Ravi Sharma & Others vs Smt. Shweta Sharma & Others
2021 Latest Caselaw 9582 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- MISC. SINGLE No. - 5468 of 2021
 

 
Petitioner :- Ravi Sharma & Others
 
Respondent :- Smt. Shweta Sharma & Others
 
Counsel for Petitioner :- Sudhir Kumar Pandey
 
Counsel for Respondent :- Rama Kant Dixit,Prem Chandra Sharma,Subhash Chandra Sharma
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard Sri Sudhir Kumar pandey,learned counsel for the petitioners and Sri Subhash Chandra Sharma, learned counsel for opposite parties.

2.This petition has been filed by the petitioners, who are three in numbers, challenging the order dated 15.10.2019 passed by Civil Judge (S.D.) Mohanlalganj, Lucknow in SCC Suit No.105 of 2012 (Yogendra Kumar Sahu and others Vs. Ravi Sarma and others) and also the judgment and order dated 11.12.2020 passed by learned Revisional Court of Additional District Judge/Special Judge, (P.C. Act) Court no.4 Lucknow in SCC Revision No. 116 of 2019 (Ravi Sharma and others Vs. Smt Shweta Sharma and others.

3. It has been submitted by learned counsel for the petitioners that petitioners are tenant on the ground floor of House no. 512/82, 7th Lane, Nishatganj, Police-Station-Mahanagar, Lucknow for the past three generations. Initially, grandfather of the petitioners has taken house on rent from the original owner in 1953. After the death of the original owner and grandfather of the petitioners, father of petitioners Ramesh Chandra Sharma inherited the tenancy and started paying rent to one Jumman Singh till his death. Jumman Singh was survived by his two sons, namely, Heera Singh and Ram Singh. The father of the petitioners started paying monthly rent to Heera Singh and Ram Singh.

The father of the petitioners died in 2005. The petitioners inherited the tenancy of the house in question. On 04.11.2009, the previous owners of the property Heera Singh and Ram Singh sold out the property to Sri Yogendra Kumar Sahu and Sri Shiv Prasad Jaiswal arrayed as opposite parties no. 3 and 4 in the writ petition.The opposite parties no.3 and 4 filed a Small Causes Court Suit against the petitioners in the Court of Judge, Small Causes, Lucknow, registered as SCC Suit No. 105 of 2012. The said suit was transferred later on to the Court of Civil Judge (S.D.), Mohanlalganj, Lucknow. During the pendency of SCC Suit, the original plaintiffs transferred the property in favour of Sanjay Sharma through registered sale-deed on 10.03.2014. Sri Sanjay Sharma thereafter filed an application for impleadment as plaintiff no.3, which was allowed. Sri Sanjay Sharma died in 2016 and was substituted by his widow and a minor son arrayed as opposite parties no. 1 and 2 in the writ petition.

4. It has been submitted by learned counsel for the petitioners that five points of determination were framed by learned trial court and on leading of evidence by the parties, learned court below had given a finding that the intimation of sale of the house in November, 2009 by Heera Singh and Ram Singh through Yogendra Kumar Sahu and Shiv Prasad Jaiswal was not given to the tenants at any stage. The Subsequent purchaser Yogendra Kumar Sahu and Shiv Prasad Jaiswal also did not give any notice that they have bought the house and became the landlord and the rent could not be given to them and not to Heera Singh and Ram Singh. Petitioners continued to give rent to Heera Singh and Ram Singh. The opposite parties no. 3 and 4 all of a sudden without notice filed SCC Suit for arrears of rent and for eviction. The petitioners deposited the entire arrears of rent including interest and cost in Court under Section 20(4) of Act no 13 of 1972 on 06.12.2012. Although, the date mentioned for the first hearing of the suit in the summon issued by the learned trial court was 06.11.2012, but the date of first hearing in terms of the Explanation given under Section 20(4) would be the date when the court applied its mind for the first time to the controversy involved .

