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2024 DIGILAW 1938 (ALL)

Dinkar Verma Alias Jay Singh v. Rajan Kumar Gupta

2024-08-27

SARAL SRIVASTAVA

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JUDGMENT : Hon'ble Saral Srivastava, J.-Heard Sri Saurabh Srivastava, learned counsel for the petitioner, and Sri Jayant Kumar, learned counsel for the respondents. 2. This petition under Article 227 of the Constitution of India has been filed by the petitioner challenging the judgment and decree dated 24.10.2016 passed by the Judge, Small Causes Court, Kanpur Nagar in SCC suit No. 43 of 2013 and the judgment and decree dated 15.10.2022 passed by the Additional District Judge, Court No. 26, Kanpur Nagar in SCC revision No. 29 of 2017 whereby the revisional Court has dismissed the revision of the petitioner-tenant. 3. The respondents-landlord instituted SCC suit No. 43 of 2013 contending inter alia that the petitioner is the tenant of the suit premises described in the plaint at Rs. 300/- per month plus 18% interest. It is alleged that the petitioner did not pay the rent from 1.12.2006 to 31.12.2012. The respondent landlord stated that he is not claiming the time-barred rent and is claiming only the rent from the date of the institution of the suit. 4. The said suit was contested by the petitioner-tenant by filing a written statement contending inter alia that when the respondents-landlord refused to accept the rent, he instituted misc. case No. 498/70 of 2009 and deposited the rent from 1.5.2009 to 31.12.2013. Accordingly, it is pleaded that since the rent up to date was paid, therefore, there was no default in payment of rent and the suit was not maintainable. 5. The trial Court framed the issue as to whether the petitioner has defaulted in payment of rent and has complied with the requirement of Section 20(4) of Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (for short 'UP Act No. 13 of 1972'). 6. The trial Court on the basis of evidence on the record returned a finding that the petitioner has not led any evidence on record proving the fact that he had paid the rent from December 2006 to April 2009. It further recorded that the petitioner did not file any rent receipt or any money order receipt proving that the rent for the period from December 2006 to April 2009 was paid. Accordingly, it held that the petitioner has defaulted in payment of the rent. 7. It further recorded that the petitioner did not file any rent receipt or any money order receipt proving that the rent for the period from December 2006 to April 2009 was paid. Accordingly, it held that the petitioner has defaulted in payment of the rent. 7. On the issue of compliance with Section 20(4) of UP Act No. 13 of 1972, the trial Court returned a finding that the petitioner has not led any evidence on record establishing that he has complied with the Rule 21(5) of Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 (for short 'the Rules, 1972') in depositing the rent under Section 30 of UP Act No. 13 of 1972. Accordingly, it held that the deposit under Section 30 of UP Act No. 13 of 1972 is not valid, and therefore, the petitioner is not entitled to benefit of Section 20(4) of UP Act No. 13 of 1972. 8. The petitioner, thereafter preferred SCC revision No. 29 of 2017. The revisional Court affirmed the finding of the trial Court and dismissed the revision of the petitioner. 9. Challenging the aforesaid orders, learned counsel for the petitioner has contended that it is established on record that the petitioner had deposited the rent up till 31.12.2013, therefore, there was no default in payment of the rent for four months on the date of institution of the suit. Consequently, it is submitted that the suit was not maintainable. 10. It is further contended that the trial Court as well as the revisional Court has erred in law in holding that the petitioner failed to comply with Section 20(4) of UP Act No. 13 of 1972. In this respect, he has placed reliance upon two judgments of this Court in the cases of Satya Prakash Goel v. Smt. Kavita Jain, 2019 (3) ARC 260 and Brij Bhushan Mishra v. Surita Sarbabdhikari (Smt.) and another, 2009 (1) ARC 391 . 11. In this respect, he has placed reliance upon two judgments of this Court in the cases of Satya Prakash Goel v. Smt. Kavita Jain, 2019 (3) ARC 260 and Brij Bhushan Mishra v. Surita Sarbabdhikari (Smt.) and another, 2009 (1) ARC 391 . 11. It is further contended that the petitioner cannot be non-suited on the ground that he has defaulted in payment of rent from 2006 to 2009 which was time-barred rent, and if that period is excluded, it is established on record that the rent till the date of institution of suit was paid and thus, the subordinate Courts have committed manifest error of law in refusing to grant the benefit of Section 20(4) of UP Act No. 13 of 1972. 12. Per contra, learned counsel for the respondents would contend that in the present case, the petitioner-tenant failed to prove that the deposit under Section 30 of UP Act No. 13 of 1972 was made in accordance with Rule 21(5) of the Rules, 1972, compliance of which is mandatory in case the tenant deposits the rent in the Court. He submits that in the present case, since there was no compliance with Rule 21 (5) of the Rules, 1972, therefore, the trial Court has rightly held that the deposit under Section 30 of UP Act No. 13 of 1972 cannot be treated to be a valid deposit. He has further submitted that to avail the benefit of Section 20(4) of UP Act No. 13 of 1972, the tenant has to deposit the entire rent which includes the time-barred rent also, and since in the present case, the petitioner has not deposited the rent for the period from 2006 to 2009, therefore, the Court below has rightly held that the petitioner has not complied with the Section 20 (4) of the Act, 1972. 13. I have heard learned counsel for the parties and perused the record. 14. 13. I have heard learned counsel for the parties and perused the record. 