M.V. Narayanan & Another vs Mahipal Sharma
2014 Latest Caselaw 6563 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. -1
 
Case :- CIVIL REVISION No. - 380 of 2005
 

 
Revisionist :- M.V. Narayanan & Another
 
Opposite Party :- Mahipal Sharma
 
Counsel for Revisionist :- Himanshu Tewari,Ashish Mishra,M.K. Gupta,Sri Krishna Yadava
 
Counsel for Opposite Party :- Krishna Yadava,A.K.Gupta
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (Act No. 9 of 1887) is preferred by the plaintiff/landlord against the judgement and order of the Judge, Small Causes Court, whereby the suit for ejectment, recovery of rent and damages has been dismissed.

2. The foundational facts are; the revisionist is a landlord of the House No. B-230, Lohiya Nagar, Ghaziabad. The opposite party took the aforesaid house on rent from landlord w.e.f. 01.05.1999 at the monthly rent of Rs. 2300/- (Rupees two thousand three hundred only). The tenancy was from month to month.

3. It is stated that it was agreed that apart from the aforementioned rent the tenant shall also pay the water tax and sewerage tax as per bill raised by the Municipal Corporation, Ghaziabad from time to time. It was also agreed that the tenant will pay the electricity charges directly to the electricity department as per the bills of the said department.

4. The premises in question consists of two rooms, varandah (covered), kitchen, bathroom, toilet and vacant back and front yards. The tenant has deposited a sum of Rs. 4600/- i.e. two months' rent as security, refundable either at the time of vacation of the house in question or to be adjusted towards the rent due or in other charges remained due against the tenant.

5. The cause of action to file the eviction suit arose when the opposite party-tenant failed  to make the payment of the rent from 01.07.1999 onwards. The revisionist plaintiff issued a notice dated 14 May 2001 under the registered cover calling upon him to pay the entire amount of rent within 30 days from the receipt of the said notice. As stated above, in addition to the rent the tenant was also liable to pay water tax and sewerage tax.

6. Previously a notice under Section 106 of the Transfer of Property Act, 1882 (Act No. 4 of 1882) dated 08 March 2001 was already sent to the defendant/tenant through the UPC (Under Postal Cover). By the said notice the tenancy of the opposite party/defendant was determined. It is averred that the defendant/opposite party failed to vacate the house even after the expiry of period of notice.

7. The revisionist/landlord instituted a Suit for the arrears of rent, eviction and damages in the Small Causes Court, which was registered as SCC Suit No. 5 of 2002 in the Court of JSCC/ Additional District Judge, Ghaziabad. The said suit was filed interalia on the ground that apart from default in payment of the rent the defendant/tenant has also caused material alteration in building in question and some additional construction has also been made by him. The effect of his illegal construction has caused serious damages to the building and due to said alterations the building has become disfigured and its value has also been diminished.

8. It was stated that the market rate of the rent in the vicinity was Rs. 3500/- per month. Thus on the basis of the aforesaid facts the revisionist landlord sought the relief for a decree of actual and vacant possession over the property; a decree of sum of Rs. 65136/-; damages for use and occupation from 02 July 2001 till the date of ejectment at the rate of Rs. 3500/- per month as cost of the suit.

9. The tenant /defendant contested the suit and filed the written statement. The defence taken in the written statement is that tenant has filed the suit for permanent injunction against the landlord in the court of Civil Judge, Junior Division, being Suit No. 416 of 2000 (Mahipal Vs. M.V. Narayanan). In the said suit an interim injunction has been granted against the landlord, who has filed a Misc. Appeal No. 26 of 2001 before the Additional District Judge, which was pending at the time of filing of WS.

10. It is alleged that on account of filing of the said suit the revisionist/plaintiff has filed the present suit for eviction. It is also stated that there was no agreement between the parties that the tenant shall pay the water tax and sewerage tax etc. and neither there is any such law which requires that the tenant shall be liable to pay the water tax and sewerage tax. He has also denied the arrears of rent on the ground that at the time of letting out the premises to the tenant/opposite party he had given an advance of Rs. 50,000/- against security. The landlord had not issued any receipt for the same, thus there is no outstanding rent.

