Smt. Siddheshwari Dixit And Anr. vs Smt. Hasina Begum And Others
2019 Latest Caselaw 342 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- WRIT - A No. - 22074 of 2012
 

 
Petitioner :- Smt. Siddheshwari Dixit And Anr.
 
Respondent :- Smt. Hasina Begum And Others
 
Counsel for Petitioner :- Sudeep Kumar Singh
 
Counsel for Respondent :- R.P.Tiwari 
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard learned counsel for the parties.

The petitioners have called in question the judgement and decree dated 31.1.2012 passed by the District Judge, Jalaun at Orai in JSCC Revision No.1 of 2018, whereby the revision filed by the respondents (tenants) has been allowed and the judgement and decree dated 22.12.2007 passed by the Judge Small Causes Court decreeing the suit for eviction and recovery of arrears of rent has been set aside.

The facts in brief necessary for disposal of the instant petition are that the suit in question was instituted by Shiv Shankar Mishra, the predecessor-in-interest of the petitioners against Ibrahim Ansari, the predecessor-in-interest of the defendant-respondents. Both the original plaintiff and defendant have died during pendency of the proceedings and the petitioners and respondents herein were substituted in their place. According to the plaint case, the shop Gaddi No.2, alongwith open land measuring 27 feet x 18 feet was let out to the original defendant. The monthly rent was Rs.37/-. It was alleged that there was default in payment of rent by the defendant from 1.10.1994 to 30 April 1996 amounting to Rs.703/-. A notice dated 21.5.1996 demanding arrears of rent and determining the tenancy was served upon the original defendant on 22.5.1996 but he failed to pay the arrears of rent as per demand made in the notice making himself liable for eviction. It was also alleged that the deposit of rent from October 1994 to June 1996 in Misc. Case No.82/83 under Section 30 of the U.P. Act No. XIII of 1972 (for short 'the Act') by the defendant-tenant was illegal as the said deposit was made even after plaintiff had shown his willingness to accept rent directly by giving notice dated 29.11.1994 served upon the defendant on 5.12.1994. Accordingly, the plaintiff prayed for a decree for recovery of arrears of rent since 1.10.1994 amounting to Rs.777/- and for eviction. It was also alleged that the defendant had carried out structural changes in the demised premises, which had reduced its value and utility, thus making out ground for eviction under Section 20(2)(c) of the Act. Allegations were also made as to seek eviction on grounds specified under Section 20(2)(b) and (d) of the Act.

The defendant-tenant contested the suit by filing written statement asserting that he was being harassed by the landlord by filing one proceeding after the other in different courts for eviction. It was alleged that initially the plaintiff filed SCC Suit No. 24 of 1979 in the court of Munsif, Orai seeking eviction but which was dismissed and the revision filed by the plaintiff against the judgement of the trial court was also dismissed. The judgments were affirmed by this Court in Writ Petition No.9159 of 1983. The plaintiff also filed an application under Section 21(1) of the Act which was also dismissed and the order was maintained in Writ Petition No. 14684 of 1989 and by Supreme Court, while dismissing the S.L.P. The defendant asserted that he had been doing business of repairing iron shutters and channels and also engaged in business of ballis and bamboos. He categorically denied that he had defaulted in payment of rent. According to him when the plaintiff refused to accept rent it was deposited in Misc. Case No.82/83 under Section 30(1) of the Act and the entire rent was in deposit in the said proceeding except rent for the month of July 1996, which alongwith cost of the suit and other amount as contemplated under Section 20(4) of the Act was deposited on the first date of hearing. He also specifically denied having undertaken any structural change in the building so as to disfigure the same or which may have diminished the value of the tenanted premises. He also claimed that after receipt of notice dated 29.11.1994, he tendered rent to the plaintiff by money order dated 20.12.1994 for the months of October, November and December 1994 but which was refused by the plaintiff on 28.12.1994 consequently, rent for the said period and for future months was again deposited in Misc. Case No.82/83. There was no default in payment of rent nor any other ground for eviction under the Act is made out.