14. The contention advanced by learned counsel for the petitioner is that once the petitioner had deposited the rent under Section 30 of UP Act No. 13 of 1972 till the date of institution of the suit, there was no default in payment of rent and thus, the SCC suit was not maintainable, this argument, according to counsel for the petitioner, is supported by two judgments relied upon by him, but in the opinion of the Court, the facts in the present case are different and for the reasons given hereunder, this Court is of the view that the two judgments relied upon by the petitioner are of no help to the petitioner. 15. In the present case, the subordinate Courts have held that Rule 21 (5) of the Rules, 1972 has not been complied with. Learned counsel for the petitioner in the present proceeding could not demonstrate from the record that there was any pleading in the written statement to the effect that Rule 21 (5) of the Rules, 1972 was complied with while depositing the rent every month under Section 30 of U.P. Act No. 13 of 1972. 16. This Court in the case of Hari Gopal v. Vijay Kumar and others, 2009(8) ADJ 134 , has held that to take the benefit of Section 20(4) of UP Act No. 13 of 1972, the compliance of Rule 21 (5) of the Rules, 1972 is mandatory. Paragraph No. 14 of the said judgment is being reproduced herein below : ''14. The procedure for deposit under Section 30 is provided in rule 21 of the Rules framed under the Act. Sub Rule 5, though empowers continuance of deposit in consonance with Section 30 (1) it imposes a mandatory condition that on every subsequent deposits, though fresh application is not necessary, but process and notice in the Form 'F' shall accompany every subsequent deposit. The trial Court has recorded a finding of fact that it is admitted to the tenants that process fee and notice in the Form 'F' with regard to subsequent deposits was not made but the revisional Court, relying upon the order dated 18.10.1997 has held that after passing of the said order it would be deemed that all the provisions have been complied. No doubt, so far as the initial deposit is concerned, it would be presumed that the service was sufficient on the landlord but the said order dealt with the deposit made on or prior to 18.10.1997, years before the notice determining the vacancy was given. Therefore, the legality of subsequent deposits was crucial for relieving the tenants from eviction and thus in view of rule 21 (5), it was incumbent upon the tenant to have proved that they had deposited fresh process and notice in Form 'F' with regard to subsequent deposit made after October, 1997. There is no evidence on record to show compliance with the requirement of rule 21 (5) in regard to subsequent deposit and therefore, the trial Court had rightly held that the tenants would not be entitled to the benefit of subsequent deposit and therefore, the protection of Section 20 (4) of the Act. In fact even the defence of the tenants was liable to be struck off under Order 15 Rule 5 C.P.C. for not depositing the monthly dues within time. Thus, this argument is also bound to be accepted.'' 17. Since in the present case, the petitioner did not set up any plea in the written statement in respect of compliance of Rule 21(5) of the Rules, 1972 nor led any evidence on record to prove that there was compliance with Rule 21(5) of the Rules, 1972 on each deposit of the rent, therefore, the finding of the subordinate Courts that there was no compliance of Rule 21(5) of the Rules, 1972 is a finding of fact based upon proper appreciation of facts and evidence on record. 18. So far the judgments in the cases of Satya Prakash Goel (supra) and Brij Bhushan Mishra (supra) relied upon by learned counsel for the petitioner are concerned, in those judgments the Court has not considered the issue whether the deposit under Section 30 of UP Act No. 13 of 1972 was made after compliance of the requirement of Rule 21 (5) of the Rules, 1972, therefore, for this reason, the judgments relied upon by petitioner are distinguishable and do not come to aid of the petitioner. 19. 19. It is pertinent to note that this Court in the case of Khadi Gramodyog Trust (Gramodyog) Mandal v. Ram Chandraji, 1977 ARC 326 , has held that the time-barred rent comes within the phrase 'entire amount of arrears of rent due' under Section 20 (4) of UP Act No. 13 of 1972. Paragraphs No. 17 and 18 of the said judgment are reproduced herein below : ''17. It will thus be seen that the word 'due' was held to have a special connotation in the context of the situation that the provision provided a special procedure for recovery of money without creating any new right and that the provision was discretionary. The Court may well refuse to act under it. The word 'due' occurring in Section 20(4) of the Rent Control Act of 1972 has entirely a different context. It occurs in a section which provides, not an alternative procedure for recovery of arrears of rent, but which confers upon the tenant a right to relief against eviction. This right is founded upon the condition that the rent due must be paid. It confers no discretion on the tenant. The provision is explicit and mandatory. Unless the condition is fulfilled, the right to relief against eviction does not accrue. 18. This, coupled with the fact that a time-barred arrears of rent continues to remain an undischarged debt, clearly means that the phrase 'entire amount of arrears of rent due' would include arrears of rent, recovery of which has become time-barred within meaning of Clause (4) of Section 20.'' 20. Since in the present case the petitioner could not demonstrate from the record that he has deposited either under Section 30 or Section 20(4) alongwith taxes, counsel fee, and litigation expenses of U.P.Act,1972 rent from 2006 to 2009, therefore, the petitioner has not complied with the mandatory requirement of Section 20(4) of UP Act No. 13 of 1972. In such view of the fact, this Court does not find any illegality in the judgments of Subordinate Courts decreeing the suit on the ground of noncompliance with Section 20(4) of U.P.Act No. 13 of 1972. Consequently, the writ petition lacks merit and is dismissed.