Maqsudul Hasan (At: 03:50 P.M.) vs Special Judge E.C.Act/Addl. ...
2013 Latest Caselaw 3960 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Judgment reserved on 10.04.2013)
 
   (Judgment delivered on 10.07.2013)
 

 

 
Court No. - 21
 
Case :- RENT CONTROL No. - 32 of 2003
 
Petitioner :- Maqsudul Hasan
 
Respondent :- Special Judge E.C.Act/Addl. District Judge Lucknow & Ors.3
 
Counsel for Petitioner :- Ashok Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,R.N.Shukla
 

 

 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for both the parties.

This is tenant's petition arising out of suit for eviction filed by the landlord respondent nos. 3 and 4 against the petitioner for eviction from the tenanted premises which is a shop and for recovery of arrears of rent in the form of SCC Suit no.610 of 1982 Smt. Gyanawati and another Vs. Maqsudul Hasan. J.S.C.C. Lucknow dismissed the suit through the decree dated 22.2.1996. Against the said decree landlords respondents filed SCC revision no.48 of 1996 A.D.J./Special Judge E.C. Act Lucknow allowed the revision through judgment and order dated 11.12.2002 set aside the decree passed by the trial court and decreed the suit for eviction and recovery of arrears of rent hence this writ petition.

The plaintiffs had purchased the property in dispute from its previous owner landlord through registered sale deed dated 24.11.1981, petitioner was tenant since before the purchase. Notice was given by the plaintiffs landlords to the tenant on 24.4.1982 and the suit was filed on 1.9.1982. Admitted rate of rent is Rs.125/- per month. Initially the suit was decreed ex parte but the said order was set aside by the revisional court and trial court was directed to decide the suit on merit.

After receiving the notice of the landlord the tenant sent the reply on 29.5.1982 copy of which is Annexure 2 to the writ petition stating that even after 24.11.1981, the previous owner landlord Smt. Savitri and her husband were demanding the rent from the tenant hence he was finding it quite difficult to know the source of ownership of the plaintiffs. Even in the notice dated 24.4.1982 copy of which is Annexure 1 to the writ petition the plaintiffs landlords did not state that they had purchased the property and on what date. The only thing which was mentioned in para 3 thereof was that rent had not been paid to the plaintiffs from 24.11.1981 inspite of several demands. Admittedly certified or photo state copy of the sale deed was not supplied by the plaintiffs landlords to the tenant. It was even not filed alongwith the plaint. It was filed in the suit only on 18.2.1986 (after about four years of filing of the suit).

In para 8 of the plaint it was stated that shop was newly constructed in 1977, hence, U.P. Act no.13 of 1972 was not applicable thereupon. In this regard the trial court held that no documentary evidence was filed to substantiate the said plea which had been denied by the tenant and even in oral evidence PW 1 and PW 2 could not say anything regarding date of construction hence plaintiffs failed to discharge the burden to prove that the shop in dispute was constructed in the year 1977.

The lower revisional court reversed the finding of the trial court. However, the view taken by the lower revisional court on this point is utterly strange. On the one hand the lower revisional court held that in the sale deed there was no mention that shop had been constructed by Savitri Devi. The shop had been constructed by Municipal Corporation and given on a lease to Savitri Devi for a long period through lease deed dated 10.10.1974. The lower revisional court categorically held that in the sale deed of 1981 the seller Smt. Savitri Devi categorically mentioned that the shop in dispute had been taken by her on lease through deed dated 10.10.1974 hence there was no question of construction of the shop in 1977. However thereafter the reivisional court held that it was inconceivable that after constructing the shop in the year 1970 Nagar Maha Palika would keep it unoccupied for four years hence the presumption was drawn by the lower revisional court that the shop was constructed in 1972. Accordingly, it held that in the year 1982 when suit was filed the building was not 10 years old. This is thoroughly unsatisfactory way of recording date of construction. In the absence of assessment of house tax or record of construction it is date of first occupation which is relevant.

There is no finding regarding first occupation of the shop in dispute by the lower revisional court. In the first instance U.P. Act no.13 of 1972 applies on all the buildings. It is only in the second instance that certain buildings are declared to be beyond purview of the Act. Accordingly, it is for the landlord to show that the Act does not apply to the building. The presumption drawn by the lower revisional court is too far fetched. Landlord could very well obtain the record pertaining to construction of the shop by Municipal Corporation Lucknow as the shop had been constructed by the Municipal Corporation Lucknow over Nazul land which is under its management.

The lower revisional court thereafter held that in case there was any doubt in the mind of the tenant regarding the landlordship the rent could be deposited under Section 30(2) of U.P. Act no.13 of 1972. After holding that the Act does not apply there was absolutely no occasion for the learned A.D.J. to hold that rent could be deposited under Section 30(2) of the Act.

In any case to deposit the rent under Section 30 of the Act is merely a right of the tenant but it is not his duty.