The trial court by judgment dated 22.12.2007 decreed the suit for eviction and recovery of arrears of rent. The trial court has observed that after receipt of notice dated 29.11.1994, the defendant sent rent to the plaintiff by money order Paper No.111-Ga, which was refused on 28.12.1994. The money order coupon was returned to the defendant on 6.12.1995 (sic 6.1.1995). However, the tenant had deposited rent in Misc. Case No.82/83 on 2.1.1995, even before return of money order coupon, therefore, the deposit is invalid and its benefit cannot be extended, while reckoning compliance of Section 20(4) of the Act. The rent deposited in the Court of Munsif, Orai was also illegal, as the jurisdiction in the matter was with Munsif Court, Kalpi. A passing reference has also been made to Rule 21 Form-F in holding that the tenant should have taken steps to get notice issued to the landlord informing him of the deposits made under Section 30 of the Act. Accordingly, the benefit of deposits made under Section 30 of the Act was not given to the defendant. The defendant was held to be a defaulter, liable to eviction. The other finding returned by the trial court was that the defendant had constructed a wall and closed a door on the eastern wall of the demised premises, resulting in reduction of the utility and value of the demised premises. It has also been held that it amounts to material structural changes, making out a ground for eviction under Section 20 (2) of the Act.

The revisional court, while allowing the revision, has held that since 1979 the plaintiff had been making repeated efforts to evict the defendant from the demised premises. The suit for eviction filed by him was dismissed. When the plaintiff refused to accept rent, the defendant was compelled to deposit rent under Section 30 in Misc. Case No.82/83. The defendant had been regularly depositing rent in the said proceedings and the plaintiff was not only aware of the same, but had been regularly withdrawing rent deposited in the said proceedings. The revisional court has also observed that after receipt of notice dated 29.11.1994, rent was tendered to the plaintiff by money order but which he refused to accept, therefore, the defendant-tenant was compelled to deposit the rent again in Misc. Case No.82/83 and rent upto June 1996 was deposited in the said case. On the date of filing of the written statement, rent of only one month i.e. July 1996 was due, which alongwith interest, cost etc. was deposited to avail the benefit of Section 20 (4) of the Act. The revisional court has held that the deposit of rent after receipt of notice dated 29.11.1994 was valid, as thereafter the rent was duly tendered to the landlord, but he refused to accept the same, thus giving rise to cause of action for depositing the same under Section 30 of the Act. Apart from it, the revisional court has also observed that the notice dated 29.11.1994 is vague and self contradictory and thereby the landlord had tried to create confusion and trap the tenant into committing default. It has also been observed that Misc. Case No.82/83 remained pending before Munsif Orai and was not transferred to Court of Munsif Kalpi, therefore, there was no illegality in deposit of rent by the defendant-tenant in the said proceedings. The revisional court has also held that issuance of notice in Form-F to the landlord has lost its significance as the landlord was aware of the pendency of Misc. Case No.82/83 and had been withdrawing rent therefrom. The court has found that rent till June 1996 was in deposit in proceedings under Section 30 and since July 1996, the rent was deposited in the suit alongwith cost etc. and thus, returned a categorical finding that the defendant was entitled to benefit of Section 20(4) of the Act.

The revisional court has also held that constructions made by the defendant was in order to carry out repairs in the demised premises, which was an old one being in his tenancy since last sixty eight years. He has not carried out any material alteration, nor the changes made had resulted in diminishment of value or disfigurement so as to warrant eviction under Section 20 (2)(c) of the Act.

Learned counsel for the petitioner submitted that the revisional court has re-appreciated the evidence on record. It has acted like an appellate court while deciding the revision, consequently, the impugned judgment is liable to be quashed. He further submitted that the deposit of rent under Section 30 after receipt of notice dated 29.11.1994 was invalid. It is also urged that since Munsif, Kalpi was having jurisdiction over the suit property, therefore, deposit of rent in Misc. Case No.82/83 before Munsif, Orai was also illegal and would not enure to the benefit of the tenant. He further submitted that the report of the Amin Commissioner on which reliance was placed by the trial court, had remained unrebutted, therefore, the trial court was justified in recording a finding of fact that the constructions undertaken by the defendant have resulted in disfigurement of the building and diminishment of its value. The revisional court erred in interfering with the said finding.

