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2023 DIGILAW 513 (UTT)

Zahir Alam Ansari v. Asma Parveen

2023-09-06

VIVEK BHARTI SHARMA

body2023
JUDGMENT : Vivek Bharti Sharma, J. This revision has been filed against the judgment and decree dated 23.01.2020 passed by Judge, SCC/1st Addl. District Judge, Haldwani in SCC Suit No.12 of 2017, whereby the respondent/plaintiff’s suit for a decree of ejectment and recovery of rent and damages has been allowed against the revisionist/defendant. 2. Brief facts of the case are that respondent/plaintiff filed SCC suit against the revisionist/defendant seeking a decree of ejectment and recovery of rent and damages on the ground of non payment of rent stating inter alia that the respondent/plaintiff is the owner and landlady of the premises in question which is under the tenancy of the revisionist/defendant @ Rs2200/- per month apart from the electricity charges; that, the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), 1972 (hereinafter to be referred as the U.P. Act No.13 of 1972) do not apply to the shop in question; that, the respondent/plaintiff terminated the tenancy of the revisionist/defendant vide a notice dated 27.12.2016 issued under Section 106 of Transfer of Property Act (hereinafter to be referred as the T.P. Act) on the next date following the expiry of 30 days from the service of the notice and demanded the vacant possession of the aforesaid shop; that the said notice dated 27.12.2016 was duly served on the revisionist/defendant on 04.01.2017 and as such the tenancy came to an end on 03.02.2017; that, the revisionist/defendant have been in arrears of rent also since November 2015 and a sum of Rs.30,800/- was also due till 31.12.2016. 3. The revisionist/defendant contested the suit and filed his written statement denying the plaint averments. In additional pleas, the revisionist/defendant contended that he is not the tenant in the disputed shop and an agreement to sell dated 23.09.2014 was executed between the parties with regard to purchase of shop and that the consideration amount has been paid to the respondent/plaintiff for purchase of shop. He further stated that in order to avoid the execution of the sale deed in his favour as per the terms and conditions of the agreement to sell the respondent/plaintiff has instituted the present suit on false facts showing revisionist/defendant to be a tenant @ 2200/- per month whereas the revisionist/defendant was inducted as tenant @ 300/- per month and there was no increase of rent thereafter. He specifically contended that there is no relationship of landlord and tenant between the respondent/plaintiff and revisionist/defendant. 4. On the exchange of pleading of the parties, Judge, SCC framed the following issues:- (i) Whether there exists landlord-tenant relationship between the respondent/plaintiff and revisionist/defendant? (ii) Whether rate of rent of the disputed shop is Rs.2200/- per month and the provisions of U.P. Act No.13 of 1972 are applicable to the disputed shop? (iii) Whether the tenancy of the revisionist/defendant has been terminated vide notice dated 27.12.2016 issued u/s 106 of T.P. Act? (iv) Whether the revisionist/defendant is entitled to get the benefit of Section 20(4) of U.P. Act No.13 of 1972? (v) Whether the respondent/plaintiff is entitled to get the relief claimed for? 5. Thereafter, the parties led their oral and documentary evidence. On the basis of evidence of parties and other material adduced before it, trial court decreed the suit of the respondent/plaintiff vide its judgment dated 23.01.2020. The trial court decided issue no.1 in favour of the respondent/plaintiff and recorded a finding that the revisionist/defendant is tenant in the disputed shop and the landlord-tenant relationship between the respondent /plaintiff stands proved. Issue no.2 regarding rate of rent was decided against the respondent/plaintiff and it was observed that the respondent/plaintiff has not led any evidence so as to substantiate her claim that the rate of rent of the disputed shop is ` 2200/- per month and thus on the basis of evidence observed that the rate of rent is ` 600/-per month and that the provisions of U.P. Act No.13 of 1972 would apply to the disputed shop. Issue no.3 was decided in favour of the respondent/plaintiff and it was held that the tenancy of the revisionist/defendant has been terminated by a valid notice. On issue no.4, the trial court observed that there is no evidence on record to show that the revisionist/defendant has paid any rent to the respondent/plaintiff along with the reply to the notice or has deposited the same on the first date of hearing of the suit or that he deposited the rent in the competent court u/s 30 of the Act. Thus, it was held that the revisionist/defendant is not entitled to get the benefit of Section 20(4) of the U.P. Act No.13 of 1972 and decided this issue against the revisionist/defendant. 