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2020 DIGILAW 376 (ALL)

Anju Srivastav v. Saurabh Birla

2020-02-04

SARAL SRIVASTAVA

body2020
JUDGMENT : Saral Srivastava, J. It is informed by Sri Atul Dayal, learned Senior Counsel for the respondents that respondent No. 2 has expired on 2.2.2020, however, he submits that respondent No. 1 is the son and legal heir of Nitish Kumar Birla, respondent No. 2 and he is already impleaded in present revision as respondent No. 1, therefore, no substitution of respondent No. 2 is required and the Court may proceed with the matter. In view of the statement of Sri Atul Dayal, learned Senior Counsel, the Court proceeds to hear the present revision with the consent of Counsel of both the parties. Order on SCC Revision: 1. Heard learned Counsel for the revision-applicant and Sri Atul Dayal assisted by Sri Ayush Khanna, Advocate. 2. The respondents/plaintiff instituted SCC Suit No. 8 of 2018 (Sri Saurabh Birla and others v. Smt. Anju Srivastava) contending inter alia that respondent No. 1 (Saurabh Birla) is the owner of Flat No. 32-B/T, Third Floor, Dhakre Enclave Dhaulpur House, M.G. Road, Agra. The respondent No. 2 (Nitish Kumar Birla) was managing the aforesaid flat on behalf of respondent No. 1 as caretaker. The respondent No. 2 let out half portion of the above flat towards northern side (hereinafter referred to as 'suit property') to the revision-applicant (hereinafter referred as 'applicant') at Rs. 6,500/- per month for 11 months commencing from 1.7.2014 to 31.5.2015. The tenancy was, thereafter, extended for a further period of 11 months commencing from 1.6.2015 to 31.4.2016 at the agreed rent of Rs. 7,200/- per month between the parties. After 31.4.2016, the tenancy was allowed to continue further w.e.f. 1.5.2016 to 31.3.2017 at the agreed rent of Rs. 8,000/- per month. The applicant was also liable to pay other taxes, electricity charges and society charges. The applicant had paid rent at Rs. 8,000/- per month upto May, 2016. However, the rent from 1.6.2016 onwards was not paid by the applicant. 3. The respondents asked the applicant to pay arrears of rent and taxes, but she on one pretext or the other avoided the payment of rent. However, the applicant made payment of Rs. 35,000/- through cheque in March, 2017. Thus, rent of Rs. 1,01,000/- from 1.6.2016 upto 31.10.2017 was due after adjustment of Rs. 35,000/- paid by the applicant in March, 2017 besides the taxes and other charges on the suit property. 4. However, the applicant made payment of Rs. 35,000/- through cheque in March, 2017. Thus, rent of Rs. 1,01,000/- from 1.6.2016 upto 31.10.2017 was due after adjustment of Rs. 35,000/- paid by the applicant in March, 2017 besides the taxes and other charges on the suit property. 4. The respondents in the aforesaid circumstances served a notice dated 27.11.2017 through Sri Navin Kumar Gupta, Advocate by speed post/A.D. to the applicant terminating the tenancy of the applicant. The respondent by the said notice asked the applicant to vacate the suit property and pay entire arrears of rent and taxes till the delivery of actual physical possession of the suit property to the respondents. The aforesaid notice was duly served upon the applicant, but she failed to comply with the same. As the rent of the suit property was above Rs. 2,000/-, therefore, according to the respondents, the suit property was exempted from U.P. Act No. 13 of 1972. In the aforesaid backdrop, respondents prayed for a decree of ejectment and recovery of arrears of rent and mesne profits together with 18% interest. 5. The record of the case reveals that the suit was instituted on 30.1.2018 and notice was issued to the applicant. She filed vakalatnama on 8.3.2018 and obtained copy of plaint on 16.4.2018. Thereafter, she did not appear on the date fixed in the suit on 20.4.2018, 4.5.2018, 11.5.2018, 18.5.2018, 23.7.2018 and 6.8.2018 nor filed the written statement. 6. The Judge Small Causes Court No. 1, Agra, (hereinafter referred to as 'Trial Court') on 6.8.2018 granted last opportunity to the applicant to file written statement, despite that the applicant continued to remain absent on 29.8.2018 and 11.9.2018 which were the date fixed in the aforesaid suit. The Trial Court passed an order on 11.9.2018 to proceed ex parte in the suit. The applicant, thereafter, did not appear before the Trial Court on the date fixed in the suit on 25.9.2018, 16.10.2018, 19.11.2018, 10.12.2018, 19.12.2018, 16.1.2019 and 20.2.2019. 