Mukesh @ Lallu Saxena & 2 Others vs Addl.District Judge (Essential ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 6
 

 
Case :- RENT CONTROL No. - 11921 of 2017
 
Petitioner :- Mukesh @ Lallu Saxena & 2 Others
 
Respondent :- Addl.District Judge (Essential Commodities Act) Hardoi & Anr
 
Counsel for Petitioner :- Anuj Dayal
 
Counsel for Respondent :- Anurag Narain
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard Sri Anuj Dayal, learned counsel for the petitioner and Sri Anurag Narain, learned counsel for the respondent-landlord.

2. It is the case of the petitioner that respondent no.2 filed a Suit for ejectment on 13.07.2005 registered as SCC Suit no. 10 of 2005 on the ground that respondent no.2 and the wife of his brother Vedrani purchased the property in question on 22.03.1984 and after the death of Vedrani, the respondent alone is the legal heir and owner and landlord of the shop in question. Respondent no.2 had let out one shop (herein referred to as shop in question) to the father of the petitioners in 1985 on rent at the rate of Rs. 275/- per month which included house tax and water tax.The father of the petitioner had paid rent as well as house tax and water tax till 30th June,2001.The father of the petitioners expired on 27.03.2004 and after his death petitioner had occupied the shop in question as a joint tenancy. In the plaint filed by respondent no.2, it was alleged that notice was sent to the petitioners on 17.03.2005 for arrears of rent which they refused to accept. After lapse of statutory period, the of tenancy got automatically terminated on 07.07.2005. It was also stated in the plaint that petitioners had sub-let the premises to one Deepu son of Sri Rajendra Kumar Saxena on rent of Rs.1000/- per month and the shop in question is in possession of Deepu.

3. After filing of Suit the notices were issued to the petitioners, they filed written statement. Although they accepted relationship of landlord and tenant they stated that they were giving rent and house tax and water tax till January,2005 but landlord was not giving any receipts to them. After January,2005, landlord refused to accept the rent. The petitioners denied the notice of termination of tenancy saying that it was never served upon them. The petitioners are running a General Store in the shop in question and after death of their father, Deepu being his nephew was helping the petitioners in the shop and he was not a sub tenant as alleged in the plaint. It was also stated that the petitioners and their mother were compelled to prefer a suit for injunction which was registered as Regular Suit no.72 of 2005 in the court of Civil Judge (J.D.) (West) in which interim order was passed that they should not be evicted except in accordance with law. Petitioners were liable to get benefit of Section 20 (4) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 as they had already preferred an application for depositing the rent unconditionally before the court below in Regular Suit no. 72 of 2005. Since February, 2005 they were depositing the rent in SCC Suit No. 10 of 2005 ( the petitioners made an application on 13.12. 2005 before the Judge Small Causes for permission for depository of rent in Court under section 20(4) which was accepted).

4. Learned Additional Civil Judge/Judge Small Causes Court framed seven issues for adjudication. The evidence of respondent no.2 was taken. He admitted in his statement that he wanted the petitioners to vacate the premises because he wished to start a Coaching Center for his unemployed graduate son. Respondent no.2 also accepted that Deepu was the nephew of late Rajesh Kumar Saxena, the original tenant and he was taking care of the shop but died during the pendency of the Suit.

5. It has been argued by learned counsel for the petitioners that in the statement given by the landlord before the learned court below he accepted the rent of the shop as Rs.300/- which included water tax and house tax. In the statement of petitioner no.1,he had stated that petitioner had deposited rent upto June 2005 and it was not disputed during cross-examination by the plaintiff.

6. Learned court below found that there was a relationship of landlord and tenant between the petitioner and respondent no.2 and that the petitioner was also depositing the rent in SCC no.10/2005 under section 20 (4) of the Act,1972 which meant that the petitioner was always ready and willing to tender the rent to the landlord but he refused to accept the same. Learned court below observed that Deepu was the nephew of the original tentant and was a family member therefore there was no evidence of sub-letting.Learned Civil Judge/Judge Small Causes Court dismissed the suit by judgment and order dated 02.11.2015 . The suit for injunction, namely Suit No.72 of 2005 was, in the meantime, also decreed by an order dated 22.12.2007 to the effect that defendant-landlord shall not evict the petitioners except in accordance with the procedure prescribed by law.

