Man Singh vs Smt. Ram Kumari And 2 Ors.
2013 Latest Caselaw 4613 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 7
 
Reserved
 

 

 
Civil Misc. Writ Petition N0. 35702 of 2013
 
Man Singh...................................................Defendant/Petitioner.
 
Vs.
 
Smt. Ram Kumari and others.........................Plaintiffs/Respondents.
 

 

 

 
Hon'ble Rajes Kumar, J.

This is the petition by the tenant of property no. 35/471 Naubasta Lohamandi Bharatpur Road, Agra measuring 100 sq. mts. land with Chhappar, challenging the order dated 21.5.2013 passed by the Additional District Judge, Court No. 5, Agra.

The brief facts of the case are that Sri Fateh Narain Singh alleging himself to be adopted son of Sri Gaya Prasad had filed S.C.C. Suit No. 777 of 1982 in the court of Judge, Small Cause Court, Agra through Sri Amolak Chand, son of Sri Kunnu Lal alleged to be guardian of plaintiff against the petitioner as defendant no. 1 and Sri Shanker Lal as defendant no. 2. Subsequently, Sri Ram Charan @ Nate was impleaded as defendant no. 3 through order of amendment dated 21.5.2001. Later on, he died and word deceased has been mentioned against his name by order of the Court dated 18.5.2010. Sri Tika Ram, father of the petitioner, was the tenant of a piece of land with Chhappar and disputed property situated in Naubasta, Bharatpur Road, Agra being property no. 35/471 at the rate of Rs. 50/- per month. The said suit was filed for eviction and recovery of damages on the ground of default and also on ground of wrongful occupation of Kothari which was not in tenancy.

It may be mentioned here that the property in dispute was owned by one Sri Gaya Prasad and Fateh Narain Singh was the adopted son of Sri Gaya Prasad. Sri Gaya Prasad had two brothers, namely, Sri Gaya Prasad and Sri Chunni Lal. Sri Gaya Prasad had no son. Sri Chunni Lal had two sons, namely, Amolak Chandra and Sri Fateh Narain Singh. Subsequently, Sri Fateh Narain Singh has been adopted by Sri Gaya Prasad. In this way, Sri Fateh Narain Singh and Sri Amolak Chandra were real brothers. Sri Fateh Narain Singh was unmarried and had no issue. After the death of Fateh Narain Singh, Sri Amolak Chandra inherited the entire property, including the property in dispute. Sri Fateh Narain Singh died during the pendency of the suit. After the death of Fateh Narain Singh, Sri Amolak Chandra has been impleaded as the plaintiff. Sri Amolak Chandra also died during the pendency of suit and, therefore, his wife Smt. Ram Kumari, and son Sri Shiv Narain Singh have been impleaded as plaintiff nos. 1/1/1 and 1/1/2.

The S.C.C. Suit no. 777 of 1982 was contested by the petitioner and the written statement was filed.

The trial court rejected the suit and recorded a finding that the tenant was not in default for arrear of rent.

Being aggrieved by the order of the trial court, the plaintiffs filed revision which has been allowed and the matter has been remanded back to the trial court to consider the validity of the deposit of the amount by one Sri Devendra Kumar. After the remand of the case, the trial court framed eight issues. The trial court on the basis of the evidence on record has decided all the issues in favour of the plaintiffs and decreed the suit. Aggrieved by the order of the Judge Small Cause Court, Agra dated 22.9.2010, the petitioner filed revision, being revision no. 55 of 2010. The said revision has been partly allowed by the impugned order dated 21.5.2013. The revisional authority has set aside the order of the Judge Small Cause Court, Agra relating to the direction of ejectment and payment of damages for unauthorized occupation. It has been observed that it is open to the defendant to take a separate proceeding for the eviction relating to the unauthorized possession. The revisional authority, however, affirmed the order of the trial court whereby the suit of ejectment has been decreed in respect of the property in tenancy.

