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2020 DIGILAW 210 (ALL)

Nand Lal Keshari v. Shashi Bhushan Agarwal

2020-01-20

SURYA PRAKASH KESARWANI

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JUDGMENT : 1. Heard Sri K.N. Rai, learned counsel for the defendant / tenant / petitioner and Smt. Rajni Ojha, learned counsel for the plaintiff / landlord / respondent. 2. Necessary requirement to invoke Section 20(2)(a) of U.P. Act No. 13 of 1972 is the main question involved in the present petition. Facts 3. Undisputably, the plaintiff - respondent is the owner and landlord of the disputed shop of which the defendant - petitioner is the tenant at a monthly rent of Rs. 200/- since 15.10.1982. The plaintiff - respondent filed a P.A. Case No. 03 of 2001 (Sashi Bhushan Agarwal Vs. Nand Lal Keshari) under Section 21(1)(a) of U.P. Act No. 13 of 1972 which was dismissed by the Prescribed Authority / Civil Judge (Junior Division), East, Ballia on 28.2.2007 on the ground that the plaintiff - respondent failed to prove his bonafide need for the disputed shop. The said order of the Prescribed Authority has attained finality. 4. Subsequently, the plaintiff - respondent issued a notice dated 13.5.2014 by registered post to the defendant / tenant / petitioner for eviction of the disputed shop on the ground of default in payment of rent since 1.7.2011. This notice was served upon the defendant - petitioner by refusal on 16.5.2014. Since, the arrears of rent as demanded was not paid by the defendant - petitioner, therefore, the plaintiff / landlord / respondent filed SCC Suit No. 03 of 2014 which has been decreed by the impugned judgment dated 5.2.2019 passed by the Court of Civil Judge (Senior Division), Ballia. Aggrieved with this judgment, the defendant / tenant / petitioner filed SCC Revision No. 01 of 2019 which has been dismissed by the impugned judgment dated 29.7.2019 passed by the Court of District Judge, Ballia. Aggrieved with these two judgments, the defendant / tenant / petitioner has filed the present petition under Article 227 of the Constitution of India. Submissions 5. Learned counsel for the petitioner submits as under:- (i) Since, the plaintiff - respondent refused to accept the rent from July 2011, therefore the defendant / tenant / petitioner started depositing it in Misc. Case No. 65 of 2011 under Section 30(1) of the U.P. Act No. 13 of 1972. He deposited the rent in that Misc. Case for the period till March, 2014. Case No. 65 of 2011 under Section 30(1) of the U.P. Act No. 13 of 1972. He deposited the rent in that Misc. Case for the period till March, 2014. (ii) Thus, as on the date of notice i.e. 13.5.2014, the rent for four months was not in arrears, inasmuch as the rent upto the period March, 2014 was deposited under Section 30(1) of the Act. Therefore, the notice determining the tenancy on account of default in payment of rent invoking the provisions of Section 20(2)(a) was itself bad. (iii) Under the facts and circumstances, both the Courts have committed a manifest error of law to hold that the defendant / tenant / petitioner defaulted in payment of rent and was liable to eviction on the ground mentioned in Section 20(2)(a) of the Act. (iv) Apart from above, the defendant - tenant deposited the entire amount pursuant to the order of the Judge, Small Cause Court dated 4.4.2018 passed on application for deposit dated 25.2.2015. Therefore, the defendant / tenant / petitioner is entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972. 6. In support of his submission, learned counsel for the defendant - petitioner has relied upon a judgment of Hon'ble Supreme Court in Harcharan Singh Vs. Smt. Shivrani & others) 1981 (2) SCC 535 (paragraphs 23 to 31) . 