5. It has been further submitted that plaintiff nos. 1 and 2 never claimed any arrears of rent after buying the property in 2009. They were also not examined by learned trial court and only Sri Sanjay Sharma, the subsequent purchaser, the plaintiff no.3 was examined by the learned trial court and he admitted that although initially a notice of arrears of rent was sent to the tenant on 13.08.2010, no copy of the same was filed alongwith plaint or any other subsequent affidavit. Only a copy of the notice sent later on 12.07.2012 was filed alongwith plaint.

6. It has been argued by learned counsel for the petitioners that learned trial court also gave a finding in favour of the petitioner that entire rent included water tax had been deposited by them in Court. Learned trial court also gave a finding that the petitioners as soon as they got knowledge of transfer of ownership through summons sent by court, deposited the rent under Section 20(4). However, it exceeded its jurisdiction when it observed when rent was not paid by the petitioners even to the previous owner since 2007as the previous owners were not plaintiffs in the SCC suit and they had not made any claim regarding arrears of rent being due to them.

7. Learned counsel for the petitioners has argued that since the entire rent included water tax, interest and cost for deposited on first day of hearing the tenants were entitled for being given benefit of sub- section (4) of Section 20 and were not liable to be evicted and the suit ought to have been dismissed. Learned trial court allowed the SCC Suit in favour of opposite parties on 15.10.2019. The petitioners being aggrieved, filed a revision. The Revisional Court failed to exercise its jurisdiction to correct the errors of fact and law made by learned trial court and pleaded before the Revisional Court specifically by the petitioners, it merely dismissed the revision by relying on the findings recorded by the learned trial court.

8. Learned counsel appearing for opposite parties no.1 and 2 has pointed out from the orders passed by the learned trial court that five points of determination were framed by learned trial court and after recording evidence on each of these points findings were recorded in favour of the landlord, the issue with regard to whether there were relationship of the landlord and the tenant between the opposite parties and the petitioners, issue regarding service of notice and attornment of tenancy having been given to the tenant, the issue regarding demand of arrears of rent and notice being duly sent and served on the tenant; and whether the tenant were entitled to the benefit of sub section (4) of Section 20 of the Act being extended to them were all considered by learned trial court. Having found all these issue in favour of landlord, learned trial court directed payment of entire arrears of rent, damages and eviction rightly.

9. Learned counsel for the opposite parties no. 1 and 2 has read out the internal page -6 of the judgment of the learned trial court wherein it was mentioned by learned trial court it is not necessary for a person to be a owner of the premises in question to claim its rent as landlord. When plaintiff no.1 and 2 had purchased the house in question in November, 2009, plaintiff no.1 and 2 became its landlords and were entitled to receive the rent from the tenant. It has not been disputed by the tenants that thehouse in question has been sold out by plaintiff no.1 and 2 to plaintiff no.3 in 2014 and that his right, title and interest devolved upon the widow and his minor son after his death during pendency of suit, The learned trial court was right in having come to the conclusion that the opposite party no.1 and 2 were the landlord and there was relationship of landlord and tenant between opposite parties no. 1 and 2 and the petitioners.

10. The second point of determination as discussed by learned trial court was whether transfer of ownership was made known to the tenant and whether even after receiving of such information they had defaulted in payment of rent to new landlord.

11. Learned trial court found on the basis of affidavit filed by the tenants and also the statement given in examination-in-chief that different dates were mentioned regarding payment of the arrears of rent by the tenants to the landlord. Initially it was stated that tenants had paid rent to the original landlord, Heera Singh and Ram Singh upto September, 2012.Thereafter in another affidavit they mentioned that they had made payment till September, 2011 and in the examination-in- chief defendant no.2/Manish Sharma stated that payment of rent had been made till September, 2009 to Heera Singh and Ram Sngh through money order which was returned undelivered saying that the addressee had left.