On the other hand, learned counsel for the defendant-respondent submitted that on the date of notice dated 21.5.1996, the defendant was not in arrears of rent, as contemplated by clause (a) of sub-section (2) of Section 20 of the Act, thus, no ground for eviction is made out. He further submitted that Misc. Case No. 82/83 under Section 30 was not transferred to Munsif, Kalpi. It continued to remain pending before Munsif, Orai, therefore, there was no illegality in case the rent of subsequent months was deposited by the defendant in the said proceedings. He further submitted that the report of Amin Commissioner even if taken to be correct, does not show that any disfigurement or material alteration had been carried out. The revisional court is therefore fully justified in setting aside the findings recorded by the trial court in this regard being based on no evidence.

I have considered the submissions made by learned counsel for the parties and perused the material placed on record.

The facts which are not in dispute at this stage are that on the date of issuance of notice dated 29.11.1994, rent upto September 1994 was in deposit in Misc. Case No.82/83. This is clear from the pleading in the plaint wherein the plaintiff admitted that the defendant had been depositing rent under Section 30 in Misc. Case No.82/83 and claimed arrears of rent only since 1.10.1994. The notice dated 29.11.1994 issued by Dr. S. K. Mishra, power of attorney of the plaintiff called upon the defendant to tender rent from November 1994 directly to the plaintiff and not to deposit the same in court. Although, the revisional court in view of the recitals contained in paragraphs 2 and 3 of the said notice, has found the notice to be vague, self contradictory and confusing but even if the said notice is treated to be a notice showing intention on part of the plaintiff to accept rent directly, the fact remains that in compliance of the said notice, defendant tendered rent of three months i.e. October, November and December 1994, directly to the plaintiff by money order dated 20.12.1994 amounting to Rs.111/-. The money order was returned to the defendant with an endorsement of refusal. Consequently, the defendant once again started depositing rent in Misc. Case No. 82/83. It is also not in dispute that before receipt of notice dated 21.5.1996, on basis of which suit was filed, rent till June 1996 was in deposit in Case No.82/83. On receipt of summons in the suit, the defendant deposited rent for the month of July 1996, which alone was due on that date, alongwith interest etc. in the suit on 12.8.1996 to avail benefit of Section 20(4) of the Act. Now, if the deposit of rent made by the defendant after receipt of notice dated 29.11.1994 was valid, as held by the revisional court, no rent was due against the defendant on date of demand notice dated 21.5.1996, whereas for making out case for eviction on ground of default in payment of rent, at least four months rent should be due on the date of notice and which the tenant fails to pay within one month of receipt of notice of demand.

Undoubtedly, after receipt of notice dated 29.11.1994, showing willingness to accept rent, it was incumbent upon the tenant to tender rent to the plaintiff directly. If the defendant had deposited rent in Case No. 82/83 without the same being tendered to the plaintiff directly, the deposit would be invalid. This is in view of Section 30(1) of the Act which provides as under :-

"30. Deposit of rent in court in certain circumstance. - (1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it."

The case of the plaintiff-respondents was that their power of attorney Dr. S. K. Mishra, to whom rent was sent by money order, was out of station, having gone to his village for performing last rites of his father. As such there was no question of his refusing to accept the rent tendered to him by money order. In other words, according to the plaintiffs the endorsement of refusal made on the money order coupon by the post-man is incorrect.

Concededly, the money order was sent at the correct address, but was received back with the endorsement of refusal made by the post-man. The revisional court is fully justified in holding that presumption under Section 114 of the Evidence Act would stand attracted. A mere filing of affidavit by the power of attorney holder that he was out of station, was not sufficient to rebut the presumption. No effort was made to summon the post-man to prove that the endorsement made was wrong. There is nothing on record to indicate that the power of attorney of the plaintiff who deposed as PW-1 took any such stand during his examination.

