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2022 DIGILAW 2015 (ALL)

Shakuntala Soni v. Devendra Kumar Rawat

2022-12-20

UMESH CHANDRA SHARMA

body2022
JUDGMENT : UMESH CHANDRA SHARMA, J. 1. This civil revision has been preferred by the tenant defendant against the order dated 29.05.2012 passed by ADJ, Court No. 1, Banda by which the plaintiff’s suit was decreed on merit after striking off the written statement of the defendant. 2. In brief facts of the case are that revisionist Smt. Shakuntala Soni plaintiff filed an SCC suit in the Court of Judge, SCC Court, Banda on 04.11.2009 for eviction of the defendant tenant from the shop in suit and for realization of rent from 04.11.2006 to 17.12.2006 at the rate of Rs. 650/- per month amounting Rs. 958/- and for damages for use and occupation of the shop in suit since 18.12.2006 to 03.11.2009 at the rate of Rs. 22.990/- and also for the payment of water tax and house tax at the rate of Rs. 84/- per month each since 04.11.2006 to 03.11.2009 alongwith Rs. 500/- as expenses for notice. 3. In brief facts of the case are that the plaintiff is the owner and land-lord of a shop at first floor in Shri Ram Market, Chowk Bazar City Banda in which defendant was the tenant since December, 2004 at the monthly rate of rent of Rs.550/- as per condition since 2005 the rate of rent became Rs.650/- per month which had to be increased Rs.100/- per month after every 5 years. 4. There was dues arrears of rent on the defendant from July, 2004 to December, 2004 for six months at the monthly rate of Rs. 500/- amounting to Rs.3,00/- and since January, 2005 to October, 2006 at the rate of Rs. 650/- per month amounting to Rs. 14,300/- and also water tax since 2004 to 2006 at the rate of Rs. 1012/- per year amounting to Rs. 3036/- and house tax from the year 2004 to 2006 at the rate of Rs. 675/- per year. The tenancy was month to month and the provisions of UP Act No. 13 of 1972 were not applicable in spite of the repeated request and demand, the defendant did not pay the rent. Hence, a registered notice through advocate Ashutosh Nigam was sent on 07.11.2006 under Section 106 of Transfer of Property Act to the defendant and a demand was made to repay the rent and house tax and water tax by the said notice. The tenancy was also terminated after 30 days. Hence, a registered notice through advocate Ashutosh Nigam was sent on 07.11.2006 under Section 106 of Transfer of Property Act to the defendant and a demand was made to repay the rent and house tax and water tax by the said notice. The tenancy was also terminated after 30 days. The registered notice was served upon the defendant on 16.11.2006. In spite of service of notice neither the defendant paid the rent, water tax and house tax nor vacated and delivered the possession to the plaintiff. Since 17.12.2006 the defendant lost the character to be tenant. The plaintiffs are entitled to receive the aforementioned rent, damages and tax amount and a decree of eviction. 5. The defendant tenant has filed written statement denying the allegations of the plaint alongwith the affidavit. A copy of the order dated 12.08.2010 is on record which shows that application 21(c) moved by the plaintiff was allowed and the defence of the defendant was struck off on account of non-deposition of admitted rent in the court. The deposit made under Section 30 of the UP Act No. 13 of 1972 was not accepted by the court because defendant appeared in the court and filed written statement on 03.04.2010 but she had not deposited the admitted rent, therefore, Order XV Rule 5 CPC played the role which is as under: “5. Striking off defence for failure to deposit admitted rent: (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent. per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or monthly mount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike of his defence. Explanation 1: The expression “first hearing” means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2: The expression “entire amount admitted by him to be due” means the entire gross amount whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, deposited in any Court. Explanation 3: (1) The expression “monthly amount due” means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making on other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. (2) Before making an Order for striking off defence, that Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1) as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provide further that if the amount deposited includes any sums claimed by the depositor to be deductible or any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.” 6. The revisionist has taken grounds that since her residential house was sealed/attached in the year 2005 hence she could not produce the receipt of payment of rent. There was no arrears of rent from the year 2004 but the rent had been paid till July, 2006 and the land-lord refused to accept the rent from August, 2006. After refusal the payment of rent was sent through money order but it was returned with the endorsement “not found out of station.” It amounts to refusal. There was no arrears of rent from the year 2004 but the rent had been paid till July, 2006 and the land-lord refused to accept the rent from August, 2006. After refusal the payment of rent was sent through money order but it was returned with the endorsement “not found out of station.” It amounts to refusal. Application of the revisionist under Section 30 was illegally dismissed even after knowing the pendency of proceedings under Section 30 the plaintiff deliberately did not contest the same. Court below erred in law in assuming the date 01.12.2009 to be the first date of hearing when adjournment application was moved for filing written statement in future. The said date could not be treated as the first date of hearing and the lower court erred in law in striking off the defence. The revisionist never defaulted in payment of rent. The notice dated 07.11.2006 is liable to be waived as in August, 2006 the payment of rent was sent through money order. If the application under Section 30 would have been allowed to deposit the rent in the court there would not have been arrears of rent due upon the revisionist defendant. The suit is barred by limitation and no decree could have been granted by the court below. There was no water connection hence the court below erred in decreeing the arrears of water tax hence the revision be allowed and the impugned order be set aside. 