Heard Sri M.A. Qadeer, learned counsel appearing on behalf of the petitioner and Sri Swapnil Kumar, learned counsel appearing on behalf of the respondents.

Learned counsel for the petitioner submitted that Sri Fateh Narain Singh was the land lord. The suit filed by Sri Amolak Chandra was not maintainable inasmuch as neither he has been appointed as a guardian nor he was an agent or had a power of attorney. He further submitted that in all the tenders, the names of original tenants Tika Ram and Sri Devendra Kumar were mentioned. The payment was made by Tika Ram and, therefore, such payment should be treated as a rent and cannot be ignored. Both the courts below have erred in not treating the amount paid by a tender in which the names of Tika Ram and Sri Devendra Kumar were mentioned as the proper payment of rent and in arriving to the conclusion that the defendant-petitioner was in arrear of rent. He further submitted that both the courts below erred in coming to the conclusion that even after the notice, the payment has not been made in accordance to law and even the deposit has not been made on the first day of hearing inferring that the petitioner was in default in payment of rent and was in arrear.

Sri Swapnil Kumar, learned counsel appearing on behalf of the respondents submitted that the suit was filed by Sri Amolak Chandra as the next friend of Fateh Narain Singh as Fateh Narain Singh was of unsound mind, which was permissible under Order 32 Rule 1 C.P.C. and under Order 32 Rule 4 of C.P.C. He could act as a guardian and for that no order of any court appointing him as a guardian was required. It is admitted that Sri Amolak Chandra was receiving the rent on behalf of Fateh Narain Singh and the receipt of the same has also been issued by him and he all along acted as an agent. The suit filed by Fateh Narain Singh through Sri Amolak Chandra as a next friend was legally maintainable. He further submitted that after the death of Fateh Narain Singh during the pendency of suit, Sri Amolak Chandra being the legal heir was substituted as plaintiff no. 1/1 and on the death of Amolak Chandra, his wife and son have been substituted as plaintiff nos. 1/1/1 and 1/1/2. The substitution applications have been allowed, which have not been disputed. The trial court has recorded the finding in this regard, which is wholly justified. He further submitted that admittedly, the tender was prepared by Tika Ram and Sri Devendra Kumar. Tika Ram was the sole tenant. Sri Devendra Kumar has never been admitted as a tenant impliedly or expressly by the land lord. Therefore, the deposit by the tender, in which the name of Sri Devendra Kumar was also mentioned could not be treated as the amount deposited towards rent by Tika Ram and accordingly the plaintiffs had refused to accept such rent as it was not in accordance to law. In para-19 of the written statement, it is stated that Tika Ram formed a partnership firm to carry on the business and Sri Devendra Kumar was one of the partners and, therefore, the tenancy in the name of Sri Devendra Kumar also stands regularized, shows that there was an ulterior motive in mentioning the name of Sri Devendra Kumar in the tender with the object to regularize the tenancy in his name also. In the circumstances, the deposit by the tender in which the names of Tika Ram and Sri Devendra Kumar were mentioned, was invalid and could not be treated as the deposit of rent and has rightly been ignored. The notice was issued in the month of May. The said suit was filed in the month of July and the amount has been deposited in the month of September. Any amount deposited after filing of the suit under Section 30 of the Act was inadmissible. After filing of the suit, the amount ought to have been deposited in the suit proceeding. No benefit has been claimed under Section 20 (4) of the Act. Therefore, the said deposit in the month of September has been rightly treated as deposit not in accordance to law. He submitted that the findings of both the courts below are finding of facts, which do not require interference.

I have considered rival submissions and perused the impugned orders.

Order XXXII Rule 1 C.P.C. provides that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Further Order XXXII Rule 4 C.P. C. provides that any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit.