Even assuming the case of the plaintiff set up in this regard to be correct, nothing much turns upon the same. Tender of rent by money order is a recognised mode of payment of money to any person. It is not disputed that the money order was sent at the correct permanent address of the landlord and it was addressed to Dr. S.K. Mishra, general power of attorney holder of the plaintiff who had been accepting rent on behalf of plaintiff and also issued notice dated 29.11.1994.

In a case under the U.P. (Temporary) Control of Rent and Eviction, Act, 1947, a Division Bench of this Court in Abdul Baqi v. Aklaq Ahmad, 1962 All LJ 1146 held that :

"........... in case where a person is required to make a payment to another the duty of the former is to go to the house of the later and tender payment, and if there be clear evidence that he did so it must be held that there was full compliance with the requirement of making the payment provided that this was done within the time prescribed.

...................... It was further observed that there is ample authority for the proposition that the offer of payment at any reasonable hour at the normal place of residence of a person who is entitled to receive payment absolves the person bound to pay from any liability ensuing by reason of non payment irrespective of the question whether payment could not in fact be made because the payee refused to accept or was absent from his residence."

In Raees Akhtar Vs. II Additional District Judge and others, 1989 UPRCC 632, a similar controversy came up for consideration before this Court. In that case, the tenant had, in compliance of the notice of demand, remitted rent by money order but it was returned by the postal authorities with the endorsement that no person by that name could be found. In the said backdrop the Court considered whether the tenant had fulfilled his obligation of remitting rent to the landlord or had committed default in payment of rent. Placing reliance on Division Bench judgement of this Court in Abdul Baqi (supra) and a host of other decisions including Full Bench judgement in Bhikha Lal vs. Munney Lal, AIR 1974 (All) 366 it is held :-

".................The position thus is that the tenant has sent the rent demanded in the notice towards the arrears of rent within the period mentioned in the notice which under the normal condition should have reached within that time and if the landlord refuses to accept the same and despite efforts because of nonavailability money order could not be given to him the tenant would not be taken to be defaulter for non compliance with the notice is (sic in) not having paid the rent demanded. The putting of same in post office for actual payment the landlord would be payment to the agency for being paid to the actual payee."

Thus, tender of rent by money order dated 28.12.1994 was tender of rent to the landlord in compliance of notice dated 29.11.1994. As the money order was received back, may be for any reason, it gave rise to a cause of action in favour of the defendant to once again deposit the same in proceedings under Section 30 of the Act. It is not expected from the tenant that he will keep tendering rent to landlord until it is actually received by him. Consequently, deposit of rent by the defendant in Misc. Case No.82/83 under Section 30 of the Act, which was already pending on that date cannot be said to be illegal. Likewise, no adverse inference could be drawn against the defendant on account of deposit of rent under Section 30 on 2.1.1995, even before the actual receipt of money order coupon on 6.1.1995. The cause of action to deposit rent under Section 30 of the Act accrued in favour of the defendant on 28.12.1994, the date money order was refused. It is wholly immaterial when the money order coupon was received back by the tenant.

The view of the trial court that rent under Section 30 should have been deposited in the court of Munsif Kalpi, which was having jurisdiction over the shop has not been approved by the revisional court. It has observed, and rightly so, that proceedings of Case No.82/83 were not transferred to the Court of Munsif, Kalpi, but remained pending before the Court of Munsif, Orai. It is not in dispute that at the time when the case was initially filed, the Munsif, Orai was having jurisdiction in the matter, but later on an outlying Court of Munsif, Kalpi in district Orai was created (admitted in para 16 of the writ petition). Since proceedings of the case were not transferred to court of Munsif, Kalpi, but remained pending before the Court of Munsif, Orai, therefore, this Court finds no illegality in defendant's continuing to deposit rent before the Court where the case was pending.

