Allahabad High Court
Jagdish Prasad Mishra (At:03:50 ... vs State Of U.P.Through Collector ... on 10 July, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 11.04.2013)
(Judgment delivered on 10.07.2013)
Court No. - 21
Case :- CIVIL REVISION No. - 72 of 2007
Revisionist :- Jagdish Prasad Mishra
Opposite Party :- State Of U.P.Through Collector Sitapur And Another
Counsel for Revisionist :- Govind Saran Nigam
Counsel for Opposite Party :- C S C
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for parties.
This is plaintiff landlord's revision under Section 25 of Provincial Small Cause Courts Act directed against decree dated 16.03.2007 passed by J.S.C.C./ A.D.J., Court No.23, Sitapur in S.C.C. Suit No.6 of 2003, Jagdish Prasad Mishra Vs. State of U.P. and another. Through the impugned decree relief of eviction of the tenant defendant respondent was denied, however the suit was decreed for recovery of rent at the rate of Rs.1400/- per month w.e.f. 17.04.2001 and Rs.220/- per month as electricity charges and 10% of the rent as water tax. The landlord applicant had pleaded that rate of rent was Rs.2000/- per month, however according to defendant respondent, it was Rs.1400/- per month. Before filing suit, tenancy was terminated through notice dated 14.12.2003. Tenant had pleaded that U.P. Act No.13 of 1972 was applicable upon the building in dispute, hence the contract of tenancy was illegal and suit was not maintainable. This argument was raised on the basis of Full Bench judgment of this Court which was over ruled in "Nutan Kumar v. 2nd Aditional District Judge AIR 2002 SC 3456", in which it was held that even though tenancy had come into existence without allotment, suit for eviction on any of the grounds mentioned under Section 20(2) of U.P. Act No.13 of 1972 was maintainable.
Undisputedly, the tenancy started w.e.f. 17.04.2001.
No formal rent deed was executed in between the parties, however the tenancy was admitted to both the parties.
Issue No.4 related to the applicability of U.P. Act No.13 of 1972 and issue No.5 to the validity of the agreement of tenancy. Both the issues were tried together by the court below. The court below held that agreement was quite legal, however without any basis the court below held that U.P. Act No.13 of 1972 was not applicable to the building in dispute. Under the said issue, the court below held that the defendant had filed the documents showing assessment of house tax starting from 1970-75. In spite of it the court below held that U.P. Act No.13 of 1972 was not applicable. Even though defendant has not challenged the said findings, however under Order XLI Rule 22, C.P.C. and Order XLI Rule 33, C.P.C., this court can very well judge the correctness of the said findings. I hold that the finding regarding non-applicability of the Act is patently erroneous in law and the same is set aside. It is held that Act is applicable to the building in dispute as it was constructed prior to 1985.
Landlord applicant placed reliance upon a letter issued by the Government (Paper No.21-ga).
Through the said letter, government inquired from the D.M. regarding the appropriate rent, who opined that rent could be Rs.2000/- per month. This cannot mean that government was ready to pay rent at the rate of Rs.2000/- per month. The court below also mentioned that both the parties agreed that D.M. had fixed rate of rent at Rs.2000/- per square feet. It further held that as the total area was 700 square feet hence rent came to Rs.1400/- per month. In the said finding, no legal error can be found. Some internal communication of different officers of the government cannot be relied upon by the landlord. Landlord failed to prove the fact that any agreement of payment of rent at the rate of Rs.2000/- per month took place between the parties. The said findings being finding of fact not suffering from any error of law do not require any interference in exercise of revisional jurisdiction.
In respect of default, court below held that before 14.05.2003 when notice was sent by the plaintiff, an amount of Rs.32,850/- had been received by the plaintiff landlord towards rent and at the rate of Rs.1400/- per month, an amount of Rs.34250/- was payable as rent and only Rs.1400/-, i.e. one month's rent remained due, hence demand of rent of Rs.16083/-, in the notice was wrong. The court below further held that since the date of start of tenancy, i.e. 17.04.2001 tenant was liable to pay Rs.220/- as electricity charges and 10% of the rent i.e. Rs.140/- per month as water tax.
In the end the court below held that as in the notice such rent had been demanded, which was not due hence notice was invalid and suit for eviction could not be decreed. In my opinion, in this regard, the court below was utterly wrong. If more rent than due is demanded in the notice, notice does not become invalid vide 2000 (1) A.R.C. 653 (F.B.) Gokaran Singh Vs. Ist A.D.J., Hardoi & Others.
The judgment of the court below is thoroughly unsatisfactory on the question of applicability of the Act and validity of the notice. However, even after holding that notice was valid and Rent Control Act was applicable, it is necessary to decide as to whether on the date of notice more than three months' rent was due or not by adding water tax to the rent as required by Section 7 of U.P. Act No.13 of 1972. If it is held that taking the total rent to be Rs.1540/- (1400 + 140) the tenant was defaulter for more than three months suit will have to be decreed.
Accordingly, revision is allowed. Impugned order is set aside. Matter is remanded to the court below to decide the question of default on the date of the notice taking the water tax to be part of rent as indicated above. Both the parties are directed to appear before the court below on 22.08.2013. No new evidence is required/ permitted to be adduced by any of the parties.
Order Date :- 10.07.2013
NLY