11. As regards the construction raised by the defendant, it is averred in the Written Statement that the house in question was in dilapidated condition, therefore, the landlord had permitted him that necessary construction may be made and with his permission he had constructed a room of the tin-shed and stone and has also raised 10 ft. wall outside of the house. It is stated that in raising all these constructions the tenant has incurred the expense of about Rs. 32,000/-. The tenant has denied the receipt of the notice under Section 106 of the Act No. 4 of 1882.

12. I have heard Sri K.N. Tripathi, learned Senior Advocate assisted by Sri Ashish Kumar, learned Counsel for the revisionists, and Sri A.K. Gupta, learned Counsel for the opposite parties.

13. Sri K.N. Tripathi, learned Senior Counsel submits that the liability for the payment of the water tax is on the tenant in terms of Section 7 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972). Admittedly, the tenant has not paid the water tax thus the tenant has committed a default in payment of the water tax.

14. He further submitted that the tenant has raised several constructions without the permission of the landlord. The constructions raised by the tenant has disfigured the building thus, even if, it is assumed that the provisions of U.P. Act No. 13 of 1972 are applicable to the premises he is liable to be evicted in terms of Section 20(2)(c) of the U.P. Act No. 13 of 1972. He further urged that the findings recorded by the court below that the rent of the accommodation is Rs. 1100/- and not Rs. 2300/- is perverse and against the evidence on the record. He has invited the attention of the Court to the copy of plaint filed by the tenant against the landlord for permanent injunction in the court of Civil Judge (Junior Division), Ghaziabad. In his plaint in paragraph-4 he has admitted that a sum of Rs. 4600/- was deposited as advance and a receipt of the said amount was issued by the landlord.

15. According to Sri Tripathi in view of the said admission it was established that the landlord had issued a receipt of Rs. 4600/- to the tenant thus the finding of the court below that the receipt produced by the landlord was fabricated one, is unsustainable. He further urged that the court below has totally ignored the evidence of Madhu Sudanan, who was the witness of the security deposit receipt. In his affidavit he has clearly averred that the tenant Mahipal Sharma had paid the security of two months rent at the rate of Rs. 2300/- per month. The said security was paid to the landlord in the presence of one Sri Manish Kackar and Sri Madhu Sudanan.

16. Sri A.K. Gupta, learned Counsel for the tenant submits that the rent was Rs. 1150/- and the landlord has not filed any documentary evidence to prove that the rent was Rs. 2300/- per month. Sri Gupta has also submitted that the court below has rightly relied on the self assessment, which indicates the rent at the rate of Rs. 1100/- per month. He further submitted that the landlord has not proved that the construction made by the tenant diminished the premises as disfigured the building. Lastly he contended that this Court has limited jurisdiction under Section 25 of the Provincial Small Causes Courts Act, 1887 and no interference is called in view of the limited revisional jurisdiction of Section 25 of the Act No. 9 of 1887.

17. I have heard learned Counsel for the parties, considered the rival submissions and perused the record.

18. The Section 7 of the U.P. Act No. 13 of 1972 enjoins that the tenant shall be liable to pay to the landlord, in addition to and as a part of the rent the water tax. The Section 7 reads as under;

"7. Liability to pay taxes.----Subject to any contract in writing to the contrary, but notwithstanding anything contained 1[in Section 149 of the Uttar Pradesh Municipalities Act, 1916) the tenant shall be liable to pay to the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof, if any, payable in respect of the building or part under his tenancy, namely----

(a) the water tax;

(b) twenty-five per cent of every such enhancement in house tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the increase in the assessment of the building as a result of the enhancement of rent under the provisions of Section 5 :

Provided that nothing in this section shall apply in relation to a tenant the rate of rent payable by whom for the time being (excluding any enhancement of rent under provisions of Section 5) does not exceed twenty-five rupees per month.

19. As is evident from the perusal of the said Section the tenant is liable to pay the water tax in absence of any contract. Admittedly, the tenant-respondent has not paid the water tax. No contrary averment has been pleaded by the tenant-respondent before the court below thus it is held that the tenant-respondent has made a default in the payment of the water tax.

