Dev Raj vs Smt. Rukmani Devi
2022 Latest Caselaw 21921 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR					     
 
Reserved On 11.11.2022  
 
Delivered On: 20.12.2022
 

 

 
Court No. - 30
 

 
Case :- CIVIL REVISION No. - 104 of 2001
 

 
Revisionist :- Dev Raj
 
Opposite Party :- Smt. Rukmani Devi
 
Counsel for Revisionist :- Rama Goel,Rajesh Tandon
 
Counsel for Opposite Party :- S.K. Jauhari,Kshitij Shailendra,S.K. Joshi
 

 
Hon'ble Umesh Chandra Sharma,J.	
 
1.	This civil revision has been filed to quash the judgment and decree dated 24th January, 2001 passed by Sri R.B. Singh, Spl. Judge Anti-Corruption/A.D.J. Bareilly in SCC Suit No. 23 of 1997.
 
2.	In brief, facts of the case are that respondent Rukmani Devi filed a suit for eviction and arrears of rent and damages against the defendant/revisionist Dev Raj alleging that the plaintiff is the owner of House No. 29-A Sindhu Nagar, Mohalla Katra, Chand Khan Old City, Bareilly. There is a room, kitchen-cum-store room, bathroom and latrine room towards North-East on the ground floor of the house in which the defendant is a tenant since 15th February, 1995 @ Rs.1,000/- per month. He is also responsible for paying the electric bill and local taxes. The tenancy starts from 15th of every month. The defendant after 15th May 1996 has not paid rent, mesne profits, electric bill and local taxes after 15th May, 1996. The plaintiff is a little educated lady and has a little knowledge of law. She used to deliver receipts pasting revenue tickets on blank papers. She never prepared any copy or counter foil of it. Therefore, she had not taken signatures of the defendant on any counter foil of receipts. After 15th May, 1996, the plaintiff had demanded several times the rent, mesne profits and amount of electric bill and local taxes but defendant ignored and has not paid the same and started unparliamentary behaviour and abusing. Therefore, she sent a notice under Section 106 of the T.P. Act on 06th January 1997 reduced in writing by her Advocate, Raj Kumar Agrawal. It was delivered to the defendant same day as dasti notice but defendant refused to receive the same. Thereafter, the plaintiff pasted the notice upon the main door and terminated the tenancy of the defendant. 

3. The defendant had filed a suit No. 37 of 1996 Dev Raj vs. Rukmani Devi and Others and moved temporary injunction application. The plaintiff had filed objection and counter objection and also copy of notice dated 06th January, 1997 as Schedule-A and copy of affidavit was also provided to the counsel of the defendant. Thus, the defendant had full knowledge of the notice. In spite of that neither the defendant vacated the tenanted part of the house nor provided the possession nor paid any rent, mesne profit, electric bill amount and local taxes due upon him. In Para 6 of the suit, the plaintiff has given the details of the amount. In Para 8 of the plaint she has valued the suit and has stated about the court fees and thereafter, has sought the relief.

4. The copy of the written statement has been annexed as Annexure 2 in which the petitioner has said that provisions of U.P. Act 13 of 1972 are applicable to the property in suit. He admitted to be the tenant and also admitted filing of the suit. In addition to that he replied that the suit is not property valued and insufficient court fees has been paid. The property in suit is very old. The rear portion of the house was made in 1973. When the tenancy started, the house in suit was under the operation of U.P. Act 13 of 1972. The plaintiff did not adopted the procedure of allotment which was necessary. Therefore, the contract between the plaintiff and the defendant is against the law and void, and is not enforceable. The defendant has not received any notice under Section 106 of the T.P. Act. The defendant is tenant @ Rs. 500 per month in which taxes of water and electric charges are also included. The defendant has been paying the rent to the plaintiff but plaintiff had never given receipt. The plaintiff had taken Rs. 20,000/- cash for the construction of kitchen with the condition that this amount would be set off in the amount of rent but the plaintiff did not construct the kitchen and got it lingered. The plaintiff again started demanding Rs. 10,000/-. The defendant is a poor, gentle and peace loving person who any how passes the life. When he refused to pay this amount, the plaintiff became angry and disconnected the electricity of the defendant and started to dispossess the defendant forcefully with the help of unsocial elements. She stared threatening and tried to throw the household articles of the defendant. Then he moved an application to the S.P. and filed the suit in the Court of Civil Judge (Junior Division). The defendant also sent rent money through money order but the plaintiff refused to accept the same. Therefore, he started depositing the rent in Misc. Case No. 230/1996 under Section 30 of the U.P. Act 13 of 1972 in the Court of Civil Judge(Junior Division), Bareilly. The plaintiff has no right to sue and the cause of action. It is wrong to say that the defendant has not paid the rent after 15.05.1996 in spite of the repeated demand. The allegations of the ill treatment and abusing by the defendant is totally wrong, baseless and concocted. No such notice was given or pasted on the door of the defendant's rented room. It is also wrong to say that copy of the notice along with counter affidavit had been filed in the original suit and its copy was given to the counsel of the defendant. Hence, at this score alone, the suit is liable to be dismissed. Hence, the case be dismissed.