7. The applicant filed an application 19-Ga on 26.2.2019 praying for setting aside the order dated 11.9.2018 by which Trial Court directed the suit to proceed ex parte. After filing application 19-Ga, the applicant again did not appear on 20.4.2019, 8.5.2019 and 3.7.2019 before the Trial Court. 7. The applicant filed an application 19-Ga on 26.2.2019 praying for setting aside the order dated 11.9.2018 by which Trial Court directed the suit to proceed ex parte. After filing application 19-Ga, the applicant again did not appear on 20.4.2019, 8.5.2019 and 3.7.2019 before the Trial Court. As the applicant did not appear on several dates fixed in the suit after the filing of application 19-Ga, therefore, the Trial Court by order dated 3.7.2019 dismissed the application 19-Ga. 8. The Revision-applicant, thereafter, filed an application 22-Ga for setting aside the order dated 3.7.2019 which was rejected by the Trial Court by order dated 2.9.2019 with liberty to the applicant to remain present on the date fixed in the suit and to cross-examine the plaintiff's witnesses and also to argue the matter. 9. It appears that the applicant after about one month and 19 days from the date of order dated 2.9.2019 appeared before the Court below and filed an application on 21.10.2019 for adjournment of the suit on the ground that she had filed a revision against the order dated 2.9.2019 rejecting application 22-Ga and order dated 3.7.2019 rejecting application 19-Ga. 10. On the application of the applicant, the suit was adjourned to 31.10.2019 for ex parte hearing. The applicant did not appear before the Court below to argue the matter nor filed any application to bring on record that she has preferred revision before the High Court against the order dated 3.7.2019 and 2.9.2019. The Court below, accordingly, proceeded ex parte and decreed the Suit on 5.11.2019. The judgment and decree dated 5.11.2019 is impugned in the present revision. 11. Challenging the ex parte judgment and order dated 5.11.2019, the only contention advanced by learned Counsel for the applicant is that the applicant has paid the agreed rent at the rate of Rs. 6,500/- per month, hence, there was no default in payment of rent. He further submits that there was no agreement between the parties for enhancement of rent periodically, therefore, the basis of the notice terminating the tenancy given by respondents that the rent of the suit property was Rs. 8,000/- per month with effect from 1.5.2016 and the applicant had defaulted in payment of rent is wrong and incorrect. Thus, the submission is that the Trial Court has erred in decreeing the suit. 12. 8,000/- per month with effect from 1.5.2016 and the applicant had defaulted in payment of rent is wrong and incorrect. Thus, the submission is that the Trial Court has erred in decreeing the suit. 12. Per contra, learned Counsel for the respondents submits that it is not in dispute that provision of U.P. Act No. 13 of 1972 is not applicable over the suit property and the notice under section 106 of the Transfer of Property Act, 1882 was served upon the applicant, perusal of which clearly elucidates the intention of the lessor/owner of the suit property to terminate the tenancy, therefore, the tenant is liable for eviction even if there is no default in payment of rent. Thus, the submission is that once the notice terminating the tenancy meets the requirement of section 106 of Act, 1882, the issue of default in payment of rent is not material. Accordingly, he submits that the Trial Court has not committed any illegality or jurisdiction error in decreeing the suit. In support of the aforesaid submissions, he has placed reliance upon the judgments of this Court in the case of Sunita Gupta (Smt.) v. Prabhat Chandra Tandon; 2010 (81) ALR 175 Smt. Prakash Rani @ Prakashwati v. VIth Additional District Judge, Bulandshahr and others; 2005 (61) ALR 865 and Waqf Allal Aulad/Waqf Alkhair Allahtala, Dr. Ziaul Haq v. Ist A.D.J., Bijnor and another. 2009 (74) ALR 532 13. He further submits that the respondents have proved their case by leading cogent evidence that the notice terminating the tenancy was valid and in the absence of any evidence filed by the applicant rebutting the evidence of the respondent, the Trial Court has not committed any illegality or jurisdictional error in decreeing the suit. He further submits that the finding of the Trial Court that the respondents have proved their case is based upon proper evidence on record and thus, being a finding of fact is not liable to be interfered with by this Court in exercise of its revision jurisdiction. 14. I have considered the rival submissions of the parties and perused the record. 