Ramesh Kumar Singh vs Virendra Singh And Others
2022 Latest Caselaw 21922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Reserved On: 30.11.2022
 
Delivered On: 20.12.2022
 

 

 
Court No. - 30
 

 
Case :- CIVIL REVISION No. - 465 of 2012
 

 
Revisionist :- Ramesh Kumar Singh
 
Opposite Party :- Virendra Singh And Others
 
Counsel for Revisionist :- Sumit Daga,Vikrant Pandey
 
Counsel for Opposite Party :- Abhijit Banerjee
 

 
With
 

 
Case :- CIVIL REVISION No. - 486 of 2012
 

 
Revisionist :- Virendra Singh And Others
 
Opposite Party :- Ramesh Kumar Singh
 
Counsel for Revisionist :- Abhijit Banerjee,Vikrant Pandey
 
Counsel for Opposite Party :- Sumit Daga
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Since both the revisions have been preferred by the defendant-tenant and the plaintiffs-landlords, respectively, against the judgment and order dated 22.8.2012 passed by Judge Small Causes Court/Additional District Judge, Court No.1, Hathras. Therefore, both the revisions are being decided by this common judgement.

2. In brief, facts of the case are that Virendra Singh and others are the owner and the landlord of the house in suit in which the opposite party-defendant is a tenant from 1994 @ 1,000/- per month apart from 10 % water and house tax.

3. Since the plaintiffs stay out of Hathras for a long time in connection to their job hence their mother Smt. Shanti Devi used to live with minor grand son Raju alias Arvind Kumar. Smt. Shanti Devi died in the year 2001, thereafter plaintiffs are the owner and landlords of the house in question and are entitled to receive the rent. The defendant is a great defaulter in payment of rent and has not paid the rent of the said house since 1.10.1999. When plaintiffs demanded the rent, he preferred false case against the plaintiffs for permanent injunction for unnecessarily harassing the plaintiffs.

4. Plaintiffs through their counsel sent legal notice dated 11.8.2022 and offered to pay the rent and taxes within 30 days from receiving the notice. In spite of service of notice, defendant did not pay the rent and the amount of taxes but a false and fabricated reply alleging himself to be the tenant @ Rs. 200/- per month and also did not accept that the amount was due against him. The tenancy of the defendant has been terminated. Since 1.10.1999 to 31.18.2002 there is arrears of rent of Rs. 25,000/-, Rs. 3,500/- each for house and water tax along with Rs. 3,00/- expense towards notice. Total Rs. 42,300/- is due which has not been paid by the defendant in spite of notice, hence the defendant is liable to be evicted and the due amount of the rent is liable to be recovered and the defendant-tenant is also liable to pay Rs. 2,500/- per month for use and occupation of the shop in suit. Valuing the suit and after paying the sufficient court fee, the plaintiffs had preferred the suit.

5. In written statement 11 C defendant admitted the plaintiffs to be the owner and landlords of the shop in suit and has said that no cause of action arises to the plaintiffs; they are not entitled for any relief; the defendant-tenant had taken the shop in suit on rent from 10.2.1992 @ Rs. 2,00/- per month along with house and water tax from Smt. Shanti Devi; he has been paying the rent regularly to Smt. Shanti Devi but she never provided any receipt, however, she used to note the receiving on a diary; Shanti Devi died in the year 2001, thereafter the tenant paid the rent to Dharmendra Kumar till November 2001; Dharmendra Kumar also passed away on 20.11.2001, thereafter plaintiffs demanded the rent from him separately and served notice through their counsel in the month of February, 2002 and thereafter with mutual consent received the rent from the defendant without giving receipt of rent but noted the payment in diary and also got the signature of the defendant; the said diary is in the possession of the plaintiffs.

6. On receiving of notice dated 11.8.2002 defendant came to know about the malafide intention of the plaintiffs and prepared reply on 4.9.2002 and sent through his counsel on 5.9.2002. Defendant-tenant also sent the reasonable rent from 11.6.2002 to 10.9.2002 which was not received by the plaintiffs. The notice is completely illegal and the illegitimate on which basis the tenancy never ends. On the date of notice dated 11.8.2002, there was only arrears of two months rent which was not received intentionally by the plaintiffs. In the notice, the plaintiffs have wrongly endorsed that the rent is due since 1.10.1999. The tenancy commenced from 11th of the month, not from the first day of the month. The plaintiffs have not filed any document, hence the suit is barred by Order 7 Rule 14 CPC, Section 106 of Transfer of Property Act and Section 20 (2) (A) of U.P. Act No. 13 of 1972. Raju s/o Dharmendra Kumar is a major person and not the minor, in the plaint he has wrongly been shown to be minor.