7. The landlord/respondent no.2 preferred a Revision against the judgment and order dated 02.11.2015 registered as SCC Revision no. 40 of 2015 again on the ground of default in payment of rent and on the ground of sub-letting. In the Revision, it was stated that although the petitioner preferred an application for depositing the rent in Court under Section 20(4), petitioner did not deposit water tax and house tax.The Revisional Court has given a finding that tenant did not deposit house tax and water tax, therefore, they were not entitled for the benefit of Section 20(4) of the Act,1972.The Revisional Court also held that Deepu was not a family member of late Rajesh Kumar Saxena, the original tenant and running of the shop in question by him amounted to sub- letting.

8. It has been argued by learned counsel for the petitioner that Revisional court far exceeded its jurisdiction under Section 25 of the provisions of Small Causes Courts Act.The revisional Court reopened the findings of fact recorded by the Judge, Small Causes Court and wrongly concluded that the petitioners were defaulters and that Deepu was a sub tenant.He failed to appreciate that the petitioners were depositing rent in Court and also that if tenanted premises were occupied by family members,it cannot be said to be case of sub-letting. Moreover the alleged sub tenant Deepu had already expired during the pendency of the SCC Suit and petitioner no.1 was taking care of the shop in question and he was legal heir of the original tenant being his son.

9. Sri Anurag Narain has appeared for opposite party no.2. He has pointed out the averments made in the counter affidavit filed by him on 22.03.2018 and also a supplementary counter affidavit filed on 23.04.2019. It is the case of the respondent no.2 that the statement recorded by learned court below of landlord referred to another shop in the same premises which had been let out for Rs.300/- per month to some other tenant which rent included house tax and water tax. So far as shop in qustion is concerned, its rent was only Rs.275/- and did not include house tax and water tax which had to be deposited separately.

10. It has been argued by Sri Anurag Narain that unless it is indicated in the rent agreement or otherwise by the conduct of the parties in the past, tenant's failure to pay water tax and house tax separately shall amount to default in payment of rent. It has also been argued that if payment of rent is stopped for some reason, it is deposited in the Court. To get the benefit of Section 20(4) of Act,1972 , the tenant has to deposit not only rent, house tax and water tax but also interest accrued thereon at the rate of 9% and also costs including the Advocate's fee.

11. It has been submitted that the Revisional court did not exceed its jurisdiction as there were only two questions of law that were to be considered by the Revisional court; one was with regard to whether Deepu, the nephew of late Rajesh Kumr Saxena could be said to be a family member under section 3(g) of 1972 Act and other question was whether non deposit of rent alongwith house tax and water tax and interest and costs on the first date of hearing before the Court concerned and thereafter failure to continuously deposit month to month of rent, house tax and water tax during the pendency of the suit would amount to the tenant be declared as defaulter.

12. Learned counsel for the respondent no.2 has placed reliance upon definition of "family members" under Section 3(g) of the Act,1972 which specifically included only spouse, male-female parents, grand parents daughter of original tenant or his grand daughters the word "nephew" is not included in the definition of family member.

The Revisonal court looking into account to the fact that petitioners had not denied that shop in question was being run by Deepu, the newphew of late tenant and the Revisonal court on the basis of definition under Section 3(g) of the Acts 1972 rightly came to the conclusion that nephew is not a family member and, therefore,it amounted to sub-letting.

13. Learned counsel for the respondent no.2 has also pointed out that the findings recorded by learned revisonal court in the order impugned that the petitioners had not deposited rent alongwith house tax and water tax and with interest and costs either at the time of the institution of the SCC Suit nor did they deposit the said rent month to month regularly during the pendency of suit Some-times the tenants had given application for depositing two months rent at others they had deposited 15 months rent altogether, without depositing house and water tax. Learned counsel for the respondent no.2 had placed reliance upon the judgments rendered by this Court in the case of Allah Bux Vs. Ist Additional District Judge and others, AIR 1996 Allahabad 49 and the judgment rendered by this Court in the case of Radhey Shyam Gupta Vs. Jawahar Lal Bhatia, (1996) 28 ALR, 518 and the judgment rendered by this Curt in the case of Abul Alim Vs. District Judge, Jhansi and others 1995(2) Allahabad Rent Case, 52. To substantiate his arguments regarding petitioner being defaulter for not depositing rent month to month alongwith house tax and water tax.