6. Heard learned counsel for the parties and perused the entire record. 7. Thus, it was held that the revisionist/defendant is not entitled to get the benefit of Section 20(4) of the U.P. Act No.13 of 1972 and decided this issue against the revisionist/defendant. 6. Heard learned counsel for the parties and perused the entire record. 7. Learned counsel for the revisionist/tenant would submit that the suit was filed by the respondent/landlord for a decree of eviction of the revisionist/tenant on the grounds of non-payment of rent; that, the Judge, Small Causes Court erred in not appreciating the fact that the revisionist/tenant was no more the tenant of respondent/plaintiff as the respondent/plaintiff had entered into an agreement dated 23.09.2014 for consideration of Rs. 4,48,000/- wherefor the respondent/landlord had received Rs. 3,00,000/- and remaining amount was to be paid at later stages on or before the execution of the registered sale deed. He would further submit that the revisionist/tenant in para 4 of his written statement had specifically stated that the revisionist is neither the tenant of the respondent in the property in question nor there is any arrears of rent due upon him. 8. Per contra, counsel for the respondent/landlord would submit that the execution of the sale deed to sell the tenanted premises, even if presumed to have been executed between the parties for the sake of argument, does not give any right to the revisionist to deny the relationship of landlord and tenant between the revisionist and the respondent; that, the alleged agreement to sell is an unregistered document, therefore, even otherwise that could not be relied upon; that, the legal notice dated 27.12.2016 thereby terminating the tenancy of the revisionist/tenant was duly served upon the revisionist/tenant; that, in the notice it was unequivocally stated at para 1 that the rate of rent is Rs. 2,200/- per month, however, in reply the revisionist/tenant did not deny this fact specifically that the rate of rent of the tenanted premises was not Rs. 2,200/-, rather, merely stated that the tenant premises was given on rent in the year 1998 by the respondent/landlord @ Rs. 300/- per month, that is to say, there was no denial that at the time of service of the notice the rate of rent was not Rs. 2,200/- per month. 9. 2,200/-, rather, merely stated that the tenant premises was given on rent in the year 1998 by the respondent/landlord @ Rs. 300/- per month, that is to say, there was no denial that at the time of service of the notice the rate of rent was not Rs. 2,200/- per month. 9. Counsel for the respondent would further submit that in the legal notice dated 26.07.2016 sent to respondent/landlord by the revisionist/tenant, the revisionist/tenant had specifically stated that the revisionist/tenant was tenant in the tenanted premises @ Rs. 300/- per month since 1998 and continued to be tenant with the increase of rent as per rules, but did not state as to what exactly was the rate of rent on the date of notice. 10. Counsel for the respondent/landlord would further submit that the revisionist/tenant did not deposit the rent as per Section 20(4) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), 1972 within a period of one month from the date of receipt of the notice and even did not pay the same during the pendency of the suit before the Small Causes Court; therefore, the judgment and decree passed by the Judge, SCC does not require any interference. 11. Counsel for the revisionist/tenant would submit that the impugned judgment is bad in the eyes of law for the reason that the respondent/landlord did not produce herself to testify and prove her case as witness. To bolster his submission, he would cite a judgment of Hon’ble Supreme Court in re “S. Kesari Hanuman Gaur Vs. Anjum Jihan and Ors” (2014) 1 SCC (Civil) 23. 