20. This Court in the case of Deepak Salotri v. Anwar Shah, 2008(1) ARC 447, has considered the Section 7 of the U.P. Act No. 13 of 1972. Relevant part of the judgement reads as under;

11. The case of M/s Hotel Kings (supra) is therefore, clearly distinguishable from the facts of this case as Section 7of U.P. Act No. 13 of 1972 clearly specifies that water tax is a part of rent and the definition of rent in Bombay Rent Act would not be applicable to the State of U.P. which has its own Uttar Pradesh (Regulation of Letting, Rent and Eviction) Act, 1972. Section 7 of the Act is as under:-

"7. Liability to pay taxes-Subject to any contract in writing to the contrary but notwithstanding anything contained in Section 149 of the Uttar Pradesh Municipalties Act, 1916, the tenant shall be liable to pay to the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof, if any, payable in respect of the building or part under his tenancy, namely;

(a) the water -tax;

(b) twenty-five per cent of every such enhancement in house tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the increase in the assessment of the building as a result of the enhancement of rent under the provisions of Section 5;

Provided that nothing this section shall apply in relation to a tenant the rate of rent payable by whom for the time being (excluding any enhancement of rent under provisions of Section 5) does not exceed twenty-five rupees per month."

21. The next submission raised by learned Counsel for the revisionists-landlord is that the tenant has disfigured the premises thus he is liable to be evicted on the ground of Section 20(2)(c) of the U.P. Act No. 13 of 1972. Section 20(2)(c) reads as under;

"20.(2)(c).----that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;

22. The landlord in his notice dated 08 March 2001 has mentioned that the tenant has materially altered the building in question without consent of landlord and due to the said alteration the building has become disfigured and as such its value has also been diminished. In paragraph-11 of his plaint also he has averred that without permission of the landlord the tenant has made material alteration in the building in question. Some additional constructions have also been made by the tenant. The detail of such construction has been stated by the landlord. According to the landlord the following constructions have been raised;

(i) the tenant has raised the northern and eastern boundary walls of the front open lawn of the house;

(ii) he has constructed a room with G.I. Sheets roof in the eastern-southern corner in the back open yard of the house;

(iii) has raised the eastern and southern wall and constructed new western wall without the consent and permission of the plaintiff in the month of January 2000.

23. It was also stated that due to said alteration the building has become disfigured and its value has been diminished. Thus statement of the fact has not been denied in paragraph-17 of the written statement rather it has been admitted that when the tenant has taken the house on the rent it was in dilapidated condition and the landlord has permitted him to raise this construction. He had also assured that whatever the expenses will be incurred by the tenant it shall be adjusted against the rent. It is stated that on the assurance of the landlord the constructions were made and tenant has incurred a cost of Rs. 32,000/- but the said amount has not been adjusted.

24. The aforesaid pleading of the tenant in the W.S. clearly established that the tenant had raised certain constructions but he has not found any written permission of the landlord. No evidence has been adduced by the tenant to establish the fact that the landlord had permitted him to raise those constructions. This Court in the case of Jagdish Chandra Verma v. Smt. Hansmukhi Devi (Dead) through Lrs., 2009(77) ALR 110 has held that the word 'disfigurement' used under Section 20(2)(c) of the U.P. Act No. 13 of 1972 has not been defined under the Act. The Court has also held that if the existing shop and building is adversely affected, it may amount disfigurement. Paragraph nos. 22 & 23 of the judgement read as under;

"22. Disfigurement has not been defined in the U.P. Act No. 13 of 1972. If the existing shape and beauty of the buuilding is adversely affected consequent upon the raising of a disputed construction either in or upon the building, it may amount to disfigurement. No principle of universal application as to what amount to disfigurement can be laid down, it will depend upon the facts and circumstances of each case. Each case must, therefore, be judged in the light of its own facts and circumstances for determining whether the offending construction does cause any disfigurement or not. The matter has been considered by this Court in Smt. Rajrani Kapoor v. Bhupindera Singh.2 The relevant paragraph 15 is reproduced below:-

"15. 'Disfigurement' has not been defined in the Act. However according to the ordinary dictionary meaning, "disfigurement" means "to spoil the figure, to deform; spoil the beauty; to change to a worse form or to make it ugly." Thus if the existing shape and the beauty of the building is adversely affected consequent upon raising of the disputed construction either in or upon the building, it may amount to disfigurement. However, it is neither proper nor possible to lay down any hard and fast rule in this respect. Each case must depend upon its own facts. Each case must, therefore, be whether the offending construction does cause any disfigurement or not. In some cases, even as so called work of improvement may result in disfigurement of building. Where, for example, a building is of old style having ornamental work on its front elevation but it is partly changed according to modern concept of architecture with plain plastered surface after the old worn out ornamental plaster has peeled of, it may in some cases result in disfigurement. 'Similarly, if, a tenant puts up a cow-shed on the lawns of a bungalow or in the open land in front of the main building or in the area left as set back in the front side some walls are raised to form an enclosure or a part of it is converted into an open air toilet, these may certainly amount to disfigurement of the building'. Thus disfigurement has nothing to do with improvement or otherwise but must be seen in the lights of the effect the offending construction has on the mind of an average person on seeing it. Disfigurement does not depend upon any single factor but is the cumulative effect of a variety of circumstances such as the pace, nature, magnitude and its effect on the look of the existing construction and on the over all appearance of the building."