7. Learned counsel for the plaintiff - respondent submits as under:- (i) The plaintiff - respondent supports the impugned judgments. The rent deposited by the defendant / tenant under Section 30(1) of the Act is not a valid deposit as both the Courts below have found that the plaintiff - respondent has not refused to accept the rent for the months of July and August, 2011. (ii) The defendant / tenant / petitioner completely failed to establish refusal by the plaintiff - respondent to receive the rent. That a part, the aforesaid Misc. Case No. 65 of 2011 was dismissed for non prosecution on 1.2.2014. The restoration application being Misc. Case No. 17 of 2014 was also rejected on 17.2.2017 by the concerned Court. The notice for default in payment of rent was issued by the plaintiff - respondent on 13.5.2014 which was served on 16.5.2014 and the SCC Suit was filed on 7.7.2014. The restoration application being Misc. Case No. 17 of 2014 was also rejected on 17.2.2017 by the concerned Court. The notice for default in payment of rent was issued by the plaintiff - respondent on 13.5.2014 which was served on 16.5.2014 and the SCC Suit was filed on 7.7.2014. Thus, as on the date of notice, the defendant / tenant / petitioner was in arrears of rent since July, 2011. 8. In support of her submission, she relied upon a judgment of this Court in Arun Kumar & others Vs. Thakur Ji Maharaj 2001 (43) AllLR 74 (paragraph 6) and another judgment of this Court dated 30.8.2017 in Matters Under Article 227 Number 4290 of 2017 (Smt. Kalawati Vs. Deen Dayal Sharma Paragraphs 7 & 17). Discussion and Findings 9. Section 20(2)(a) of the U.P. Act No. 13 of 1972 provides as under:- “A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand: Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year".” 10. Thus as per aforequoted provisions of Section 20(2)(a) of the U.P. Act No. 13 of 1972, a landlord acquires right to institute a suit for eviction of a tenant from a building after determination of his tenancy if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Thus to institute a suit on the ground of eviction as provided in clause (a) of sub-section 2 of Section 20, there are two mandatory requirements which both have to be fulfilled: (i) the tenant is in arrears of rent for not less than four months (ii) the tenant has failed to pay the said arrears to the landlord within one month from the date of service upon him of a notice of demand. 11. Undisputably, the SCC Suit No. 03 of 2014 was filed by the plaintiff - respondent on 7.7.2014 for eviction of the petitioner - tenant on the ground under Section 20(2)(a) of the U.P. Act No. 13 of 1972. At internal pages 10 & 11 of the impugned judgment dated 29.7.2019 in SCC Revision No.01 of 2019 passed by the District Judge, Ballia, it has been mentioned that the petitioner - tenant filed receipts of rent deposit in Misc. Case No. 65 of 2011 for the period from July 2011 to March 2014. This, deposit of rent in Misc. Case No. 65 of 2011 for the period from July 2011 to March 2014 is undisputed. 12. The aforesaid Misc. Case No. 65 of 2011 was dismissed for non prosecution on 1.2.2014. A restoration application being Misc. Case No. 17 of 2014 was filed by the petitioner - tenant in which the plaintiff - respondent has filed an objection on 31.1.2015 mentioning the institution of SCC Suit No. 03 of 2014. Thus, the plaintiff - respondent was well aware of the fact that rent was being deposited by the petitioner - tenant in Misc. Case No. 65 of 2011 and rent for the period from July 2011 to March 2014 was deposited in the said Misc. Case. 13. According to the plaintiff - respondent, the notice for eviction was sent by him to the petitioner - tenant on 13.5.2014 which is said to have been served upon the petitioner - tenant by refusal. Case No. 65 of 2011 and rent for the period from July 2011 to March 2014 was deposited in the said Misc. Case. 13. According to the plaintiff - respondent, the notice for eviction was sent by him to the petitioner - tenant on 13.5.2014 which is said to have been served upon the petitioner - tenant by refusal. It is undisputed that in SCC Suit No. 03 of 2014, the petitioner - tenant, on the first date of hearing i.e. 25.2.2015, filed an application / representation 15-Ga2 under Order 15 Rule 5 CPC for depositing the entire amount of rent and the said application was allowed by the Civil Judge (Senior Division), Ballia by order dated 4.4.2018 and the entire amount of rent for the period from April 2014 to March 2018 was deposited by the petitioner - tenant with interest @ 9% within the time granted by the Court of Civil Judge (Senior Division), Ballia. 