7. The defendant instituted original suit no. 492 of 2002 (Ramesh Kumar Vs. Raju ) in the Court of Civil Judge (J.D.) Hathras, for permanent injunction in which interim injunction has been issued in favour of the defendant. The house in suit is situated at the outskirt of Hathras at Madhugari where there is no market and the rent of shop is not more than Rs. 200/- monthly. Therefore, the suit is liable to be dismissed with cost.

8. The plaintiffs filed replica 12C1 and denied the contents of the written statement and reiterated the version of the plaint.

9. From the side of plaintiffs, P.W.-1, Virendra Singh and P.W.2, Om Prakash had been examined. In documentary evidence papers from list 18 C1 notice, postal receipt, acknowledgment and alleged diary had been filed.

10. From the side of defendant-tenant, he himself examined as D.W.-1 and one Komal Singh as D.W.2. In documentary evidence defendant-tenant had filed chalani form, tender receipts; notice dated 20.2.2002, registry receipt, copy of the reply dated 4.9.2022 and other tenders.

11. After hearing, the learned trial Court framed the following points for determination:

(1) Whether the notice dated 11.8.2002 given by the plaintiffs is against the law and this notice does not terminate the tenancy of the defendant-tenant?

(2) Whether the rate of the shop was Rs. 1000/- per month apart from house and water tax as alleged by the plaintiffs or the rate of the shop was Rs. 200/- per month including house and water tax as alleged by the defendant-tenant?

(3) Has the defendant-tenant made any default in paying the rent of the shop in question, if so, the effect?

(4) Are the plaintiffs entitled to any relief? If yes, then how?

12. In this case the trial Court has decided point nos. 2 & 3 in favour of the landlord but has decided point no. 1 against the plaintiffs/landlords and accordingly point no. 4 has been decided partially in favour of the defendant-tenant and had declined the relief of eviction.

13. Against the observations made by the trial Court in respect of issue no. 1 and accordingly regarding partially allowing the relief through point no.4, the plaintiffs have preferred the revision bearing no. 486 of 2012. Being aggrieved by the observations made in respect of point no. 2 & 3 accepting the rate of Rs. 1,000/- per month plus house and water tax and not admitting the version of the defendant-tenant and treating the defendant-tenant to be defaulter and directing him to pay the arrears of the rent and taxes as per the version of the plaintiffs, the defendant has preferred revision bearing no. 465 of 2012.

14. This Court is deciding the veracity of the findings given by the trial Court on the basis of evidence and the relevant law. Therefore, both the revisions are being decided as under.

15. Point for determination no. 1;

This point has been decided against the plaintiffs and the trial Court has recorded the finding that on perusing the notice, he found that after the expiry of 30 days, tenancy has not been terminated however it has been mentioned therein to provide possession within 30 days hence notice in question is found to be contrary to the principles enunciated in Section 106 of the Transfer of Property Act, 1882. The trial court concluded that the notice is defective, therefore, the tenancy of the defendant-tenant can not be terminated in accordance with law and he can not be evicted.

In this case, notice has been given on 11.8.2002, the defendant admits that on 4.9.2002 he had prepared the reply of notice and had sent it to the plaintiffs on 5.9.2002. The record of trial Court is not available with this Court. However, some relevant papers have been annexed by the tenant as annexures to the revision. Perusal of the plaint shows that the plaint had been instituted on 29.10.2009 while in the judgment the trial Court has written it to be presented on 21.10.2002 which may be a typographical mistake.

For proper adjudicating this point, it would be proper to mention Section 106 of the Transfer of Property Act 1882.

Section 106 in The Transfer of Property Act, 1882;

1 [106. Duration of certain leases in absence of written contract or local usage.