23. In Mool Narain Mehrotra v. Smt. Gulab Devi3 the constructions were raised on a vacant land and was covered by pucca construction at the instance of the tenant without there being the permission of the landlord in this respect. It has been laid down that the constructions had to be from the point of view of the landlord and not at the convenience of the tenant alone. The vacant land has its own utility in the premises, independent of a situation etc. It was held that the construction of eight rooms on the vacant land definitely disfigured the building let out to the tenant."

25. The similar view was taken by this Court in the case of (Smt.) Raj Rani Kapoor v. Bhupinder Singh, 1986(12) ALR 580. The relevant part is extracted hereunder;

"In ordinary parlance, 'construction' means some thing done to hold together the various constituents of a structure depending upon the nature of type of the construction. If it is made of masonry, the masonry work of brick or stone may be done by mud or mortar or cement or in some other manner. If it is made of steel or fabricated and is held together by nuts and bolts it may still be some kind of construction although the various constituents are capable of being dismantled without causing any violence to its structure. The material used in the construction or the mode of joining together of its constituent parts is thus not the deciding factor. It is also immaterial whether the structure raised is a temporary or permanent nature, whether it can be removed without causing any damage to the building. What is really material for the purposes of sub-clause (c) is that some construction should have been made. One striking feature of a 'construction' is the fact that it cannot be moved or displaced as it is from one place to another. When the structure is such which can be moved or shifted bodily from place to place without requiring its demolition or dismantling it cannot really be a 'construction' in its true sense. A flower pot or a steel container can not normally be said to be 'construction' but when the same flower pot is permanently fixed to the ground, it may become one. Therefore, merely because the shed can be dismantled or removed without causing any damage to the main construction is not in itself a sufficient ground to hold that it is not 'construction' of the nature referred to in sub-clause (c) of Section 20 (2)."

26. Applying the aforesaid principle in the facts of the present case it can be safely held that the findings of the court below on the alteration is illegal. As regards the finding of the court below that the landlord has failed to prove that the rent was Rs. 2300/- per month, I find that the said finding is unsustainable for the reason that the landlord had filed a receipt for security deposit dated 01.05.1999. The court below has primarily rejected those document on the ground that there was no signature of the tenant.

27. Learned Counsel for the tenant respondents Sri A.K. Gupta has failed to point out any law which requires that the rent receipt should be jointly signed by the landlord and the tenant. Moreover, those document as referred by the tenant in his plaint in Suit No. 416 of 2000 filed by the tenant against the landlord for permanent injunction. In paragraph-4 of the said plaint there is reference of those rent receipt although it was mentioned that Rs. 4600/- was the advance rent for four months, whereas according to the landlord it was an advance rent for two months rent thus according to the landlord the rent was Rs. 2300/-.

28. Be that as it may, existence of the document has not been denied by the tenant. The only issue which needs to be decided is whether it was a rent for four months or two months. In view of the said fact the finding recorded by the court below disbelieving the existence of the rent receipt itself is unsustainable. As observed above, the court below has ignored the affidavit of Madhu Sudanan of witness and the rent receipt has been totally ignored.

29. Much reliance was placed by Sri A.K. Gupta on a self assessment document, which was filed by the tenant to establish that the rent was Rs. 1150/-. Sri Tripathi has pointed out that no date is mentioned on the said document. Therefore, no reliance can be placed on the said document.

30. For the aforesaid reasons, I find that the findings of the court below on the aforesaid issues, are unsustainable and as such the judgement of the court below dated 11.08.2005 is set aside. The matter is remitted to the court below to decide the matter afresh expeditiously.

31. Thus the revision is allowed.

32. No order as to costs.

Order Date :-17.9.2014

DS/-