5. The suit was decreed and decree for eviction and for arrears of payment and for arrears of rent @ Rs.500/- per month was ordered to be paid by the lower court. Being aggrieved, the defendant has preferred this SCC revision on the following grounds that:

6. The impugned order is wholly illegal. The U.P. Act 13 of 1972 is fully applicable to the premises in dispute. The defendant-revisionist has fully proved the advance given by the plaintiff-respondents which has not been adjusted. Hence, the impugned order is wholly illegal. There was no arrears of rent. Hence, the impugned order and judgment is wholly illegal. Until and unless the first assessment is assumed according to Municipalities Act as well as under Section 2(2) of the U.P. Act 13 of 1972 there cannot be any presumption of the building being constructed in the year 1985. Therefore, the impugned judgment and decree is wholly erroneous illegal and bad in law. Even if the Act No. 13 of 1972 is not applicable, the defendant even assuming without admitting that Act No. 13 of 1972 is not applicable the defendant-applicant is entitled for the benefit under Section 114 of the T.P. Act. In any view of the matter, four month rent was not due. Hence, the suit could not be decreed.

7. It has been held in Ram Swaroop Rai Vs. Smt. Leelawati, 1980 ARC 466 that the municipal records appearing on the completion of construction alone is a criteria in order to prove the assessment as contained in the explanation to Section 2(2) of the U.P. Act 13 of 1972. The trial court has decreed the suit without examining the first assessment in accordance with Section 2(2) of U.P. Act No. 13 of 1972 and as such, the impugned judgment and decree is wholly illegal and erroneous and bad in law.

8. This Civil Revision was taken up for hearing on 11.11.2022.

9. No one appeared from the either side. Since the revision should be decided on merit, hence, the judgment was reserved and this judgment is passed on merit.

10. From perusal of file it transpires that Sri Sarvasri Prakash and Sri Apoorva Prakash, advocates have filed Vakalatnama on behalf of defendant land-lord on 12.02.2001. Later on Sri Shailendra Kumar Jauhari and Kshitij Shailendra, advocates have filed Vakalatnama from the side of the respondent, Rukmani Devi on 29.07.2003. An application to vacate the stay and a counter affidavit have also been filed on behalf of respondents.

11. In the counter affidavit the respondent has reiterated the contents of her plaint and has denied the averments of the revision and has said that the provisions of UP Act No.13 of 1972 are not applicable as the map of the disputed house was itself got sanctioned on 13.04.1984 which clearly shows that the construction were raised thereafter. She had denied that the house in suit was constructed in the year 1980. According to the respondent, the finding regarding non-applicability of Act No.13 of 1972 while deciding issue no.1 is true and correct. Further she has averred that there was no assessment and it was not the case of defendant revisionist that the building was subject to municipal assessment. According to the respondent land-lord, the finding of the trial court that on the basis of date of construction the house in suit falls under the exemptions as enumerated under Section 2 of the Act is a correct finding. The ex parte stay order dated 16.02.2001 be vacated and the amount of monthly rent be deposited in the bank account of the respondent land-lord instead of depositing in the court as the opposite party is finding it very difficult to withdraw the amount from the court.

12. No rejoinder affidavit has been filed by the revisionist. The record of the lower court has been summoned and it is before the Court.

13. The following oral evidence were adduced by the plaintiff land-lord to prove the case:

(I) PW-1, Rukmani Devi, plaintiff land-lord (ii) PW-2, Ghanshyam.

14. Documentary evidences of the plaintiff land-lord are the map sanctioned by the Bareilly Development Authority, copy of the notice, copy of the affidavit produced in Original Suit No.371 of 1996 (Dev Raj Vs. Rukmani Devi).

15. From the side of defendant tenant following witnesses have been testified:

(I) DW-1, Dev Raj, tenant himself (ii) DW-2, Urmila.

16. The trial court has framed following points for determination:

(1) Whether the provisions of UP Act No.13 of 1972 are applicable to the house in suit?

(2) Whether the notice given by the plaintiff was served on the defendant?

(3) Whether the house rent is Rs.1,000/- per month or Rs.500/-?

(4) Whether the defendant had provided Rs.20,000/- to the plaintiff, if yes, its effect?

(5) Whether the respondent has paid the rent from May, 1996?

(6) Whether the respondent has not paid the rent to the plaintiff since May, 1996?