12. Per contra, counsel for the respondent would submit that PW1 Mohd. Iqbal i.e. the husband of the respondent/landlord had stated in para 1 of his statement that the respondent/landlord is a pardanashin lady and he is the person who manages the property of the respondent/landlord for which she had executed a power of attorney and the same was placed on record. He would further submit that in para 3 of his evidence by way of affidavit he stated that the notice dated 27.12.2016 under Section 106 of the Transfer of Property Act was got issued in the presence and instructions of his wife by her counsel Mr. Kishore Joshi and at that time he was also present there. He would further submit that in para 3 of his evidence by way of affidavit he stated that the notice dated 27.12.2016 under Section 106 of the Transfer of Property Act was got issued in the presence and instructions of his wife by her counsel Mr. Kishore Joshi and at that time he was also present there. He would further submit that in cross examination there is no suggestion to the effect that PW1 Mohd. Iqbal did not have any personal knowledge of the facts that he was deposing in his affidavit tendered in examination-in-chief or that he was not present when the notice was issued or that he was not present at the time of the instructions being given to the Advocate to give notice to the revisionist. 13. Having considered the submissions of learned counsel for the parties, this Court finds that the counsel for the revisionist has confined his arguments from two major perspectives; first, that the revisionist/defendant is not the tenant of the respondent/plaintiff in the disputed shop in view of the agreement to sell executed between the parties to purchase the disputed shop; second, that the respondent/landlord Asma Parveen, who had launched the proceedings of the suit, did not produce herself to testify and prove her case as witness. 14. As regards the first submission regarding denial of landlord-tenant relationship in view of agreement to sell executed between the parties for purchase of property in question, counsel for the respondent/plaintiff would submit that the revisionist/defendant cannot deny the landlord-tenant relationship in view of the agreement to sell, which even if presumed to have been executed, was an unregistered document. 15. The issue of landlord-tenant relationship between the parties was dealt with by the trial court in issue no.1 and it was observed that the PW1 Mohd. Iqbal, husband of respondent/plaintiff has categorically stated in his examination-in-chief that the revisionist/defendant has not purchased the disputed shop nor any agreement to sell was executed in this respect and that the agreement to sell filed by the revisionist/defendant is null and void; that, the revisionist/defendant also admitted in his cross-examination that registration of the agreement to sell was necessary which he had not done. The trial court on the basis of evidence recorded a categorical finding that neither there was a registered agreement to sell nor any sale deed was executed thereafter in favour of the revisionist/defendant and accordingly held the revisionist/defendant is in possession of the disputed shop in the capacity of tenant and the landlord-tenant relationship is proved between the parties. In the absence of any cogent evidence by the revisionist/defendant, I concur with the reasoning given by the trial court on issue no.1 and the first limb of argument is accordingly answered against the revisionist/defendant. 16. The question raised on the point that the Power of Attorney holder could not have deposed is also not sustainable as PW1 Mohd. Iqbal has specifically stated in para 1 of his affidavit tendered in examination-in-chief that he has been duly authorized as attorney of the respondent/landlord and he has been looking after the property and managing the same and is having knowledge of all the facts of the case. He has specifically stated in para 4 of this affidavit that the notice was issued on the instructions of his wife in his presence by the Advocate. There is no suggestion whatsoever that the PW1 Mohd. Iqbal did not have the personal knowledge of the fact deposed in his evidence. 17. In the light of observations made above, it is evident and admitted that the revisionist/ tenant did not tender the rent within statutory period as per the Section 20 (4) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), 1972, rather, he took the defence that as the agreement to sell was executed between the parties, therefore, the respondent was not his landlord and he did not ask for the rent. The execution of any agreement to sell does not give any right of ownership to the revisionist. At the most, if any valid agreement to sell was executed between the parties, then he could have filed the suit for specific performance on that count, but it does not give him any right to stop paying the rent and to deny the landlordship and not to pay the rent in the court as per the provisions of Section 20 (4) of the Act. 18. In view of the above, I do not find any merit in the revision. The revision is dismissed accordingly.