Shailesh Kumar And Another vs Mahendra Pratap Agarwal And ...
2013 Latest Caselaw 395 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
(Judgment reserved on 01.04.2013)
 
(Judgment delivered on 05.04.2013)
 

 

 

 
Court No. - 21
 
Case :- CIVIL REVISION No. - 178 of 2006
 
Petitioner :- Shailesh Kumar And Another
 
Respondent :- Mahendra Pratap Agarwal And Others
 
Petitioner Counsel :- R.P.Singh
 
Respondent Counsel :- Brij Raj Tripathi
 

 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for both the parties.

This revision under Section 25, Provincial Small Causes Courts Act is directed against judgment and decree dated 03.10.2006 passed by J.S.C.C./ A.D.J./ Special Judge, S.C. & S.T. Act, Bahraich in S.C.C. Suit No.4 of 1997 dismissing the suit of the landlords applicants, which had been filed by them against tenants respondents for their eviction from the tenanted shop in dispute and for recovery of arrears of rent. Tenants respondents had deposited certain amounts in the suit. Through the impugned judgment, plaintiffs were permitted to withdraw the said amount.

Since before 1986, original defendant Smt. Savitri Agarwal (who died during pendnecy of the suit before the court below and was substituted by her legal representatives who are the respondents in this revision) was tenant of an old dilapidated shop on behalf of plaintiffs applicants. Landlords instituted Case No.21 of 1986 against her under Section 21(1)(b) of U.P. Act No.13 of 1972 for her eviction on the ground that the then tenanted shop was in dilapidated condition. The case was decided on the basis of compromise on 07.10.1986. It was agreed that tenant would vacate the shop, landlords would reconstruct the same and thereafter the newly constructed shop would again be given on lease to the same tenant at the old rent of Rs.200/- per month. Pursuant thereto, the old shop was vacated by the tenant, new shop was constructed by the landlord and was given to the same tenant Smt. Savitri Devi on rent of Rs.200/- per month.

Smt. Savitri Devi filed an allotment application also under Section 24(2) of the Act on 01.01.1987 for allotment of the newly constructed shop possession of which had already been given to her before R.C. & E.O./ City Magistrate, Baharich initial number of which was 69. Lastly it was numbered as Case No.7 of 1996, Smt. Savitri Agarwal Vs. Radhey Shyam. The said case was decided on 09.02.1996. The R.C. & E.O. allotted the shop to her at the rent of Rs.300/- per month. It was further directed that the balance rent (Rs.100/- per month, i.e. the difference between Rs.300/- and Rs.200/-) w.e.f. 01.01.1987 would be paid by the tenant within one month otherwise allotment order would automatically come to an end and the shop would be treated to be not covered by U.P. Act No.13 of 1972. The reason for this forfeiture clause given in the body of the judgment was that allotment application had been filed after about two months even though the period was only one month as provided by Rule 20 of the Rules framed under the Act (one month from the date on which the construction of the building sought to be allotted is complete). The rate of rent was fixed to be Rs.300/- per month on the ground that cost of new construction was Rs.30,000/-. It was further observed that even though in the compromise it had been agreed that rate of rent would be Rs.200/- per month, however as application was filed after more than one month, hence Rs.300/- per month rent was being fixed.

Against the said order, tenant Smt. Savitri Devi filed Rent Appeal No.21 of 1996. The main aspect which the lower appellate court discussed was regarding fixation of Rs.300/- per month rent as against the agreed rent of Rs.200/- per month. The lower appellate court held that in view of the formula given under Section 24(2) of the Act, the rent was rightly fixed to be Rs.300/- per month by the R.C. & E.O. The lower appellate court categorically held that it was not proved that tenant had filed the application beyond one month from the date of completion of construction. However, the lower appellate court did not say anything specifically about the findings of the R.C. & E.O. that in case of default of payment of the balance rent within one month, allotment would automatically come to an end and building would not be covered by the Rent Control Act. Appeal was dismissed on 17.02.1997. Thereafter, Writ Petition No.56 (R/C) of 1997 was filed, which was dismissed by this court on 10.05.2006. However, at the end of the said judgment it was observed that "Petitioner shall comply with the directions contained in the judgment passed by the courts below within two months from today. The deposit shall be without prejudice to the rights of the landlord."

It is rather strange that in the suit giving rise to the instant revision, rate of rent was claimed to be Rs.500/- per month. It was also pleaded that as pursuant to the order dated 09.02.1996 passed by the R.C. & E.O., balance rent had not been paid within one month, hence provisions of U.P. Act No.13 of 1972 were not applicable upon the building in dispute. In para-10 of the plaint, it was stated that as on 01.01.1987, the market rate of the shop in dispute was not less than Rs.500/- per month, hence plaintiffs were entitled to recover the rent from the tenant at the rate of Rs.500/- per month w.e.f. 01.01.1987.

Under no circumstances rent of Rs.500/- per month could be demanded by the landlords w.e.f. 01.01.1987.