17. The trial court had decided the points for determination serially.

18. Point No.1--In this respect the trial court has concluded that the Act of 13 of 1972 is not applicable to the house in suit. The basis of the finding is that the map was sanctioned by Bareilly Development Authority on 19.04.1984, therefore, it cannot be said that the house was made in 1980 as alleged by the defendant. It would have been constructed certainly after 1984. In this regard the defendant has replied in written statement that the property in suit is covered under the Act of 13 of 1972 and the property in suit is very old. The rear portion of the house is made in 1973. The defendant tenant has also relied on the citation in Ram Swaroop Rai Vs. Smt. Leelawati, 1980 ARC 466 in which it is held that the municipal records appearing on the completion of construction alone is a criteria in order to prove the assessment as contained in explanation to Section 2(2) of the Act of 13 of 1972 and the trial court had decreed the suit without examining the first assessment in accordance with Section 2(2) of the Act.

19. According to this Court when it has been established from the documentary evidence that the map was sanctioned on 19.04.1984 then certainly the house could not be constructed before the said date. As per the relevant proviso enumerated in Section 2 where construction of a building is completed on or after April 26, 1985 then the reference in this section to the period of 10 years shall be deemed to be a reference to a period of 40 years from the date on which its construction is completed. The option was also open to the tenant to file a copy of assessment if so available to establish that the house in suit was completed prior to the cut date April 26, 1985. In this respect explanation-1 is also relevant which has been perused by this Court. Section 2 of the Act reads as under:-

"2. Exemptions from Operation of Act.- (1) Nothing in this Act shall apply to-

(a) any building belonging to or vested in the Government of India or the Government of any State or any local authority ; or

(b) any tenancy created by grant from the State Government or the Government of India in respect of a building taken on lease or requisi-tioned by such Government ;, or

(c) any building used or intended to be used as a factory within the meaning of the Factories Act, 1948 ; or

(d) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out along with the building :

Provided that nothing in this clause shall apply in relation to any shop or other building, situated within the precincts of the cinema or theatre, the tenancy in respect of which has been created separately from the tenancy in respect of the cinema or theatre ; or

(e) any building used or intended to be used as a place of public entertainment or amusement (including any sports stadium, but not including a cinema or theatre) , or any building appurtenant thereto ; or

(f) any building built and held by a University or any other statutory corporation or' by a society registered under the Societies Registration Act, 1860, or by a co-operative society, company or firm, and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or as a guest house, by whatever name called, for the occupation of persons having dealing with it in the ordinary course of business.

(2) Except as provided in sub-section (2) of section 24 or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.

Explanation- For the purposes of this sub-section,-

(a) the construction of a building shall- be deemed to have been completed on the date on which-the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :

Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants ;

(b)"construction" includes any new construction in place of an existing building which has been wholly or substantially demolished ;

(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.

(3) The State Government, if it is satisfied that it is necessary or expedient so to do in the interest of genera public, may by notification in the Gazette, exempt from all or any of the provisions of this Act any building which is owned by an educational or charitable institution and the whole of the income derived from which is utilised for the purposes of that institution, and may in the like manner cancel or amend such notification."

20. On the basis of aforesaid discussion this Court is in conformity with the findings recorded by the trial court that the house in suit is not governed by UP Act No.13 of 1972.

21. Point No.2--The plaintiff land-lord has proved this fact that she had provided dasti summon to the defendant on 06.01.1997 and when he did not receive it, the same was pasted at the house of the defendant. It is noteworthy that a suit i.e. Original Suit No.371 of 1996 was filed by the defendant tenant against the land-lord in which the land-lord had filed affidavit and also copy of the notice dated 06.01.1997. The trial court found that from the perusal of the aforesaid papers it has again been established that the notice was properly served to the defendant. This Court is also in conformity with the finding recorded by the lower court contrary to these facts no any adverse fact could be established by the defendant tenant.

22. Point No.3--According to plaintiff land-lord the monthly rent of house is Rs.1,000/- per month but denying it, the defendant tenant has said that the monthly rent of the house in suit was only Rs.500/- per month. In this respect both parties had filed affidavit and from the side of the plaintiff an independent witness, Ghanshyam has tried to prove the fact that even in his presence Rs.1,000/- monthly rent was fixed but evidence thereon has not been accepted by the trial court. The trial court considered the accommodation provided to the tenant that it was only one room, store, bathroom and latrine without kitchen. The trial court has also based its finding stating that in this regard no documentary evidence could be produced by the plaintiff. When there was dispute regarding rate of rent then it was also the duty of the plaintiff land-lord to get the rate of rent from administration and after filing the same the plaintiff land-lord could argue that in the area where the house in suit exists is not so as said by the defendant and for such accommodation the rate of rent is not less than Rs.1,000/-. It is known to all that the Government has fixed the market value of the properties and also rate of rent of the urban areas, therefore, the rate of rent fixed by the Government was very much available in Collectorate which could be obtained by the plaintiff land-lord to prove the averments of the plaint. Thus, it is found that there is omission on the part of the plaintiff land-lord, therefore, a presumption arises against the plaintiff that if any public document is already available and the same has not been filed by the concerned party it would be presumed that it is against the party who had not filed it.