12. The learned trial court concluded from the statement made by defendants themselves that defendants had been defaulter for quite sometime, in fact they had not paid rent to earlier owners Heera Singh and Ram Singh since 2007. Because of such failure to pay rent, perhaps Heera Singh and Ram Singh sold out the property to Plaintiff nos. 1 and 2 and plaintiff no.1 and 2 also having not been able to get rent of the property from defendants had sold it off to plaintiff no.3 . Plaintiff no.1 and 2 had orally asked for payment of rent from defendants on several occasions and thereafter sent a notice on 13.08.2010 to the tenant but such notice or its copy was not filed alongwith plaint or in the list of documents filed as evidence and only a copy of a notice sent in 2012 was filed as paper no. C-5/2. Learned trial court observed that house in question was rented out to two tenants, defendants were tenants on the ground floor, therefore, the amount of water tax payable by them was not determined and it could not be said that they were in default of payment of water tax on account of such determine amount for sold to them. It however, observed that although no separate notice was given to the defendants regarding transfer of ownership from Heera Singh and Ram Singh to the plaintiff nos.1 and 2, the fact that defendants did not pay rent even to the earlier owner Ram Singh and Heera Singh till 2009 and thereafter, showed that the defendants had no intention of paying rent and are habitual defaulters.

13. With regard to point of determination no.3 as to whether rent was ever demanded though proper notice to the defendants or whether on termination of tenancy,notice was served upon them in accordance with rules? Learned trial court has referred to the notice dated 12.07.2012. It was a composite notice asking for arrears of rent and determining the tenancy which was served upon defendant no.2/Manish Sharma personally on 13.07.2012 as per the certificate issued by the post office in this regard on 29.08.2012, a copy of which was filed alongwith the evidence before learned trial court.

14. It had been argued before learned trial court that only Manish Sharma had been served the notice personally and no notice was given to his other two brothers. Learned trial court after examining the contents of the notice came to the conclusion that notice was addressed to all three brothers.It is not the case of the petitioners that they were living separately. It was on record that all the brothers were living in the same house on same the ground floor therefore, learned trial court disbelieved that the submission made by defendants they had not been served individually with the notice for determination of tenancy. It was the joint tenancy that they had inherited from their father and notice to all of them would be deemed to have been served as they are real brothers.

15. So far as the question whether after receipt of notice default in payment of rent was made by the defendants, learned trial court observed that in the evidence of defendant it had come out that they were aware that plaintiff nos.1 and 2 had sold out the first floor of the same house to the tenant residing therein, therefore, it could not be said that defendants,who were living on the ground floor in the same house remained unaware of such transfer of ownership. Such a contention raised by learned counsel for the defendant was rejected as beyond any reasonable person's blight understanding. It was in this context only that learned trial court observed that because the defendant were defaulters in payment of rent the erstwhile landlord had got tired and sold out the property.

16. With regard to point of determination no.4 that is whether the defendants were entitled to be given the benefit of Section 20(4), learned trial court said that since the entitlement was being claimed by the defendants, the burden of proof to the defendant. They had to convince the learned trial court that they had tendered the entire amount of arrears of rent, interest and costs as given under sub-section(4) Section 20 on the "first date" of hearing. The "first date" of hearing was the date when the court had deemed the service upon defendants to be sufficient as no court without application of mind could have come to the conclusion that service upon defendant was sufficient. It was the date as mentioned in the summons dated 06.11.2012. Notice/summon was served on defendants on 25.10.2010, just because the defendants fail to appear on 06.11.2012 and in fact appeared on 06.12.2012 when they tendered the amount in question, would not shift the date of first hearing. The Court had found on consideration of evidence that summons had been served alongwith copy of the plaint upon the defendants yet they failed to appear on the date fixed as 06.11.2012. It was on that date the court had applied its mind whether the notice has been served on them or not and came to the conclusion that summons had been duly served. It applied its mind and found that service is sufficient.Hence, learned trial court held that the defendants has not complied with the provisions of sub section (4) of Section 20 in their entirety and, therefore, they were not entitled to its benefit.