14. From the facts mentioned above, it was well proved by the petitioner - tenant that as on the date of institution of SCC Suit No. 03 of 2014 i.e. on 7.7.2014, the rent stood deposited upto the month of March 2014 in Misc. Case No. 65 of 2011. Thus, as on the date of institution of SCC Suit No. 03 of 2014 on the ground mentioned in clause (a) of sub-section 2 of Section 20 of the U.P. Act No. 13 of 1972, the petitioner - tenant was not in arrears of rent for a period of four months or more. Therefore, the suit itself was not maintainable. The findings recorded by both the Courts below on the point of default in payment of arrears of rent for more than four months as on the date of institution of the SCC Suit No. 03 of 2014, is perverse and contrary to evidences on record. 15. In Mahmood Khan Vs. IIIrd Additional District Judge, Ballia & others (1983) 2 ARC 198 (paragraphs 3 & 4), a Bench of this Court held as under:- “3. Having heard learned counsel for the parties, I am of the opinion that the impugned order is manifestly unsustainable in law. As mentioned above, the revisional court has found the petitioner to be in arrears only in respect of one month i.e. July, 1977. Having heard learned counsel for the parties, I am of the opinion that the impugned order is manifestly unsustainable in law. As mentioned above, the revisional court has found the petitioner to be in arrears only in respect of one month i.e. July, 1977. That being so it is obvious that the petitioner was not in arrears for more than four months when the notice of demand dated 10.1.1977 was served on him on 11.1.1977. Section 20(2) (a) was hence entirely inapplicable even on the facts found by the revisional court. 4.Coming to the submission made by the learned counsel for the landlord I find that there is a fallacy in this contention. The default contemplated under Section 20(2)(a) should be in regard to rent for a period of not less than four months. The provision does not say that even if the tenant is in arrears of rent for less than four months he would be liable to be evicted under it on the mere ground that default had continued for more than four months. There is, therefore, no substance in this submission made by the learned counsel for the respondents.” (emphasis supplied) 16. In Ram Singh Vs. Abdul Majeed (2014) 1 ARC 368 (paragraphs 3, 4 & 5), a Bench of this Court held as under:- “3. The approach of Revisional Court is clearly erroneous. The issue was not with respect to benefit of Section 20 (4) of Act, 1972, but it was whether there was any default on the part of petitioner. When petitioner has validly deposited rent in the Court under Section 30 (1) of Act, 1972, the law presumes that such deposit amounts to payment of rent to landlord and that being so, there was no default on the part of petitioner. Hence, SCC Suit itself, for ejectment of petitioner, was not maintainable on the ground of default in payment of rent under Section 20 (2) (a) of Act, 1972. The question of benefit of Section 20 (4) of Act, 1972 does not arise. 4. It is not in dispute that both the Courts below have concurrently held that the monthly rent of accommodation in question was Rs. 40/- and upto December, 1999 it was regularly deposited in the Court under Section 30 (1) of Act, 1972. In view thereof, the judgment of Revisional Court cannot sustain. 5. The writ petition is allowed. 4. It is not in dispute that both the Courts below have concurrently held that the monthly rent of accommodation in question was Rs. 40/- and upto December, 1999 it was regularly deposited in the Court under Section 30 (1) of Act, 1972. In view thereof, the judgment of Revisional Court cannot sustain. 5. The writ petition is allowed. Impugned order of Revisional Court dated 18.11.2005 is hereby set aside and the Trial Court's judgment dated 28.8.1998 is hereby restored and confirmed.” (emphasis supplied) 17. In Dr. Babu Ram Sharma Vs. IVth Additional District Judge, Saharanpur & others (2006) 2 ARC 239 and Noor Mohd. & another Vs. IVth Additional District Judge, Kanpur Nagar & others (2006) 1 ARC 550 , this Court again took the view that when the entire rent due till the date of notice had already been validly deposited under Section 30 of the Act, the notice of demand was bad in law, and therefore, since at the time of notice, tenants were not defaulter in payment of rent for four months or more, the Suit filed on the ground of default was liable to be dismissed. It was held that the Suit for eviction was not maintainable as at the time of notice, the tenant was not defaulter since he had already validly deposited the rent under Section 30 of the Act. It