14. In Allah Bux Vs. Ist Additional District Judge and others (supra) this Court has considered the case of the the tenant who fell in arrears of rent for six months and deposited the same under Section 30 of 1972 Act in the Court concerned. The tenant argued that he could not be said to have committed any default wherein the meaning of Section 20 of 1972 Act and was, therefore, not liable for ejectment. The Court observed that the landlord served notice to the tenant for deposit of arrears of rent for four months and on failure to deposit the same despite such demand the tenant was liable to be evicted. The service of notice by landlord meant that landlord was willing to accept the rent, therefore, the tenant should not have deposited the same in Court. A perusal of section 30 of the Act of 1972 showed that it permitted to deposit of rent in Court in the event of refusal by the landlord. The landlord by sending notice in writing to the tenant signified his willingness to accept rent. Despite service of notice the tenant chose to deposit the arrears of rent in the Court of Munsif which amounted to failure to comply 0f the Section 20(4) and therefore he could not be saved under Section 30 of Act.

15. In Abul Alim Vs. District Judge, Jhansi ( supra) a Coordinate Bench of this Court considered section 7 of the Act 1972 wherein it has been provided that the liability to pay water tax is that of the tenant , subject to any contract in writing to the contrary. It was held that when there was no contract in writing to the contrary, the liability of payment of water tax and house tax was that of the tenant. The tenant having not paid the water tax in addition to and as part of rent,was liabile to eviction. Such a Tenant can be saved by section 20(4) of the Act of 1972, if he deposited the arrears of water tax on the first date of hearing. However, the tenant had not deposited the arrears even on the first date of hearing hence the Court allowed the writ petition filed by the landlord.

16. In Radhey Shyam Gupta Vs. Jawahar Lal Bhatia (Supra), this Court observed that the tenant should have deposited their taxes also at the time of first hearing under section 20(4) of the Act 1972 to avoid liability of eviction. The tenant could have also deposited the amount under section 30 of the Act in case of refusal of landlord to accept it. Since neither of the two options were exercised by the tenant he was liable for eviction. Section 7 of the Act of 1972 was quoted by Hon'ble Judge and it was observed that there was a duty of the tenant to pay water tax and he should not wait for payment by the landlord to Municipal authorities and then later on pay the same. The court relied upon the observations made in Abul Alim (supra) and observed that although the provision is very harsh as it effected the right to shelter of the tenant but tenant should have been advised correctly and he should have paid the arrears of water tax at the time of first hearing under section 20(4) of the Act. The tenant having committed default he was liable for eviction.

17. Sri Anuj Dayal in rejoinder has submitted that it is evident from the statement of respondent no.2 before learned trial court that Deepu was the tenant's nephew and he had died during pendency of the Suit. Sri Anurag Narain however pointed out from the statement of landlord recorded by learned trial court that rent of the adjoining shop was Rs.300 and it included house tax and water tax. The shop in question ws let out only for Rs. 275/- per month.

18. This Court has considered the judgement of the Revisonal Court under challenge and finds therefrom that the revisonal court after mentioning the fact of filing of the SCC Suit and framing of issues by learned trial court and decision therein has referred to the question whether the rent that was being paid by the petitioner at the rate of Rs.275/- per month included house tax and water tax or whether it was exclusive of house tax and water tax which has to be paid separately at the rate 10 % of the rent of the shop. With regard to question of default, the Revisional Court has considered various applications made by the petitioners herein in 2011-2012 and then again in 2014 for depositing two months of rent, fifteen months of rent and six months of rent at the rate of Rs.275/- per month only without tendering separate amounts for house tax and water tax which was their statutory duty to deposit @ 10% of the monthly rent. He came to the conclusion that rent was deposited irregularly and the petitioners were in default in depositing the rent also the petitioners did not deposit house tax and water tax at any point of time in Court.