As copy of the sale deed was not supplied to the tenant by the new landlords plaintiffs hence tenant was not liable to pay rent to the plaintiffs. In this regard, reference may be made to the authority of the Supreme Court reported in Ram Rati Vs. Shri Niwas, AIR 1995 SC 2321. Paras-4 & 5 of the said judgment are quoted below:

"4. The suit was decreed by the trial Court. But on appeal, the said decree was set aside by the District Judge, Jhansi and the suit was dismissed. The said decree of the District Judge, Jhansi has been affirmed in second appeal by the High Court of Allahabad by judgment and decree dated September 20,1978. The High Court has held that as a result of the dismissal of her objections filed under Order 21 Rule 58 C.P.C. the title of the appellant in the property came under a cloud and the cloud over her title was cleared only when her suit for declaration was decreed by the District Judge,Jhansi on July 4, 1966. The High Court has further found that the respondent was not a party to the suit filed by the appellant and in her notice dated July 21, 1966 she did not mention that the suit for declaration had been decreed in her favour and that the respondent could not know that any decree had been passed, under which the appellant had been declared to be the owner of the premises and that on the other hand the respondent knew that a decree had been passed against him on July 30, 1966 in the suit filed by Ram Nath. The High Court has, therefore, held that if the respondent did not pay rent to the appellant in response to the notice dated July 21,1966, he cannot be held to be a defaulter for the purpose of Section 3, of the Act.

5. The learned Counsel for the appellant has submitted that since the respondent was inducted as a tenant by the appellant, he was bound to pay the rent to the appellant and on his failure to pay the rent the appellant is entitled to seek his eviction. In this connection, the learned Counsel has also invited our attention to Section 7C(2) of the Act which prescribed that where any bonafide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in Sub-section (1) in respect of any accommodation, the tenant may deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision Of any competent Court, or by the settlement between the parties, continue to deposit, in like manner, the rent that may subsequently become due in respect of such building. The said provision can have no application to the facts and circumstances of this case ' because so far as respondent is concerned he was obliged to pay rent to Ram Nath, auction purchaser on the basis of the decree passed in the suit filed by Ram Nath against him. The respondent could be held to be bound to pay the rent to the appellant only after he was informed about the passing of the decree in her favour in the declaratory suit filed by her. This fact was not stated by the appellant in her notice dated July 21, 1966. The respondent cannot, therefore, be said to have committed default in payment of rent in having not paid the rent to the appellant in pursuance of the said notice."

Accordingly tenant was not defaulter when notice was given to him by the landlord on 24.4.1982.

In the plaint it had also been alleged that original landlady had sent a notice to the tenant informing him about the transfer, however, the trial court after thorough discussion of the evidence held that it was not proved that the said notice by the previous landlady was received by the tenant.

The tenant was depositing the rent before the J.S.C.C./court below. Some tender receipts were lost by the tenant hence the rent paid through the said tenders (Rs.4125/-) was again paid to the plaintiffs respondents through their advocate against receipt dated 11.01.2000 number 75 Ka, Annexure-2 to the writ petition.

I find that the judgment and order passed by the lower revisional court is thoroughly unsatisfactory.

Regarding striking of the defence under Order 15 Rule 5 C.P.C. the trial court held that the moment it became clear to the tenant that the plaintiffs had purchased the property, he started depositing the rent. It was further held that until the filing of the suit and even until 18.2.1986 plaintiffs had not either given copy of the sale deed to the tenant or filed the same in the suit hence until then tenant defendant was not liable to deposit the rent. Lower Revisional Court reversed this finding also.

Under Order 15 Rule 5, C.P.C. only undisputed rent is to be deposited. If the tenant can question the ownership/landlord ship of the plaintiff, it is not obligatory upon him to deposit the rent as it can not be said that there is any admitted rent due. In any case from the evidence of the plaintiffs themselves it was clear that copy of the sale deed was not provided to the tenant hence tenant was not liable to pay rent. Accordingly, he was not defaulter when the suit was filed. The result is that even if it is held that the defence of the tenant should have been struck off still suit could not be decreed. Accordingly, the judgment and order passed by the lower revisional court deserve to be set aside and judgment and decree passed by the trial court dismissing the suit deserves to be maintained.

However, by today's standard rent of Rs.125 per month for a shop situate in Gole market of Lucknow is nothing. In this case on 10.4.2013 when arguments were concluded and judgment was reserved following order was passed:

"Heard learned counsel for both the parties.

Judgment reserved.

Learned counsel for the tenant petitioner states that in case matter is decided in favour of the tenant then tenant is ready to pay the reasonable rent from the date of the judgment which the Court may determine. Learned counsel for the landlord respondent states that current market rent may not be less than Rs.4000/- per month. Until delivery of judgment petitioner shall not be evicted."

The writ petition is therefore allowed, Judgment and order passed by the lower revisional court is set aside judgment and decree passed by the trial court dismissing the suit for eviction is restored. However, it is directed that w.e.f. July 2013 onward tenant shall pay rent to the landlord @ of Rs.1500/- per month. (There is no need to determine as to whether the current market rent of Rs.4000/- per month as stated by learned counsel for the landlord is correct or not as the purpose of U.P. Act no.13 of 1972 is to regulate the rent also accordingly current market rent can not be directed to be paid).

Order Date :- 10.07.2013

NLY