However, the tenant in his application dated 18.04.1998 stated that he wanted to deposit the admitted rent of Rs.500/- per month.

Accordingly, there is no fault in the impugned judgment and decree permitting the landlords applicants to withdraw the amount deposited by the tenant.

In the suit tenant deposited the amount of Rs.70595/- on 15.05.1998 calculating the rent due till 31.05.1998 at the rate of Rs.500/- per month. The said amount also included interest and cost of the suit. Application for making the deposit had been filed and allowed three days before, i.e. on 12.05.1998. Written statement was filed and taken on record by the court on 24.08.1998. Thereafter, w.e.f. 01.06.1998 rent was deposited at the rate of Rs.300/- per month. However, after the decision of the earlier writ petition (Writ Petition No.56 (R/C) of 1997) the balance rent of Rs.200/- per month (500-300=200) was also deposited within two months from the date of decision of the said writ petition dated 10.05.2006. Rs.15,000/- extra were also deposited on 07.07.2006. Admittedly, until the date of filing of the suit rent had been paid at the rate of Rs.200/- per month.

The court below through the impugned judgment held that the entire amount had been deposited well within time and the deficiency had also been made good in accordance with the time granted by the judgment of this court dated 10.05.2006 passed in the earlier writ petition, hence tenant was not defaulter. Court below also held that U.P. Act No.13 of 1972 was applicable on the building in dispute. Regarding delay/ default in payment of balance rent in accordance with the order of R.C. & E.O. dated 09.02.1996 (within one month therefrom) the court below held that the deficiency had been made good within the time granted by this court (in the earlier writ petition) hence forfeiture clause did not come into operation/ ceased to be operative.

Date Of First Hearing:-

In Krishna Kumar Gupta Vs. XIV A.D.J., 2004 (2) ARC 659 after considering five authorities of the Supreme Court on the question of interpretation of first date of hearing as used in Section 20(4) of U.P. Act No.13 of the Act, I have held that if written statement is filed with the permission of the court and taken on record by the court, then no date prior to the date of filing of the written statement can be taken to be date of first hearing. In the instant case, written statement was filed on 24.08.1998 and deposit of Rs.70,000/- and odd had already been made on 15.05.1998, hence the deposit was well before the date of first hearing.

Rate of Rent:-

Landlords have not been able to show anything to justify demand of rent at the rate of Rs.500/- per month. Para-10 of the plaint merely states the current market rent and the desire of the landlords. Rate of rent cannot be fixed/ demanded in such manner.

In any cause, on the date of first hearing, the tenant was not defaulter at all as he had deposited rent at the rate of Rs.500/- per month as against the rent of Rs.300/- per month, hence the deposit was much more than required.

Effect of order of R.C. & E.O.:-

The direction in the order of R.C. & E.O. that in case balance rent is not paid within one month, allotment order would come to an end and Rent Control Act would not be applicable to the building in dispute is utterly without jurisdiction. There is no provision or principle of law under which such an order could be passed. Applicability of the Act does not depend upon payment or not payment of rent or delay in payment of rent. As far as delay in making application for allotment is concerned, lower appellate court held that there was no delay. In any case by virtue of Section 35 of the Act, provisions of Section 5, Limitation Act (for condonation of delay) apply to all the proceedings of the Act. If the R.C. & E.O. was of the opinion that there was delay in making application and he had no jurisdiction to condone the delay, then he could have dismissed the application but he could not impose condition that in case of failure to pay the arrears of rent, within one month allotment order would automatically come to an end and building would be beyond the purview of U.P. Act No.13 of 1972. This condition was utterly without jurisdiction. It could be ignored even in collateral proceedings like the suit giving rise to the instant writ petition.

In Sarup Singh Vs. Union of India, AIR 2011 SC 540 = 2011 (11) SCC 198, (paras 20 to 32) the Supreme Court held that District Judge was fully justified in refusing to execute an order/ decree of the High Court as the same was without jurisdiction. In the said case, High Court after decision of an appeal under Section 54 of Land Acquisition Act before amendment of Land Acquisition Act by Act No.68 of 1984 had entertained an application under Sections 151 & 152, C.P.C. filed after the amendment of the Act and directed payment of enhanced interest, solatium etc. under amended, Land Acquisition Act. The Supreme Court held that it was utterly without jurisdiction and District Judge could very well ignore and refuse to execute the same in execution.

Accordingly, I do not find any error in the impugned judgment and decree.

On 01.04.2013 after hearing the arguments in this revision, the following order was passed:

"Heard learned counsel for both the parties.

Judgment reserved.

On inquiry from court, learned counsel for tenant respondent states that in case matter is decided in favour of tenant, then tenant is ready to pay rent with effect from the date of delivery of judgment at a reasonable rate, which the court may fix."

A shop rental value of which was Rs.200/- or Rs.300/- per month in 1987 can at present very well be let out for several thousand rupees per month. Accordingly, it is directed that with effect from today, tenant respondent shall pay Rs.1000/- per month rent to the landlords applicants.

With the above direction, revision is dismissed.

Order Date :- 05.04.2013

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