19. The Revisonal Court also found that Deepu was the nephew and not a family member of the original tenant and the petitioners had admitted that he was the running shop in question at the time when the SCC Suit was filed although during the pendency of SCC Suit he had died. Learned Revisonal Court also observed that the original tenant had been let out the shop in 1985 at the rate of Rs. 275/- per month. At the time of decision of revision after 32 years, the tenans were paying only Rs.275/- per month and that too irregularly and for most of the time they were in default. They were running a General Merchant business in the shop in question .

20. Hence, the Revisional court allowed the Revision, setting aside the order passed by Judge Small Causes Court dated 02.11.2015 and dircted the petioners to vacate the shop and give its peaceful possession to the landlord within two months and also to pay all the arrears at the rate of Rs.275/- per month to him.

21. With regard to the arguments raised by learned counsel for the petitioners that the Revisonal court exceeded its jurisdiction unraveiling the findings of fact recorded by the learned trial court.This court finds that the Revisonal court was entitled to look into the findings recorded by the trial court in the light of statutory provisions. There were two legal questions to be considered by the Revisonal court; one relating to whether a nephew can be said to be a 'family member' under 1972 Act, and the other was whether house tax and water tax can be said to be included in the rent offered by the tenant in the absence of any agreement between the parties and whether failure to deposit arrears of rent and monthly rent thereafter in the learned trial court and during pendency of revision before revisonal court amounted to default,dis-entitling the tenant from the protection of Section 20(4) of Act 1972. Both these question have been answered by the Revisonal Court based upon the evidence that was recorded by the learned trial court. No fresh evidence was taken to come to the findings as recorded in the judgment impugned.

22. It is settled law that jurisdiction in SCC Revision is greater than the jurisdiction under Section 115 C.P.C. and less that of as appeal. It has been so held by the Constitution Bench of Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh (2014) 9 SCC,78.

23. In Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh,(supra),the Constitution Bench of Hon'ble Supreme Court was considering the question of scope of Revison under various Rent Control Acts as interpreted by the respective High Court, and observed in para 28 and 29 as follows:-

"28. Before we consider the matter further to find out the scope and extent of revisional jurisdiction under the above three Rent Control Acts, a quick observation about the "appellate jurisdiction" and "revisional jurisdiction" is necessary. Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not vice versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is coextensive with that of the trial court. Ordinarily, appellate jurisdiction involves rehearing on facts and law but such jurisdiction may be limited by the statute itself that provides for the appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In other words, revision is not continuation of suit or of original proceeding. When the aid of Revisional Court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute. It goes without saying that if a revision is provided against an order passed by the Tribunal/appellate authority, the decision of the Revisional Court is the operative decision in law. In our view, as regards the extent of appellate or revisional jurisdiction, much would, however, depend on the language employed by the statute conferring appellate jurisdiction and revisional jurisdiction.

29. With the above general observations, we shall now endeavour to determine the extent, scope, ambit and meaning of the terms "legality or propriety"; "regularity, correctness, legality or propriety"; and "legality, regularity or propriety" which are used in the three Rent Control Acts under consideration:

29.1. The ordinary meaning of the word "legality" is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal.

29.2. The term "propriety" means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy.

29.3. The terms "correctness" and "propriety" ordinarily convey the same meaning, that is, something which is legal and proper. In its ordinary meaning and substance, "correctness" is compounded of "legality" and "propriety" and that which is legal and proper is "correct".

29.4. The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play."

After considering the relevant case laws , the Supreme Court give it conclusion in para 43 as follows:-

"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.(emphasis supplied)"

24. This Court does not find any factual legal infirmity in the order impugned.The writ petition is dismissed. Petitioners are directed to pay all the arrears of rent since 01.07.2013 alongwith house tax and water tax at the rate of 10% to the respondent no.2 within two months from today and simple interest at the rate of 9% per annum thereon, and to give vacant peaceful possession of the shop in question to the landlord/ respondent no.2 within the same period.

Order Date :- 1.7.2021

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