its finding that the plaintiff/landlord could not prove that the rate of rent is Rs. 300/- per month and observed that the rate of rent admitted to the tenant is Rs. 100/- per month and decided this issue against the plaintiff. On issue no.2, trial court recorded finding that since the tenant has deposited the rent u/s 30(1) of the Act No.13 of 1972 in the court, therefore, he is entitled to get the benefit of sub-section (4) of Section 20 of the Act No.13 of 1972 and decided this issued against the plaintiff. Accordingly, the Judge, S.C.C., vide its judgment and order dated 16.08.2012, dismissed the suit of the plaintiff. Feeling aggrieved, petitioner/landlord preferred Civil Revision No.14 of 2012 before the District Judge, Almmora, which was also dismissed by judgment and order dated 2.9.2014. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the petitioner/landlord would submit that admittedly premises in question is a residential accommodation which is under the tenancy of the respondent/tenant. He would further submit that the tenant has purchased a house, which is in the name of his wife and is also recorded in the name of his wife. He would also submit that the respondent/tenant has committed default in payment of rent and after institution of suit, neither the respondent tendered any rent to the petitioner nor deposited in the aforesaid suit. He would further submit that the petitioner was not entitled to get the benefit of Section 20(4) of Act No.13 of 1972 by depositing the rent u/s 30(1) of the Act No.13 of 1972 in the court of Civil Judge, (Junior Division). He would further submit that the petitioner was not entitled to get the benefit of Section 20(4) of Act No.13 of 1972 by depositing the rent u/s 30(1) of the Act No.13 of 1972 in the court of Civil Judge, (Junior Division). According to him, both the courts below have committed illegality in ignoring this legal aspect of the matter. 9. It would be apt to reproduce Sub-section (4) of Section 20 of the Act No.13 of 1972, which is as follows: “(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or [tenders to the landlord or deposits in court] the entire amount of damages for use and occupation of the building due from his (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting there from any amount already deposited by the tenant under sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground : Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified, area or town area. 10. A plain language of aforesaid section would make it clear that if, on the first date of hearing of the suit, the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him, the court shall pass an order relieving the tenant against his liability for eviction on that ground. In the present case, it is not in dispute that the tenant, after institution of suit, has neither paid or tendered unconditionally the entire amount of rent to the landlord nor has deposited the same in the court. Thus, the benefit under Section 20(4) cannot be extended in favour of the tenant/respondent on this ground. In the present case, it is not in dispute that the tenant, after institution of suit, has neither paid or tendered unconditionally the entire amount of rent to the landlord nor has deposited the same in the court. Thus, the benefit under Section 20(4) cannot be extended in favour of the tenant/respondent on this ground. Furthermore, proviso to sub-section (4) of Section 20 stipulates that the tenant of a residential accommodation who has purchased or built his own house or has acquired the vacant house, will not be entitled to get the benefit of Section 20(4) of the Act. Though the tenant has not specifically denied the fact that he has constructed a house but in cross-examination he has admitted that he has purchased a residential house, which is in the name of his wife and whose name is recorded in the same municipal area. On this count also, benefit of Section 20(4) of the Act No.13 of 1972 could not be extended to the respondent/tenant. Thus, the finding recorded by the trial court on issue no.2 and affirmed by the revisional court, is perverse. Both the courts below have committed patent error of law in extending the benefit of Section 20(4) of the Act in favour of the respondent/tenant. 11. For the foregoing reasons, writ petition is allowed. Impugned judgment and decree dated 16.08.2012 passed by Judge, Small Cause Court/Civil Judge (Senior Division), Almora in small cause case no.02 of 2010 as well as judgment and decree dated 02.09.2014 passed by District Judge, Almora in civil revision no.14 of 2012, are hereby set aside. A decree of ejectment and recovery of rent and damages is passed against the respondent/tenant. Respondent/tenant is directed to handover vacant and peaceful possession to the petitioner/landlord within a period of 30 days from today. Respondent/tenant shall pay entire arrears of rent/damages due from November 2006 @ Rs.100/- per month to the landlord/petitioner, within two months. Any amount deposited by the respondent/tenant u/s 30(1) of the Act No.13 of 1972 shall be adjusted. 12. No order as to costs.