15. In the present case, the respondents/landlord had given a notice dated 27.11.2017 through their Counsel Sri Navin Kumar Gupta by speed post/A.D. which was duly served upon the applicant. 14. I have considered the rival submissions of the parties and perused the record. 15. In the present case, the respondents/landlord had given a notice dated 27.11.2017 through their Counsel Sri Navin Kumar Gupta by speed post/A.D. which was duly served upon the applicant. The notice as well as service of notice upon the applicant was duly proved by respondents/landlord by filing affidavit of respondent No. 2, Nitish Kumar Birla. The applicant has not denied the service of notice terminating the tenancy. It would be apposite to refer few paragraphs of the notice dated 27.11.2017 which clearly shows the intention of the respondents/landlord to terminate the tenancy of the applicant: ".... 7. That you have paid rent @ 8,000/- per month only for the month of May, 2016. Rent became due from you in respect of the property in question for the period 1.6.2016 onwards. My client Shri Nisheeth Kumar Birla repeatedly asked you to clear the arrears of rent and also to pay the taxes as claimed above but you dilly-dallied the matter and paid Rs. 35,000/- only through Cheque in March, 2017. 8. That for the period 1.6.2016 upto 30.6.2017 Rs. 1,04,4000/- became due against you towards arrears of rent besides taxes. After adjusting Rs. 35,000/- paid by you in March, 2017, Rs. 69,000/- towards arrears of rent besides taxes still remain due against you in respect of the property in question which you have not paid despite repeated reminders of my client Shri Nisheeth Kumar Birla. Rent and taxes from 1.7.2017 till date have also became due against you. 9. That you are also not paying electricity dues in respect of the electric connection which is in your use and electricity dues for several months have accumulated against you. 10. That in the above circumstances my client does not want to continue your tenancy in respect of the property in question and the same is hereby terminated. Property in question is exempt from U.P. Act 13, 1972. 11. That at present the property in question can easily be let out at the rent of Rs. 12,000/- per month. 12. That earlier my client sent a similar notice dt. 5.7.2017 to you but you managed to return the same in collusion with the postman. Property in question is exempt from U.P. Act 13, 1972. 11. That at present the property in question can easily be let out at the rent of Rs. 12,000/- per month. 12. That earlier my client sent a similar notice dt. 5.7.2017 to you but you managed to return the same in collusion with the postman. I, therefore, call upon you to vacate the property in question, delivering its actual vacant possession to my client Shri Nisheeth Kumar Birla just after the expiry of 30 days from the service of this notice upon you clearing within the aforesaid period the entire arrears of rent and taxes as claimed above. In case of non-compliance of this notice, my clients shall be constrained to file a suit against you for your ejectment from the property in question and for recovering from you the entire arrears of rent and taxes together with interest thereon @ 18% per annum. In case such suit is filed, you shall also be liable to pay mesne profits @ Rs. 12,000/- per month and you shall also be saddled with all the costs and consequences of such suit." 16. It is admitted on record that rent of the suit property is more than Rs. 2,000/- and, therefore, provisions of U.P. Act No. 13 of 1972 are not applicable. 17. This Court in the cases relied upon by the learned Counsel for the respondents has held that where the suit property is out of the purview of U.P. Act No. 13 of 1972 and a valid notice showing the intention of the landlord to terminate the tenancy has been served upon the tenant, the issue of default in payment of rent is immaterial and the tenant is liable for eviction. Paragraphs 5 and 6 of the judgment of Sunita Gupta (Smt.) (supra) are extracted hereinbelow: "5. Heard the learned Counsel for the parties and perused record. It is not in dispute that there is a relationship of landlord and tenant between the parties and the monthly rate of rent in respect of the disputed shop is Rs. 2,500/-. This being so, the provisions of the U.P. Act No. 13 of 1972 are not applicable. The learned Counsel for the applicant could not point out any legal infirmity in the notice given under section 106 of the Transfer of Property Act. 6. 