(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]

By the amendment Act 3 of 2002, Section 106 has been amended w.e.f. 31.12.2002 by which now Section 106 contains four sub-sections and the period of notice is now 15 days where the lease is for any other purpose other than the agricultural and manufacturing, if the tenancy is month to month but where the tenancy is from year to year, the period of notice would be 6 months as it was prior to the amendment. Since in this case the notice was given before amendment on 11.8.2002, therefore, in this case the notice should have been given prior to 30 days. Amended sub-section 3 of the aforesaid Section is important. According to which notice shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. In this case the notice was given on 11.8.2002, the notice was sent through registered post within the city hence it would have been received by the defendant-tenant within three or four days. Though the receipt/acknowledgment is not on record to conclude that when and on which date the defendant-tenant had received notice but he admits that he had prepared reply of the notice on 4.9.2002 and had sent the same to the plaintiffs through his counsel on 5.9.2002. If days are calculated, it comes out that even from 4.9.2002, the suit was instituted after 30 days i.e. 29.10.2002. Thus, it can not be said that 30 days period was not provided to the defendant-tenant to comply with the notice.

The notice is not on record, copy of the notice has not been filed by either party but the trial Court has noted the 'second paragraph of the notice' in which it is written that after receiving the notice within 30 days, defendant had to pay the arrears of rent and to evict the possession of the shop in suit and to provide the actual possession to the plaintiffs.

The learned trial Court referring the judicial precedent Prabhakari Adhikari Devasthan Vibhag Jodhpur and Others Vs. Jamshed Ali and Others, 1999 AIHC 225 (Rajasthan High Court), concluded that if in the notice it is not written that the tenancy would be terminated after the expiry of 30 days, the said notice is illegal and by such notice the tenancy can not be terminated. The notice was given on 11.8.2002 while the suit was instituted on 29.10.2002 after expiry of two months and 18 days, therefore, it can be concluded that notice given by the plaintiffs-landlords is legal hence finding given by the trial Court regarding point no.1 treating the notice to be not legal in respect of eviction of the defendant-tenant is reversed and it is concluded that the notice under Section 106 of Transfer of Property Act, is legal for the purposes of the suit. This finding finds support from the clause 3 of the amendment Act 2002 which is as under:

"The provisions of Section 106 of the principal Act, as amended by Section 2 shall apply to, (a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act."

Thus, the notice of only 15 days is sufficient.

16. Point for determination no. 2:

On the basis of the averments of the plaint and the written statement, this point for determination had been framed as to whether monthly rent of the shop in suit is Rs. 1,000/- per month plus water and house tax or is only Rs. 2,00/- per month including water and house tax, as alleged by the defendant-tenant.

This issue has been decided by the trial Court in favour of the owner landlord on the basis of evidence. The trial Court has admitted that there is no weakness or admission in the evidence of the plaintiffs' witnesses on which basis it is concluded that the rate of rent is not less than 1,000/- per month and house and water tax in addition to that. P.W.1 and P.W.2 have proved the diary and it has been accepted by the trial Court. Defendant-tenant could not produce any cogent and reliable evidence that the rate of rent was only Rs. 2,00/- per month and also including the house and water taxes. Though the defendant-tenant had mentioned the property to be situated at the outskirt of the city but in examination he had admitted that shop in suit is situated 10-15 steps away from the main post-office. He has also admitted that behind the shop in suit, there is Gover Hospital and Hathras Kotwali is also situated at a distance of stone's throw. It is also admitted to the defendant that Kotwali and head office both are situated in the middle of the city. On the basis of said evidence the trial Court concluded that in such a posh area, the rate of shop in suit can not be less than Rs. 1,000/- per month plus house and water taxes.

The trial Court has also imposed responsibility on the defendant-tenant to prove this fact and found that the defendant-tenant could not discharge his duty.

It is settled law that the burden to prove the payment of rent is on the tenant. In this respect the learned trial Court has cited following rulings-

a) Suresh Chandra and Others Vs. Special Judge (E.C. Act)/Additional District Judge, Jalaun- Urai, 2005 A.L.J.(N.O.C.) 1062 (Allahabad).

b) Md. Siddiqui Vs. Second Additional District Judge Unnao and Ohters, 1997 (15) L C D-751.

c) Smt. Sulocharani Jain and Others Vs. Eighth Additional District Judge, Saharanpur and Others, 2002 (20) LCD 785 (All. High Court).

d) Balram Vs. Baikunthi Devi, 1988 AWC 1528.

e) Laxmi Narain Gupta Vs. Smt. Shanti Nigam, 2003 (21) L.C.D. 1301.

f) Smt. Shanti Devi Mishra Vs. Sri Gopal Narain Mishra and Others, 1983, ALJ, 839.

