Smt. Parwati Devi vs Shri Chaturi Lal
2017 Latest Caselaw 5797 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 30
 
Case :- MATTERS UNDER ARTICLE 227 No. - 6563 of 2017
 
Petitioner :- Smt. Parwati Devi
 
Respondent :- Shri Chaturi Lal
 
Counsel for Petitioner :- Anshul Kumar Singhal,Vinod Kumar Agarwal
 
Counsel for Respondent :- Vishnu Dutt Tiwari
 

 
Hon'ble Vivek Kumar Birla,J.

Heard Sri Vinod Kumar Agarwal, learned counsel for the tenant-petitioner and Sri Vishnu Dutt Tiwari, learned counsel for the landlord-respondent and perused the record.

Present petition has been been filed challenging the judgement and order dated 4.8.2017 passed by the Additional District Judge, Court No. 12, Agra.

S.C.C. Suit was filed by the landlord-respondent claiming himself to be the owner of the shop after he has purchased the property in question from Lala Ram by a registered sale deed and that the petitioner is tenant on ground floor of one room at the rate of Rs. 50/- per month and other taxes. The suit was contested by the tenant-petitioner claiming herself to be the owner of the property in question. The suit was dismissed by the trial court but the revision filed by the landlord was allowed by the revisional court holding that in civil proceedings it has been concluded that the landlord (respondent herein) is the owner of the property in question and therefore, there exists landlord-tenant relationship. It was further held that since the petitioner was held to be the tenant in the accommodation, the benefit of deposit made under Section 20(4) of the UP Act No. 13 of 1972 (hereinafter referred to as the 'Act') cannot be granted. The trial court had held that there is no landlord-tenant relationship and for this reason it has not considered the question relating to the benefit of Section 20 (4) of the Act.

Submission of the learned counsel for the tenant-petitioner is that the revisional court has committed an error in recording a finding regarding relationship of landlord-tenant contrary to the findings given by the trial court and finding on this issue is incorrect and in case the owner has unauthorized occupation, the civil court has jurisdiction to order of eviction. It is further submitted that the order has been passed in exercise of power under Section 25 of the Provincial Small Cause Court Act as if the Court was sitting in appeal and as such, the judgement is liable to be set aside. He has further pointed out that the petitioner has filed a suit no. 638 of 2991 for injunction claiming herself to be owner of the property in question. The aforesaid suit was dismissed and first appeal was partly allowed and thereafter the second appeal was filed before this court in the year 2002, which was pending when the suit of rent was filed in the year 2000. The rent was deposited on the first day of hearing and therefore, he is entitled for benefit of the same even if the second appeal was dismissed in the year 2014.

Learned counsel for the petitioner has placed reliance on the judgements of Hon'ble Apex Court in the case of Ghoorey Lal vs. Sheo Murti Gupta and another, 1995 (2) ARC 4 (SC) and the judgement of this Court in the case of Satya Prakash Garg vs. XIth Additional Sessions Judge, Bulandshahr, 2008 (2) ARC 815.

Per contra, learned counsel for the landlord-respondent has supported the judgement and submitted that there is no perversity in the order impugned herein and the impugned judgment does not warrant any interference.

I have considered the rival submissions and perused the record.

From perusal of the record, it is clear that the petitioner is claiming ownership of the property in question and had contested the suit throughout. The petitioner had filed injunction suit as back as in the year 1991 claiming herself to be the owner of the property in question. First appeal was partly allowed and ultimately her second appeal was dismissed in the year 2014. No doubt that the present proceedings were initiated in the year 2002 by filing SCC Suit No. 60 of 2002. The trial Court had initially decreed the suit and the revisional Court remanded back the matter to the trial court on 21.9.2012 and the trial court dismissed the suit on 18.11.2016, against which the revision no. 22 of 2016 was filed. There is no dispute that on the date of filing of the revision, the second appeal filed by the petitioner was pending before this Court, which was dismissed in the year 2014. A finding has been returned by the first appellate court in Civil Appeal No. 370 of 1997 decided on 5.10.1999 while dismissing the civil appeal that the petitioner was a tenant in one room and injunction was granted to the extent that without initiating the proper and legal proceedings, the petitioner may not be evicted. Thereafter, the present SCC suit was filed in the year 2002. The second appeal was ultimately dismissed. The deposit of rent under Section 20(4) of the Act on the first day of hearing is also not in dispute, therefore, I do not find any legal infirmity in the findings so arrived at by the court below that there exits landlord-tenant relationship and the suit was maintainable against the petitioner.

The question as to whether the petitioner was entitled for the benefit of Section 20(4) of the Act is concerned, the revisional court has held that since the petitioner had denied the title of the landlord, therefore, such benefit cannot be extended to the petitioner.

The law has been settled on this question by the Hon'ble Apex Court that in a case where tenant has contested the suit denying title of the landlord and ultimately it is held that he is not owner of the property in question, the benefit of Section 20(4) of the Act cannot be extended, as such deposit is conditional in nature.

Judgement of Hon'ble Apex Court in Ghoorey Lal (supra) is quoted as under:

" In this case having regard to the stand taken by the appellant in his written statement, we think it is not an unconditional deposit under Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act XIII of 1972). In Fact, after narrating that the landlord did  not have title in paragraph 15 it is averred:

"That though the respondent, in the above circumstances, does not admit to being the tenant of the plaintiff, still, without prejudice to his rights regarding the rate of rent, has deposited on September 21, 1978, the entire alleged rent from August 1, 1975 to July 31, 1978 at the rate of Rs. 10 per month along with cost of the suit and interest thereon, in total Rs. 553.25 by tender dated September 21, 1978 in the Court of Judge, Small Cause Court, Allahabad in Sheo Murti Gupta vs. Ghooreylal, Suit No. 335 of 1978. Therefore, the respondent is entitled to the protection given by Section 20(4) of the U.P. Act No. 13 of 1972 against eviction."

2. The fact that even here no unmistakable term denies the title of the landlord would amount to a conditional deposit. The Court below is correct. The Civil appeal stands dismissed. The question of grant of time is left to the Executing Court. No costs."

Paragraph 17 of the judgement of this Court in Satya Prakash Garg (supra) is also quoted as under:

"17. In my opinion the trial Court has rightly held that the benefit of Section 20(4) of the Act cannot given where a tenant has denied the title and ownership of landlord and the landlord has not condoned the conduct of the tenant and that this benefit can only be given, where there is a default and the tenant has deposited the entire arrears of rent on or before the first date of hearing even if is presumed for the sake of argument that the provisions of Section 20(4) of the Act apply to the facts and circumstances of this case. Admittedly the respondent-tenant has not paid rent to the petitioner or to Sri Om Prakash or to Sri Suresh Chandra alleged to be co-owners of the shop in dispute but has paid the rent to Rakesh Kumar S/o Sri Om Prakash who is nephew of the petitioner and not the owner and co-landlords of the shop in dispute, hence on this ground alone the writ petition is liable to be allowed."

In this case also, the petitioner is claiming herself to be the owner and in any case, does not admit to being the tenant of the plaintiff.

Thus, it is clear that once the title of the landlord is denied and a finding is returned against the tenant in respect of relationship of landlord and tenant, the deposit would be conditional in nature. In the present case, the tenant claimed herself to be the owner and lost in civil litigation. Hence, benefit of deposit of rent under made under Section 20(4) of the Act No. 13 of the Act can not be extended to her.

In such view of the matter, I do not find any legal infirmity in the findings so arrived at by the Courts below, therefore, the orders impugned herein are left without interference.

Present petition lacks merit and is accordingly dismissed.

Order Date :- 26.10.2017

Abhishek