2,500/-. This being so, the provisions of the U.P. Act No. 13 of 1972 are not applicable. The learned Counsel for the applicant could not point out any legal infirmity in the notice given under section 106 of the Transfer of Property Act. 6. The learned Counsel for the applicant could submit only this much that the property in dispute was sublet due to financial crisis and now, the sub tenant has been removed from the property in dispute. Be that as it may, in view of the fact that the provisions of the U.P. Act No. 13 of 1972 are not applicable and there is no illegality in the notice terminating the tenancy, I do not find any good ground to interfere in the revision. No. other point was pressed. The revision lacks merit and it is dismissed summarily". 18. This Court in the case of (Smt.) Prakash Rani @ Prakashwati (supra) held that if provisions of U.P. Act No. 13 of 1972 is not applicable over the suit property, then even if there is no default in payment of rent, the suit for eviction is liable to be decreed provided a valid notice terminating the tenancy has been served upon the tenant. Paragraph 5 of the judgment is extracted hereinbelow: "5. However, as far as the judgment of the Revisional Court in tenant's revision (S.C.C. Revision No. 19 of 1990) is concerned, I find that the said judgment is clearly erroneous in law. The Revisional Court in Para 10 of its judgment clearly field that there was absolutely no dispute that provisions of U.P. Act No. 13 of 1972 were not applicable on the building in dispute. However, the Revisional Court has held that as at the time of giving notice tenant was not defaulter, hence his tenancy could not be terminated. This view is clearly erroneous in law. If U.P. Act No. 13 of 1972 is not applicable, then suit for eviction is liable to be decreed after termination of tenancy, without there being any default in payment of rent or any other ground. For termination of tenancy it is not at all necessary that the tenant must be defaulter. Month to month tenancy is terminable by one month's notice under section 106 of the Transfer of Property Act. For termination of tenancy it is not at all necessary that the tenant must be defaulter. Month to month tenancy is terminable by one month's notice under section 106 of the Transfer of Property Act. It has not been found by the Revisional Court that there was any agreement in between the parties against termination of tenancy by one month's notice." 19. Paragraph 6 of the judgment in the case of Waqf Allal Aulad/Waqf Alkhair Allahtala, Dr. Ziaul Haq (supra) is also relevant in the context of the present case and thus, is extracted hereinbelow: "6. If Rent Control Act does not apply, then tenant is liable to eviction simply after termination of tenancy. Default or no default is wholly immaterial. Revisional Court itself held that building in dispute belonged to Waqf-allal-aulad and was beyond the purview of U.P. Act No. 13 of 1972. Thereafter, there was absolutely no sense in holding that the notice of termination of tenancy was invalid on the ground that tenant was not defaulter when notice was given. The view taken by the lower Revisional Court is quite strange and utterly untenable. Even if Rent Control Act applies and in the notice wrong period of default and wrong rate of rent is mentioned, still notice does not become invalid vide Full Bench authority of Gokaran Singh v. Ist Additional District and Sessions Judge, Hardoi and others. 2000 (40) ALR 405 20. In the present case, learned Counsel for the applicant has failed to point out any illegality in the notice dated 27.11.2017 terminating the tenancy. A perusal of the notice dated 27.11.2017 makes it amply clear that there was clear intendment of the respondents/landlord to terminate the tenancy of the applicant. In this view of the fact and in the light of the ratio laid down by this Court in aforesaid judgments, this Court finds that the Trial Court has not committed any jurisdictional error in decreeing the suit. 21. The contention of the counsel for the applicant that there was no rent due is also belied from the averments made in paragraph 15 of the affidavit of the applicant in the present revision wherein she has stated that the rent is due from April, 2007 onwards. Paragraph 15 of the affidavit is extracted hereinbelow: "15. That, the rent from April, 2017 to onwards at the rate of Rs. Paragraph 15 of the affidavit is extracted hereinbelow: "15. That, the rent from April, 2017 to onwards at the rate of Rs. 6,500/- per month is only due." 22. Further, it is the case of the respondent that the suit property was let out for eleven months commencing from 1.7.2014 to 31.5.2015. The tenancy was, thereafter, extended for a further period of 11 months commencing from 1.6.2015 to 