On the basis of the principles laid down in the aforementioned judicial precedents, the learned trial Court concluded that the burden to prove the payment of rent is on the tenant. This Court is also in conformity with the trial Court about this finding.

In Balram (supra), it has also been held that as per Section 7 of the U.P. Act 13, 1972, the burden to pay the water and house tax is on the tenant if contrary to that there is no any agreement. In this case the defendant could not establish that there was any agreement between the landlords and the tenant that water and house taxes would be paid by the plaintiffs-landlords or it has also been included in the rent.

In Smt. Shanti Devi (supra), it has been held that if the amount under Section 20 (4)of the U.P. Act No. 13, 1972, the rent is not deposited, the tenant would be liable to be evicted. It has also been propounded that the arrears of water tax has to be deposited by the tenant. In this respect it is noteworthy that the trial Court has concluded that U.P. Act, 13, 1972 does not apply as the house was built prior to the cut of date i.e. April 26, 1985, for application of the U.P. Act, 13, 1972. In this respect the relevant portion of Section 2 is reproduced herein:

[Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter.]:

[Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of 6 [forty years] from the date on which its construction is completed.]

Explanation I. [For the purposes of this 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 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.

This Court is of the considered view that the rate of rent was Rs. 1,000/- per month plus house and water tax which has also been proved from the evidence of P.W.1 and P.W.2 who have also proved the diary in which the payment of rent made by the defendant-tenant has been entered. Thus on the basis of the oral and documentary evidence and also considering the locality of the shop in suit, this Court concludes that the findings recorded by the trial Court on this point is correct.

17. Point for determination no. 3, has been framed as to whether the defendant-tenant has defaulted in payment of rent. This point has also been decided against the defendant-tenant and in favour of the landlord. From the evidence of P.W.1 and P.W.2 and also on the basis of diary, it is proved that the defendant-tenant has not paid the rent and he has wrongly taken the defence that he had paid up to date rent and when the rent was not accepted by the plaintiffs, he sent the rent amount through money order.

It has also been proved that the rent was Rs. 1,000/- per month and the tenant was also liable to pay 10 % of the house and water taxes. Certainly the payment has not been made by the tenant and he has defaulted in paying the rent. As documentary evidence, defendant-tenant had filed some tenders which were perused by the trial Court and the trial Court found that some amount through five tenders have been deposited by the tenant but he has not deposited the house and water taxes in addition to the rent and he has not deposited the rent @ 1,000/- per month after service of notice. The defendant-tenant has not deposited the admitted rent in the Court, hence, it is concluded that the defendant-tenant has defaulted in making payment of the rent. Thus, point for determination no. 3 goes against the defendant-tenant and in this regard the finding recorded by the trial Court is affirmed.

18. The point for determination no. 4;

On the basis of the aforesaid discussions, it has been proved that the defendant-tenant is the defaulter, he has not paid the rent and taxes, there is no defect in notice, hence, the trial Court has wrongly dismissed the suit in respect of relief of eviction. Since it is found that the suit was not bad under Section 106 of the Transfer of the Property Act, therefore, the suit had to be decreed in toto for the reliefs claimed by the plaintiffs-landlords.

19. Both the revisions are decided accordingly.

Order

(i). Civil Revision No. 465 of 2012 is dismissed with cost.

(ii). Civil Revision No. 486 of 2012 is allowed and the decree of eviction from the shop in suit is also passed against the defendant-tenant (Ramesh Kumar Singh) in addition to the other reliefs already granted by the trial Court.

(iii). Let a copy of this order be placed on the record of Civil Revision No. 486 of 2012 (Virendra Singh and Others Vs. Ramesh Kumar Singh).

(iv). A copy of this judgment be sent to the Court of Judge Small Causes Court/Additional District Judge Court No. 1, Hathras, for keeping on the concerned file.

Order Date :- 20.12.2022

S.Verma

{Umesh Chandra Sharma,J.}