There is no dispute that Sri Fateh Narain Singh was of unsound mind. The suit was filed by him through Sri Amolak Chandra as a next friend. When C.P.C. itself permits filing of suit by unsound mind by a next friend, it is wholly irrelevant that next friend has been appointed as a guardian or not. During the life time of Sri Fateh Narain Singh, Sri Amolak Chandra was receiving the rent and also issuing the receipts and acted as an agent. His agency has been admitted by the tenant by acknowledging the receipts being issued by him. Therefore, filing of the suit by Sri Fateh Narain Singh through Sri Amolak Chandra cannot be said to be non-maintainable by any reason. Sri Amolak Chandra was the real brother of Sri Fateh Narain Singh and after the death of Sri Fateh Narain Singh, he was substituted as a legal heir and after the death of Sri Amolak Chandra, his wife and sons have been substituted. No objection has been raised by the petitioner at the time of substitution. Therefore, the submission of the petitioner that the suit filed by Sri Fateh Narain Singh through Sri Amolak Chandra was not maintainable, is not sustainable.

Now coming to the question whether the petitioner was in default in payment of rent. Tika Ram is the tenant. Admittedly, the rent has been deposited by the tenders showing the names of Tika Ram and Sri Devendra Kumar. The amount deposited by such tenders in which the names of Tika Ram and Devendra Kumar were mentioned cannot be considered as a proper deposit and the benefit of such deposit cannot be given and the petitioner would be in default.

In para-19 of the written statement, it is stated that Tika Ram formed a partnership firm to carry on the business and Sri Devendra Kumar was one of the partners and, therefore, the tenancy in the name of Sri Devendra Kumar also stands regularized. It is not the case of the petitioner that Sri Devendra Kumar falls within the purview of family as defined under Section 3 (g) of the Act. Sri Devendra Kumar was never admitted as a tenant. It appears that by mentioning the name of Sri Devendra Kumar in the tenders, Tika Ram intended to regularize his tenancy also. In any view of the matter, Tika Ram was the sole tenant and Sri Devendra Kumar has not been admitted as the tenant. The deposit of rent by Tika Ram and Sri Devendra Kumar jointly by the tenders under Section 30 of the Act was invalid and could not be treated as the deposit by Tika Ram. Further the notice was issued in the month of May. The suit was filed in the month of July and the amount has been deposited in the month of September. Any amount deposited after filing of the suit under Section 30 of the Act was inadmissible. After filing of the suit, the amount ought to have been deposited in the suit proceeding. Moreover, no benefit has been claimed under Section 20 (4) of the Act. Therefore, the deposit in the month of September has been rightly treated as deposit not in accordance to law.

In the case of Harish Tandon Vs. Additional District Magistrate, Allahabad, U.P. and others, reported in 1995 (1) ARC 220, the Apex Court has held that if a person is not a family member as defined under the Act is inducted as a partner, then the tenant shall be deemed to cease as a tenant.

In the case of Haider Abbas Vs. Additional District Judge and others, reported in 2006 (1) ARC 341, the Division Bench of this Court has held that if any deposit made under Section 30 of the Act after filing of suit, it cannot be considered.

In the case of Daya Ram Shiv Hare Vs. VIIIth Additional District Judge, Jalaun at Orai and others, reported in 2000 (1) ARC 79, this Court has held that rent deposited under Section 30 (1) of the Act after the expiry of 30 days notice cannot be treated as a valid deposit.

In the case of Madhu Mittal (Smt.) Vs. Vth Additional District Judge, Ghaziabad and others, reported in 2004 (2) ARC 326, this Court has held that rent deposited under Section 30 of the Act after notice is not valid.

In a recent case in the case of Mohammad Azim and another Vs. Gopal Singh, reported in 2013 (1) ARC 44, this Court has held that if valid deposit was not made under Section 30 of the Act, no benefit could be given.

In view of the above, I do not find any merit in the petition. The writ petition fails and is dismissed. However, the petitioner is allowed three months' time to vacate the premises, provided, the petitioner gives an undertaking to this effect before the Judge, Small Cause Court, Agra.

Dated : 26thJuly, 2013

OP