7. In this case the first date of hearing was 01.12.2009 on that date defendant appeared and applied for time to file written statement. On 23.12.2009, 19.01.2010, 08.02.2010, 04.03.2010 and 27.03.2010 the case was adjourned and the written statement was filed on 03.04.2010. Even after filing an application under Order XV Rule 5 CPC. 8. The Court noted that on 15.04.2010 the defendant had not deposited the admitted rent but the defendant has stated in her objection 30(c) that the plaintiffs were not interested in receiving the rent as they refused to receive the rent. Consequently she sent money order on 12.11.2006 which was returned with false report. According to her she had also moved an application for deposit of the rent before the Civil Judge (Junior Division) which was rejected and the revision was also rejected by the ADJ-II on 27.08.2009. After that this SCC suit was filed. Consequently she sent money order on 12.11.2006 which was returned with false report. According to her she had also moved an application for deposit of the rent before the Civil Judge (Junior Division) which was rejected and the revision was also rejected by the ADJ-II on 27.08.2009. After that this SCC suit was filed. It was noticed by the court that the defendant was continuously attending the court but she did not comply with the provisions of Order XV Rule 5 CPC. 9. Besides accepting the judicial precedents Ashik Ali vs. 8th ADJ, 2001 (444) ALR 524. The trial court relied on the precedent Pradyuman Ji vs. Special/ADJ, Ballia and Others, 2008 (2) ARC 19 in which it was held that on the first date of hearing if the tenant did not deposit the entire amount admitted by him, his defence should be struck off under Order XV Rule 5 CPC and deposit under Section 30(1) cannot be taken into consideration for the purpose of deposit to be made under second part of Order XV Rule 5 CPC. The trial court has also relied on judicial precedent Kailash Shukla vs. ADJ, Deoria and Others, 2004 (1) ARC 615 in which similar principles have been laid down. 10. Since this order remain intact hence the written statement filed by the defendant was not considered and the defendant was not permitted to adduce the evidence though she was permitted to cross-examine the plaintiff’s witness and to advance the argument. Since no written statement was available in the eyes of law hence the trial court has not framed the points for determination though it has discussed the necessary aspect of the case. 11. In this case the tenancy is admitted. The plaintiff has proved the notice, registry receipt and acknowledgement. Since the defence of the defendant has been struck of, therefore, the averments of the written statement would not be considered and would not be taken into consideration. 12. From the order dated 12.08.2010 it is established that the defendant had not deposited the admitted rent in the court and it is established law that the deposits under Section 30(1) would not be considered for the purposes of this suit. More so, the application of the defendant tenant under Section 30 has been dismissed and its revision has also been dismissed. 13. More so, the application of the defendant tenant under Section 30 has been dismissed and its revision has also been dismissed. 13. PW-1, Devendra Kumar Rawat has proved the case and his testimony is un-rebutted. The defendant could not prove that she has paid any rent or other charges. In cross-examination PW-1 has deposed that there are total 7 shops in the house in which there are separate electric connections in all shops. Besides making suggestion which have been denied by the witness even no proper cross-examination has been done from the side of the defendant and whatsoever cross-examination has been done, therefrom the defendant is not getting any benefit. The defendant was miserably failed in establishing its defence and creating any doubt in the case and evidence of the plaintiff land-lord. The trial court has decreed the suit in toto as prayed in the memo of revision the defendant has taken plea that since the residential house of the defendant was sealed since 2005, therefore, she could not produce the receipts of payment of rent. For this neither the court nor the plaintiff are responsible. It does not appear to be a true fact that instead of keeping the records of payment in shop in suit, the same would be kept in the residential house. If it was so, the defendant could have moved an application to direct the plaintiff to produce the counter file of the receipt. Mere sending rent money through money order which could not be received by the plaintiff as he was out of station, it cannot be said that the defendant tried to make the payment in bona fide manner. The defendant should have sent rent amount again or she could have tendered the payment personally. There is no defect regarding dismissal of the application of the defendant under Section 30 of the UP Act No. 13 of 1972. It is established law that deposit under Section 30 would not be taken into consideration for the purposes of SCC suit and it cannot be permitted where the Act No. 13 of 1972 has no applicability. 14. Thus this Court is of the view that the order passed by the trial court does not suffer from any infirmity. The revision lacks merit and is liable to be dismissed. ORDER: 15. This revision is dismissed with costs.