The revisional court also rightly observed that the plaintiff had full knowledge of pendency of Misc. Case No.82/83 as he had been withdrawing rent deposited in the said proceeding, therefore even if notice in Form-F was not issued, it would be a mere irregularity, but would not invalidate the deposits made by the tenant. The Supreme Court in Mam Chandra Pal vs. Smt. Shanti Agarwal, 2002(1) ARC 370 has held that a very technical and pedantic view with regard to a beneficial provision should not be taken by court. The observation came to be made in context of Section 20(4) of the Act, the benefit of which was being claimed by the defendant. It has been held that :-

11. After the suit was filed the tenant was too willing and ready to clear all the dues so much so that he did it before the first date of hearing and made subsequent deposits as well to make it up to date. We feel that the whole purpose of enacting sub-section (4) of Section 20 of the Act is to do substantial justice between he parties. It covers those cases alone where the ground for eviction is default in payment of rent still the Legislature intended to provide an opportunity to a tenant for payment of rent. On availing of such an opportunity, equities between the parties are levelled as the landlord gets the amounts of arrears of rent and damages along with legal expenses and interest on the defaulted amount and the tenant is saved of liability of being thrown out of the premises. While considering the import of such provisions, it may have to be seen that the requirement of law is substantially and virtually stands satisfied. A highly technical view of the matter will have no place in construing compliance of such a provision. We may however, hasten to add that it is not intended to lay down that non compliance of any of the requirements of the provision in question is permissible. All the dues and amounts liable to be paid have undoubtedly to be paid or deposited on the date of first hearing but within that framework virtual and substantial compliance may suffice without sticking to mere technicalities of law."

This Court, does not find infraction of any provision of law or any prejudice having been caused to the plaintiff in case defendant continued to deposit rent, after refusal by the landlord, in Misc. Case No. 82/83. The revisional court was right in holding the said deposit as valid.

It is not in dispute that rent till June 1996 was in deposit in Misc Case No.82/83 and thus on the date of issuance of notice of demand dated 21.5.1996, four months rent was not due. The rent deposited in proceedings under Section 30 are deemed to be payment made to landlord. As such, the defendant not being in default in payment of rent of four months or more on the date of service of notice of demand dated 21.5.1996, no ground for eviction under Section 20(2)(a) was made out. Indisputably, the tenant had even deposited rent for subsequent months under Section 20(4) of the Act and thus rightly extended benefit of the said provision by the revisional court.

The next submission of learned counsel for the petitioner is that the revisional court has no power to re-appraise evidence, therefore, according to him, the revisional court was not justified in interfering with the finding recorded by the trial court regarding structural alteration carried out in the building and that it had resulted in diminishing its value and utility.

A Division Bench of this Court in Dr. Jai Gopal Gupta and others vs. Bodh Mal, 1969 ALJ 477 while answering a reference considered the phrase "any such construction as in the opinion of the Court, has materially altered the accommodation". It was a ground for eviction under Section 3 of U.P. (Temporary) Control of Rent and Eviction Act, 1947. In the said context, the Division Bench held that the Court is required to form opinion on three matters:-

"(1) The actual constructions made by the tenant; (2) the construction has altered the accommodation; and (3) the alteration is material."

The Division Bench thereafter proceeded to hold that:-

"The finding of the lower appellate court regarding the actual constructions made by the tenant is a finding of fact. But its opinion regarding the constructions being material alterations is one of law. The statute prescribes a standard. That standard is that the construction should materially alter the accommodation. Whether the actual constructions made in a particular case reach up to the statutory standard is, we think, a question of law."

Section 20 (2) (c) of the Act, relevant for purposes of the instant case, reads thus:-

"(c) that the tenant has without the premission in writing of the landlord made or permited 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."

The Supreme Court in Om Prakash Vs. Amar Singh and another, 1987 (13) ALR 163 considered a somewhat similar provision under U.P. Cantonment Rent Control Act, 1952, which reads thus:-

"(c) that the tenant has without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value".

In the above context, the Supreme Court observed as under:-

"...................Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter 'the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter, the form, front and structure of the accommodation."

