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2024 DIGILAW 879 (ALL)

Shiv Ji Agrahari v. Urmila Srivastava

2024-03-21

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : 1. Heard Shri Syed Wajid Ali, learned counsel for the petitioner and Shri A.K. Pathak, learned counsel for the caveator-respondent no. 2. 2. The challenge in this petition, under Article 227 of the Constitution of India, is to the order dated 08.01.2024 passed by the learned Additional District Judge/Court No. 6, Gorakhpur, in SCC Revision No. 38 of 2022 whereby and whereunder the amendment application moved by the petitioner seeking amendment in the written statement at the Revisional Stage has been rejected. 3. It is the case of the petitioner that he is a tenant in a premises let out to his deceased father in the year 2004 initially at Rs. 680/-per month subsequently enhanced to Rs. 1800/-per month. The premises is newly constructed and the provisions of the UP Act No. 13 of 1972 are not applicable. The landlord/respondents have instituted a SCC Suit, being SCC Suit No. 4 of 2015 for his eviction and recovery for arrears of rent and damages. The petitioner put in appearance in the proceedings and filed his written statement denying the plaint averments and specifically stating in para 22 of the written statement that on 28.03.2016 with the permission of the Court a sum of Rs. 33,000/-has been deposited and he has been depositing the rent for further months which is not being accepted by the landlord/ respondents. Since the amount of Rs. 33,000/-stands deposited the petitioner is entitled to benefit of Section 20 (4) of the Act. The learned Judge Small Cause Court vide the judgment and order dated 12.04.2022 has decreed the suit directing the petitioner to handover vacant possession of the tenanted premises within 30 days and also pay rent @ Rs. 1080/-per month from the date of filing of the suit till the date of handing over of possession. The learned Judge Small Cause Court has also held that the provisions of U.P. Act No. 13 of 1972 does not apply. Aggrieved, the petitioner has filed a SCC Revision under Section 25 of the Provincial Small Cause Courts Act which has been registered as SCC Revision No. 38 of 2022. 4. The learned Judge Small Cause Court has also held that the provisions of U.P. Act No. 13 of 1972 does not apply. Aggrieved, the petitioner has filed a SCC Revision under Section 25 of the Provincial Small Cause Courts Act which has been registered as SCC Revision No. 38 of 2022. 4. It is contended by learned counsel for the petitioner that the petitioner has moved an application seeking amendment in the written statement by incorporating the plea that his tenancy is protected under Section 114 of the Transfer of Property Act as the entire arrears of rent and damages together with interest thereon amounting to Rs. 33,000/-has been got deposited. The amendment application has been rejected by the impugned order after contest by the landlord/respondents. 5. Learned counsel for the petitioner has vehemently argued that the rejection of the amendment application (paper No. 9A2) by the Revisional Court is patently erroneous and the same is liable to be set aside. The amendment sought for is purely legal in nature and does not change the nature of the relief sought in the suit or the stand taken in the written statement. The Revisional Court while rejecting the Amendment has simply rejected the amendment application only on the ground that it ought to have been filed before the Court of first instance and what ever reason that has been stated in the amendment application are not liable to be accepted, without recording any findings regarding any reasons that the proposed amendment was withdrawing an admission or that it was not necessary for deciding the real controversy involved in the matter between the parties. It is accordingly prayed that the impugned order be set aside and the amendment application be allowed. Reliance has been placed upon a decision of coordinate Bench reported in 2006 (3) ARC 329. 6. Per contra, Shri A.K. Pathak, learned counsel for the caveator/ landlord/respondents has opposed the petition by submitting that the petition as framed is misconceived and is liable to be dismissed at the threshold. No illegality or irregularity has been committed by the Revisional Court in rejecting the amendment application. The petition is devoid of merits and is liable to be rejected. 7. I have heard the learned counsel for the parties and have perused the records. 8. No illegality or irregularity has been committed by the Revisional Court in rejecting the amendment application. The petition is devoid of merits and is liable to be rejected. 7. I have heard the learned counsel for the parties and have perused the records. 8. From the averments made in the plaint it is borne out that the SCC Suit has been filed for eviction and for recovery of damages for use and occupation after terminating the tenancy by registered notice dated 04.03.2015 under Section 106 of the Transfer of Property Act. The eviction has not been sought on the basis of default. The Provisions of the UP Act No. 13 of 1972 is stated to be not applicable and the learned Judge Small Cause Court has also proceeded to hold as such. In the written statement filed a defence has been taken in para 22 that a sum of Rs. 33,000/-vide Challan No. G-0300602 dated 28.03.2015 regarding the rent along with cost of the suit, interest etc. for the period April 2015 to April 2016 has been deposited. In para 27 of the written statement it has been stated that the provisions of UP Act No. 13 of 1972 are applicable and the tenant/petitioner is entitled to the benefit of section 20 (4) of the Act. In the memo of Revision the finding of the learned Judge Small Cause Court that the provisions of UP Act No. 13 of 1972 are not applicable has not been challenged though a ground has been taken that on the first date of hearing a sum of Rs. 33,000/-towards rent and cost of suit, interest has been got deposited and the rent every month is being deposited, no default has been committed and petitioner is entitled to the benefit of Section 20 (4) of the Act. By way of the amendment at the Revisional stage the tenant/ petitioner intended to incorporate the plea of protection of Section 114 of the Transfer of Property Act. 9. This takes the Court to dwell into the question as to whether benefit of Section 114 of Transfer of Property Act as sought to be claimed by the petitioner can be granted. Section 114 of the Transfer of Property Act is reads as under: "114. 9. This takes the Court to dwell into the question as to whether benefit of Section 114 of Transfer of Property Act as sought to be claimed by the petitioner can be granted. Section 114 of the Transfer of Property Act is reads as under: "114. Relief against forfeiture for non-payment of rent.- Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred." 10. From the perusal of the Provision 114 of the Transfer of Property Act it is apparent that it is attracted only where a lease of immovable property is determined by forfeiture and not otherwise. In the case at hand, the tenancy of the petitioner has been determined by means of a simple notice under Section 106 of Transfer of Property Act. There is neither a case for forfeiture of tenancy nor there is an agreement which is a prerequisite condition for the applicability of Section 114 of Transfer of Property Act. In the opinion of the Court and as is also borne out from the import of Section 114 of Transfer of Property Act itself Section 114 applies to those cases where the landlord invokes his rights under a forfeiture clause under the agreement and determines the lease by forfeiture and sues to eject the tenant on the ground of forfeiture of lease. Admittedly this is not the case at hand. The law in this regard has been laid down in numerous decisions of this Court some of them being 2000 (2) ACJ 1021, 2007 ACJ 2278, 2008 ACJ 2219 and 1996 (1) ACJ 454. 11. Thus the proposed amendment being totally misconceived and unnecessary was rightly rejected by the Revisional Court. 12. There is yet one other aspect of the matter. 11. Thus the proposed amendment being totally misconceived and unnecessary was rightly rejected by the Revisional Court. 12. There is yet one other aspect of the matter. In the opinion of the Court there is no requirement of mentioning the Section 114 in the written statement and it is only essential to plead complete deposit as required under the Section. The Court finds that complete pleadings in this regard has already been taken in the written statement filed by the petitioner. 13. In this view of the matter also the proposed amendment is totally unwarranted. 14. For the above reasons the Court finds no merit in the petition. It is accordingly dismissed. 15. No order as to costs.