17. The fifth point for determination was whether the plaintiffs were entitled to any relief in the said suit? The learned trial court summarised its findings on the earlier 4 points of determination, and thereafter observed that plaintiff no.2 had claimed arrears of rent at the rate of 135/- per month, initially, when the suit was filed. Later on plaintiff no.3 on the basis of registered sale-deed had taken over the property in 2014 .He stepped into the shoes of the landlord, therefore, plaintiff nos. 1 and 2 would be entitled to arrears of rent upto 2014, and from 2014 onwards plaintiff no.2, and his legal heirs and representatives substituted on his death, would be entitled to arrears of rent till the date of judgment. It was also provided that damages at the rate of 500/- per month be given by the tenants from the date of judgment till the date of actual delivery of peaceful vacant possession of the house in question.The tenant was also directed to deliver peaceful vacant possession of the tenanted premises within two months from the date of order dated 15.10.2019.

18. The petitioners being aggrieved by such orders, filed a SCC Revision under Section 25 of the Act which was also rejected by Additional District Judge/ Special Judge (P.C. Act) Court No.4, Lucknow.

19. It has been submitted by learned counsel for the petitioner that revisonal court did not apply its mind to the grounds of revision. However, this Court has carefully perused the judgment dated 11.12.2020 and has found that revisional court also framed issue for deciding the revision and after considering the evidence led before the trial court came to the conclusion that revisionists were defaulters in payment of rent, for a long time they had information regarding transfer of ownership from earlier landlords Heera Singh and Ram Singh to plaintiff no.1 and 2, and thereafter from the plaintiff nos.1 and 2 to plaintiff no.3, but they failed to offer rent to the landlord. It had been submitted by learned counsel for the revisonist that default, if any, in payment of rent was only up to December, 2012 because after December, 2012 they had deposited the rent in Court and thereafter continuously deposited the same month to month during the pendency of the SCC Suit. However, revisional court found on examination of evidence that even in the deposit of rent in court, defendants/ revisionists had defaulted as the rent was not being deposited month to month but in a lump sum for several months together. The expression" first hearing" has given in the Explanation to the Section 20(4) in the Act itself meant the first date as mentioned in the summon served on defendants and the revisional court held that the "first date" would be date when the summon showed that the written statement had to be filed by the defendants before the learned trial court, and the tenant, could not delay or extend the date of first hearing only on wilfully failing to appear on the said date mentioned in the summons.

20. The revisional court has properly exercised its jurisdiction to examine whether the learned trial court had committed any error in fact or law in allowing the suit in favour of the plaintiffs by its judgment and order dated 11.12.2020. This Court finds that no legal or factual infirmity either in the order of the trial court or that of revisional court.

21. Sri Subhash Chandra Sharma has pointed out from the counter affidavit filed by him that opposite parties being widow at a young age has a small child and she lives with her parents in Allahabad only because she could not get house vacated from the petitioners after the death of her husband. He has also pointed out from the counter affidavit, an interim order passed in the revision wherein a direction has been issued for Rs.5000/-to be given per month as rent/ damages from continued occupation of the tenanted premises and on that condition alone the order of trial court has been stayed during the pendency of revision. Such payment was also not made regularly. Learned counsel for the petitioner seriously disputed such assertion.

22. This Court does not find it unnecessary to give any finding with regard to such dispute as is raised before this court in the counter affidavit and rejoinder affidavits filed by learned counsel for the parties as having found no infirmity in the order impugned the petition is dismissed.

23. The order dated 15.10.2019 is affirmed and also modified to the extent that opposite parties no.1 and 2 shall be entitled to damages at the rate of Rs. 5000/- per month from the date of judgement of the learned trial court dated 15.10.2019 till the date of delivery of possession of the tenanted premises.The benefit arising out of such order would be made available to the opposite parties, after adjustment of payments already made by the petitioners in terms of the interim order passed by the revisional court.

24. The petitioners shall deliver peaceful vacant possession of the property to opposite parties no.1 and 2 and file an affidavit of compliance before learned trial court within two months.

Order Date :- 5.8.2021

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