was further held that under the circumstances, the Suit was not maintainable under Section 20(2)(a) of the Act. 18. Learned counsel for the plaintiff - respondent has relied upon a judgment of this Court in Vinay Kumar Agarwal Vs. 17th Additional District Judge, Allahabad (2001) (43) AllLR 700. This judgment does not support the case of the plaintiff-respondent rather it supports the case of the petitioner - tenant. In paragraph 11 of the said judgment, in the case of Vinay Kumar Agarwal (supra), this Court held as under:- “11. Section 20 (2) (a) of the Act clearly provides that a suit for eviction of a tenant can be filed if the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Section 20 (2) (a) of the Act clearly provides that a suit for eviction of a tenant can be filed if the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Notice of demand will be invalid and could not be considered to be a notice of demand under the said provision if the tenant was not in arrears of rent for more than four months . The tenant could not be held to be a defaulter in the eye of law if he was not in arrears of rent for more than four months on the date of the notice.” (emphasis supplied) 19. The judgments of this Court in the case of Arun Kumar & others Vs. Thakurji Maharaj (2001) (43) AllLR 74, Mohammad Azim & another Vs. Gopal Singh (2013) (1) AWC 1023, Ram Kumar Singh Vs. IIIrd Additional District Judge, Ghaziabad (2003) 1 ARC 294 , Haider Abbas Vs. Additional District Judge & others in Writ Petition No. 43734 of 2001 decided on 30.11.2005 and the judgment of Hon'ble Supreme Court in Atma Ram Vs. Shakuntala Rani (2005) 7 SCC 211 relating to Delhi Rent Control Act are distinguishable on facts of the present case. The aforesaid judgments relied upon by the plaintiff - respondent are not on the point of necessary requirement of the ground of eviction under Section 20(2)(a) of the U.P. Act No. 13 of 1972. The relevant judgments as well as the provisions itself, have been well discussed by me in preceding paragraphs. 20. The default contemplated under Section 20(2)(a) should be in regard to rent for a period of not less than four months. The provision does not say that even if the tenant is in arrears of rent for less than four months he would be liable to be evicted under it on the mere ground that default had continued for more than four months. Even notice of demand will be invalid and could not be considered to be a notice of demand under the said provision if the tenant was not in arrears of rent for more than four months. 21. Even notice of demand will be invalid and could not be considered to be a notice of demand under the said provision if the tenant was not in arrears of rent for more than four months. 21. When petitioner has validly deposited rent in the Court under Section 30 (1) of Act, 1972, the law presumes that such deposit amounts to payment of rent to landlord and that being so, there was no default on the part of petitioner. Hence, SCC Suit itself, for ejectment of petitioner, was not maintainable on the ground of default in payment of rent under Section 20 (2) (a) of Act, 1972. 22. For all the reasons aforestated, I hold that the findings recorded by the Courts below for arrears of rent for more than four months as on the date of institution of SCC Suit No. 03 of 2014, is perverse and contrary to the documentary evidences on record. A suit / case on the ground mentioned in Section 20(2)(a) of the U.P. Act No. 13 of 1972 for eviction of a tenant from a building after the determination of his tenancy may be instituted if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Since, admittedly the rent was deposited upto the month of March 2014 and the SCC Suit No. 03 of 2014 was instituted on 7.7.2014, therefore, the petitioner - tenant was not in arrears of rent for four months or more as on the date of institution of the Suit. Therefore, the suit itself was not maintainable. 23. For all the reasons aforestated, the impugned judgments and decree dated 5.2.2019 in SCC Suit No. 03 of 2014 passed by the Court of Civil Judge (Senior Division), Ballia and the impugned judgment dated 29.7.2019 in SCC Revision No. 01 of 2019 passed by the Court of District Judge, Ballia are hereby set aside. The writ petition is allowed. 24. The SCC Suit No. 03 of 2014 is dismissed. No order as to costs.