31.4.2016 at the agreed rent of Rs. 7,200/- per month between the parties. After 31.4.2016, the tenancy was allowed to continue further w.e.f. 1.5.2016 to 31.3.2017 at the agreed rent of Rs. 8,000/- per month. The fact that the rent has been periodically enhanced and the rent of the suit property was Rs. 8,000/- from 1.5.2016 was proved by the respondent by filing the affidavit of Nisheeth Kumar Birla. The applicant did not rebut the affidavit of Nitish Kumar Birla nor cross-examined him despite permitted by the Trial Court to cross-examine the witnesses, hence, this Court finds that the Trial Court has not committed any illegality in awarding Rs. 1,25,000/- towards arrear of rent treating the rent of the suit property to be Rs. 8,000/- per month from 1.5.2016. 23. It is also worth to notice that the applicant had adopted all dilatory tactics to delay the disposal of the suit inasmuch as she did not appear on the several dates fixed by the Trial Court in the suit nor she did chose to file written statement despite several opportunities granted by the Trial Court. 24. The insincere approach of the applicant in contesting the suit is also evident from the fact that the applicant filed an application 19-Ga under Order IX, Rule 7 of C.P.C. to recall the order of the Trial Court to proceed ex parte, but she did not appear on several dates to argue the said application which led the Trial Court to pass the order dated 3.7.2019 dismissing the application 19-Ga in her absence. The applicant, thereafter, filed application 22-Ga on 14.8.2019 to recall the order dated 3.7.2019 which was dismissed by the Trial Court granting liberty to the applicant to participate in the hearing of the case, yet the applicant sought adjournment of the case on 31.10.2019 on the false ground that she had filed revision against the order dated 2.9.2019 before the High Court, whereas the revision was filed on 19.12.2019 with delay condonation application. From the aforesaid fact, it is manifest that the conduct of the applicant in contesting the suit was mischievous which disentitles her for any relief from this Court in exercise of its revision jurisdiction. 25. The applicant has used the suit property without paying rent, therefore, the Trial Court has not committed any jurisdictional error in awarding damages at the rate of Rs. 12,000/- per month higher than the rent of the suit property from the date of institution of the suit till the delivery of possession of the suit property to the respondent. In this regard, it would be apt to refer paragraphs 10 and 11 of the judgment of this Court in the case of Food-Corporation of India and another v. M/s. Durga Shakti Enterprises,: 1996 (27) ALR 605 which are being extracted hereinbelow: "10. The last contention has been that the mesne profits at the rate of Rs. 35,000 per month could not be granted by the Court below. It was contended that mesne profits exceeding the agreed rate of rent cannot be granted. In support of this contention the case of Mahesh Lalwani v. Sardar Uttam Singh, 1987 (13) ALR 362 (LB) was referred. In this case it was held that the damages for occupation of premises under tenancy should be equal to such amount which the plaintiff was realising as rent of the premises from the defendant. No excess amount could be awarded by way of penalty, even though the premises is not governed by the Rent Control Act. However, from the side of the opposite party, the decision of the Hon'ble Supreme Court in Shyam Charan v. Sheoji Bhai, AIR 1977 SC 2270 : 1978 (4) ALR 8 (Sum) was cited and it was argued that in view of this decision damages can be awarded at enhanced rate. In view of this decision of the Hon'ble Supreme Court, Single Judge decision of this Court cannot be followed by another Single Judge of the same Court. It is, therefore, clear from the pronouncement of the Hon'ble Supreme Court that the damages can be awarded at the enhanced rate. 11. In this case mesne profits were claimed at the rate of Rs. 6,000/- per month as against the agreed rate of Rs. 1,600/-. The Hon'ble Supreme Court confirmed the award of mesne profits at the rate of Rs. 4,000/- per month." 26. 11. In this case mesne profits were claimed at the rate of Rs. 6,000/- per month as against the agreed rate of Rs. 1,600/-. The Hon'ble Supreme Court confirmed the award of mesne profits at the rate of Rs. 4,000/- per month." 26. For the reasons given above, this Court finds that Trial Court has not committed any illegality or jurisdictional error in decreeing the suit. Consequently, the revision lacks merit and is, accordingly, dismissed with no order as to cost.