23. Section 114(g) of the Indian Evidence Act reads as under:-

"114 Court may presume existence of certain fact.--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume--

x x x x x

(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

24. Thus on the basis of the aforesaid discussion this Court also comes to the conclusion that a monthly rent of the house in suit was Rs.500/- and not Rs.1,000/- per month as alleged by the plaintiff land-lord

25. Point No.4--It is said by the defendant that he had provided Rs.20,000/- to the plaintiff land-lord for construction of kitchen with condition that this amount would be adjusted in the rent. This point has also been decided against the tenant. In this respect there is only oral evidence of defendant DW-1 and Urmila, DW-2. Urmila is maid servant of the defendant, therefore, it appears that being maid servant of the defendant she is deposing in his favour. The trial court has noted the fact that if actually Rs.20,000/- were provided to the plaintiff, why date of payment was not mentioned in the written statement. This aspect has also been considered by the trial court that if such amount would have been given to the plaintiff, certainly any receipt or document would have been reduced in writing.

26. Considering the aforesaid circumstances and evidence the trial court concluded that a prudent person cannot believe the evidence of the defendant and his maid servant in this regard.

27. According to the trial court it was a concocted story. Hence, this point has been decided against the tenant. According to this Court if Rs.20,000/- would have been provided certainly it would have been provided either in bank account or at least by affixing revenue stamp. If it was given to the plaintiff land-lord it would have been withdrawn from the bank. In this regard document regarding withdrawal of the money from the bank would have been produced. If such money was already with tenant in cash, he has to explain as to how such amount was available with him.

28. On the basis of aforesaid discussion this Court is of the view that the finding recorded regarding non-payment of Rs.20,000/- to the plaintiff land-lord by the tenant has been correctly decided by the trial court.

29. Point No.5--This issue is as to whether the defendant has not paid the rent since May, 1996. The trial court has rightly concluded that the burden of proving the payment of rent is on the tenant. He has to prove that he has made the payment of rent. The trial court noticed that in this regard defendant tenant has not produced any receipt while according to the plaintiff land-lord the defendant has not paid the rent since May 15, 1996. The trial court found that the fact of non-payment of rent since May 15, 1996 has been sufficiently proved by the plaintiff by adducing her evidence and evidence of PW-2. It is a matter of surprise that plaintiff is neither taking any receipt regarding giving Rs.20,000/- for the construction of kitchen to the plaintiff and also not taking receipt of rent from the plaintiff land-lord.

30. In this regard no sufficient and cogent evidence has been produced by the defendant tenant that he was paying the rent and he has paid the rent before any person. It cannot be assumed that a maid servant who occasionally comes to the defendant's rented house for an hour for washing, cleaning and dusting before whom the rent would have been provided continuously by the tenant. Hence, the finding recorded in this regard by the trial court is also affirmed by this Court.

31. In the last the trial court concluded that the property in suit is not covered by the provisions of UP Act No.13 of 1972. The tenant defendant could not prove payment of rent. By the notice under Section 106 of Transfer of Property Act the tenancy was rightly terminated by the plaintiff. The defendant tenant could not prove the payment and was found to be a defaulter. Hence, the petition was allowed and an order of eviction was passed but it has been concluded that since the plaintiff could not succeed in proving that the rate of rent is Rs.1,000/- hence it was directed that since May 15, 1996 till the date of eviction the plaintiff land-lord would be entitled to receive the amount of rent and for damages at the rate of Rs.500/- per month.

32. If the plaintiff land-lord was aggrieved by the finding regarding determination of rent to be only Rs.500/- per month instead of Rs.1,000/- per month, the plaintiff land-lord had option to file a cross revision. Hence, it would be concluded that she has accepted the finding given by the trial court regarding rate of rent. Therefore, this Court cannot and should not enter into the question regarding rate of rent any more.

33. So far as the finding regarding rest points for determination are concerned, this Court is in conformity with the finding given by the trial court as a whole. The revisionist could not establish any error, mistake regarding facts or applicability of law applied by the trial court. Thus, on the basis of the aforesaid discussion, this Court is of the opinion that the trial court's judgment is liable to be affirmed. The revision preferred by the defendant tenant has no merit and is liable to be dismissed with costs.

ORDER

34. The revision is dismissed with costs.

35. Let the lower court record be sent back to the District Judge, Bareilly with a copy of this judgment.

36. The respondent land-lord is entitled to execute the judgment and decree of the lower court and this Court as well.

Order Date :- 20.12.2022

Shahroz/S.Verma

(Umesh Chandra Sharma,J.)