Allahabad High Court
Jagdish Prasad Agarwal (At:03:50 ... vs Sushil Kumar Raitani on 22 July, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 05.04.2013)
(Judgment delivered on 22.07.2013)
Court No. - 21
Case :- CIVIL REVISION No. - 26 of 2005
Petitioner :- Jagdish Prasad Agarwal
Respondent :- Sushil Kumar Raitani
Petitioner Counsel :- G.P. Mishra,P.S.Mehra,V.P.Nagaur
Respondent Counsel :- Q.M.Haq
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for both the parties.
This is plaintiff landlord's civil revision under Section 25 Provincial Small causes Court Act directed against judgment and decree dated 18.12.2004 passed by J.S.C.C./A.D.J. Gonda in S.C.C. Suit No.1 of 2001, Jagdish Prashad Vs. Sushil Kumar through which the suit was dismissed.
According to the plaint allegation in brief defendant respondent was tenant of plaintiff landlord, tenancy was created through agreement dated 1.7.1999, rate of rent was Rs.2310/- per month excluding water tax and defendant was paying water tax to the plaintiffs separately that rent w.e.f. 1.8.2008 had not been paid and water tax had not been paid since 1.7.1999 that notice of termination of tenancy and demand of rent was sent on 1.3.2001 demanding rent of Rs.16170/- and water tax of Rs.4620/-. It was also mentioned in the plaint that after giving the notice to the tenant, landlord came to know that tenant had also sublet the shop in dispute to Mahesh Kumar and Sanjay. Relief claimed in the plaint was for eviction and recovery of arrears of rent.
The tenant pleaded that subsequently the landlord had also given a room in the form of a goodown on rent to him @ of Rs.750 per month, that rent of both the buildings from 1.8.2001 to 31.10.2001 was sent through money order by the tenant which was refused by the plaintiff landlord. It was admitted by the tenant that rent of the shop in dispute was Rs.2310/- per month. It was also asserted by the tenant that he deposited the rent in misc. case no.146 of 2000 under Section 30 of U.P. Act no.13 of 1972. Tenant further asserted that he was also paying/depositing Rs.200/- per month as water tax. The only effective issue framed by the trial court was as to whether defendant was defaulter. The trial court reproduced the entire agreement which had been executed in between parties on 1.7.1999. In clause 4 of the agreement it was mentioned that the period of tenancy would be 11 months, however, even thereafter with the consent of the landlord tenancy would be continued and in that contingency after every three years rent would be increased by 10%. Clauses 7 and 8 are relevant for the purpose of decision of the case. According to clause 7 any of the parties whenever he so wished could terminate the tenancy by giving one month's prior notice. Clause 8 stated that second party i.e. the tenant would also be liable to eviction in case of four months default in payment of rent.
In the agreement it was mentioned that shop in dispute was constructed in 1995-96. Even otherwise agreed rent was more than Rs.2000/- per month hence U.P. Act no.13 of 1972 was not applicable to the building in dispute. This point has been decided by the court below in favour of the plaintiff. The court below has also held the agreement to be admissible.
As U.P. Act no.13 of 1972 does not apply hence deposit of rent under Section 30 of the Act was utterly meaningless.
As far as sending the rent through money order is concerned the tenant in his cross examination admitted that he had deducted the money order commission from the rent. Accordingly, landlord was fully justified in refusing to accept the same. The landlord did not withdrew the amount which had been deposited under Section 30 of the Act hence tenant applied for withdrawal of the said amount and thereafter the tenant himself withdrew the amount deposited by him.
From the above facts the court below held that the intention of the tenant was to pay the rent. Intention to pay rent is one thing and actual payment of rent is quite another. The tenant deposited the rent in the suit giving rise to the instant revision for which tender was submitted on 15.9.2001 and thereafter it was deposited. The court below held that the deposit was before the first date of hearing hence defence of the tenant could not be struck off under Order 15 Rule 5 C.P.C. Ultimately, the court below held that tenant had not committed default in payment of rent.
Clause 8 of the agreement only provided an additional ground of eviction of the tenant if rent was not paid for four months as the crucial word used in the said clause was 'also'. However, under the immediately preceding clause i.e. Clause 7 it was mentioned that any of the parties could terminate the tenancy by giving one month's notice. Accordingly even if tenant was not defaulter still he was liable to eviction as his tenancy had been terminated by one month's notice before filing the suit and admittedly U.P. Act no.13 of 1972 did not apply to the building in dispute.
Accordingly, revision is allowed. Judgment and decree passed by the trial court is set aside. Suit of the plaintiff is decreed for eviction and for recovery of arrears of rent and water tax from 1.8.2000 till date. The amount deposited by the petitioner in the suit (S.C.C. Suit no.1 of 2001) shall be adjusted from the decretal amount and shall at once be paid to the landlord.
Tenant-respondent is granted six months time to vacate provided that:-
1. Within one month from today tenant files an undertaking before the J.S.C.C. to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-petitioner.
2. For this period of six months, which has been granted to the tenant-respondent to vacate, he is required to pay Rs.30000/-( at the rate of Rs.5000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the J.S.C.C. and shall immediately be paid to the landlord-petitioner.
3. Within one month from today tenant shall deposit entire decreetal amount due till date (after adjusting any amount already deposited) before the J.S.C.C. for immediate payment to landlord-petitioner.
In case of default in compliance of any of these conditions tenant-respondent shall be evicted through process of Court after one month and shall also be liable to pay damages at the rate of Rs.7500/- per month since after one month till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking and depositing decreetal amount and Rs.30000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs.7500/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application.
Order Date :- 22.07.2013
NLY