(emphasis supplied)

This Court in Raghubir Singh vs. Additional District Judge, Meerut and others 1981 (1) ARC 302, while interpreting clause (c) of Section 20(2) of the Act held as follows :-

"The question whether the changes made by the tenant amount to structural alterations in the buildings under tenancy is not a pure question of fact. The inference whether the alterations made by the tenant amount to structural alterations from the facts established on the record is certainly an inference of law and not of fact. The revisional Court was, therefore, entitled to consider for itself whether the alterations made by the tenant amounted to structural alterations within the meaning of clause (c) of Section 20(2) of the Act. As regards the further question whether the structural alteration was likely to diminish its value, I agree with the learned counsel for the respondent that the trial Court had not considered that question at all and it was only while recording its ultimate conclusion that the trial Court had observed without the discussion of any evidence on the record that the alterations made by the tenant were likely to diminish the value of the building. The trial Court not having considered that question, it was open to the revisional Court to give its own finding."

(emphasis supplied)

There is no doubt that the revisional court in exercise of power under Section 25 of the Provincial Small Cause Courts Act, 1887, cannot re-appraise evidence to interfere with findings of fact. There is also no doubt that a finding as regards extent of construction made by tenant is a finding of fact but whether it would amount to structural alteration in the building, and whether it had resulted in diminishing its value or utility or in disfigurement is an inference of law to be drawn from the facts established on record. The opinion formed in this regard by a Court is one of law.

The trial court, while deciding the issue regarding structural alteration has dealt with the same in a very casual manner. It has referred to Amin's report and certain photographs filed by the plaintiff but without discussing any of them, it proceeded to hold that the defendant has made structural alterations in the building. It thereafter proceeded to concur with the contention of counsel for the plaintiff that construction of wall and closing of door, would result in reducing the value and utility of the demised premises. Once again, without recording any finding that any new wall was actually constructed or any door was closed, it jumped to the conclusion that the defendant is liable to eviction.

It is pertinent to note that Amin's report does not mention about construction of any new wall. It only mentions about closing of a door, out of three doors. It also mentions about construction of pillars at points J & K to provide strength to the roof which was found to be very old, having several cracks. The trial court has not discussed as to how it has drawn inference of structural alterations having been made in the building from the photographs filed by the plaintiff. The revisional court has formed an opinion that the structural alterations made were not such as had diminished the value of the building or its utility or disfigured it. It has also taken note of the fact that the demised premises had been in tenancy of the defendant for last more than sixty eight years. Consequently, carrying out of repairs or adding certain new constructions to provide strength to the old structure, would not amount to any structural alteration nor would result in diminishment of its value or utility.

The Supreme Court in Waryam Singh vs. Baldev Singh, JT 2002 (9) SC 189, has held that covering verandah on the front side of the shop by construction of walls on two sides and putting a rolling shutter in the front would not bring the act of the tenant within the mischief of Section 13 of the East Punjab Rent Restrictions Act, 1949:-

15. Thus an Order for eviction can be passed only if the landlord proves (a) that the tenant had carried out the construction, (b) that the same was without the consent of the landlord and (c) that the value or utility had been materially impaired. In the present case, the First Appellate Court, on facts, concluded that the Respondent had carried out alteration by enclosing the verandah. On facts it has been held that this has been done without the consent of the Appellant. The Revisional Court has correctly not interfered with the findings of fact. We also see no reason to take a different view on a question of fact.

16. However, the question still arises whether merely because a verandah is enclosed it can be inferred, without any further evidence or proof, that the value and utility is affected. On the question of material impairment of value or utility the Appellant has lead no evidence at all. The submission has been that no evidence was required to be lead as it has to be inferred that the value or utility had been diminished. We are unable to accept such a submission. In the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop."

(emphasis supplied)

Having regard to the above legal position, this Court is of the opinion that the revisional court committed no illegality in exercise of its jurisdiction in forming an independent opinion that the constructions raised would not attract Section 20 (2) (c) of the Act.

No other submission has been made by learned counsel for the petitioner.

The petition lacks merit and is dismissed.

Order Date :- 1.3.2019

skv

(Manoj Kumar Gupta, J.)