Anoop Mishra And Another vs Smt. Bandana Singh And Others
2022 Latest Caselaw 3692 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 5
 
Case :- MATTERS UNDER ARTICLE 227 No. - 1638 of 2022
 
Petitioner :- Anoop Mishra And Another
 
Respondent :- Smt. Bandana Singh And Others
 
Counsel for Petitioner :- Umesh Kumar Srivastava
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard Sri Umesh Kumar Srivastava, learned counsel for the petitioners and Sri Shiv Nath Tilhari, learned counsel for the respondent no.1.

2. This petition has been filed challenging the order passed on 25.03.2021 passed by the Trial Court and the order dated 18.12.2021 passed by the Additional District Judge, Sitapur.

3. It is the case of the petitioners as argued by the learned counsel that their father was originally the tenant of the shop in question. After his death, petitioners as well as their two brothers inherited the tenancy. The landlady filed a Suit for ejectment and arrears of rent and for damages for use and occupation of the shop against the petitioners in the Court of Judge, Small Causes Court, registered as S.C.C. R.C. No.13 of 2011.

4. Learned counsel for the petitioners has submitted that the Suit was filed only against the petitioners Anup Mishra and Sunil Mishra and there was a failure to implead all the four sons of the erstwhile tenant Late Ambika Prasad Mishra, namely, Mayank Ranjan Mishra and Sushil Mishra. It was pleaded that initially Smt. Laxmi Devi, the mother-in-law of the plaintiff and her predecessor-in-interest had filed a Suit bearing SCC Suit No.8 of 1985 against Late Ambika Prasad Mishra which was compromised and it was decided that monthly rent would be enhanced every four years by 15% and such rent shall be payable month to month by the tenants. The petitioners did not pay the rent for the period of six months from January, 2011 to June, 2011 amounting to Rs.5934/-. Accordingly, a notice under Section 106 of the Transfer of Property Act dated 19.07.2011 was given to the tenants by the respondent no.1 through the counsel demanding the arrears of rent within a period of one month and also terminating the tenancy requiring them to vacate the shop after expiry of the aforesaid period. It was alleged by the plaintiff that the petitioners neither paid the arrears of rent nor vacated the shop hence need arose to file the SCC Suit for arrears of rent, eviction and damages.

5. It is the case of the petitioners that after service of summons they had appeared before the Court and filed their written statement along with an application for tendering all arrears of rent under Order XV Rule 5 C.P.C. In the written statement they had admitted the rate of rent but they had also stated that there were two other brothers of the petitioners who were not impleaded and therefore, the Suit was bound to fall. It was also alleged that there was no arrears and no default as just after receipt of notice by them on 21.07.2011, they had sent two Money Orders to the landlady on 26.07.2011 i.e. within the period of 30 days notice as given by the landlady, but such Money Orders were returned un-served with the remark that the landlady had gone out somewhere. Such return of Money Orders was made on 04.08.2011 to the petitioners and immediately thereafter the Suit for eviction was filed and therefore the petitioner had no time to deposit the rent under Section 30 of the U.P. Act No.13 of 1972 in Court. After receipt of notice, on the first date of hearing on 07.02.2013, the petitioners deposited the entire rent of arrears along with 9% interest therefore there was no case for the learned trial court to find any default in payment and no eviction could be ordered.

6. It has been argued by learned counsel that only two issues were framed by the trial court (i) as to whether the notice that was served upon the petitioners was a valid notice and (ii) whether the tenants were at default in payment of rent.

7. Learned counsel for the petitioners has argued that the tenants were not defaulters under Section 20(2)(a) as they cannot said to have been failed to pay such rent on demand being raised. He has referred to the judgment rendered by the Co-ordinate Bench of this Court in Ram Niwas Gupta Vs. Rajendra Prasad 2014 (3) ARC 442, where the Coordinate Bench of this Court has placed reliance upon the judgment rendered by the Supreme Court in the case of Madan and Company Vs. Wazir Jaivir Chand, AIR 1989 SC 630 and observed that in so far as delivery of Money Order is concerned, the same was returned with the Postal Department remark that "the addressee was not available and was out of station". In his examination-in-Chief and cross examination the landlady had never stated that the Money Order was sent to an incorrect or incomplete address therefore in terms of the law settled by the Supreme Court that even if the Postal Department returns the notice/ letter with the remark "not met", it shall be deemed to have been served.

The Coordinate Bench had observed that under Section 20 (2)(a) Suit moved for eviction on the ground of default may be filed in case the tenant is in arrear of rent for four or more months and has failed to pay the same inspite of notice of demand. Tender of rent through money order sent by the tenant at the address of the landlord is tender of rent bringing him out of the definition of ''defaulter' and the Suit cannot be decreed on the ground of default. In case the rent is either refused by the landlord or is not received by him due to technical reasons such as his non-availability at the address which may the correct address of the landlord, the tenant cannot be held to be in arrears even though the rent remained unpaid.

8. It has been argued by learned counsel for the petitioners that on the Money Order that was sent, the endorsement was made by the husband of the plaintiff that she had gone outside but the plaintiff had stated that she was a judicially separated wife and although living in the same house, her husband had no concern with the tenanted premises as she had been bequeathed the said premises by her mother-in-law Smt. Laxmi Devi through a duly executed Will.

9. It has been argued by petitioners that both the learned courts below failed to appreciate that the said Suit itself was not maintainable without impleading all the defendants/ heirs of the erstwhile tenant Late Ambika Prasad. The tenancy being that of a non-residential premises had devolved upon all the legal heirs i.e. the four sons of Late Ambika Prasad and only two were impleaded and Suit was liable to fail on the ground of non-impleadment of necessary parties.

10. Learned counsel for the petitioners has placed reliance upon two judgements of Coordinate Benches in Lalit Kumar Vs. Neel Kantheshwar and others, 2007 (25) LCD 264 and Rafiqa Begum Vs. Abdul Salam and four others 2015 (3) ARC 637. Learned counsel has pointed out from paragraph-4 of the judgment in Lalit Kumar (supra) that reliance was placed upon Supreme Court judgment in AIR 2001 SC 2251 and AIR 2002 SC 804 to say that ordinarily after the death of a tenant particularly in case of tenancy of non-residential building, all the heirs must be impleaded as tenant to the ejectment Suit. In Rafiqa Begum (supra) rendered by Coordinate Bench, this Court had also considered the definition clause under Section 3(a) of the U.P. Act No.13 of 1972 which defines the tenant in relation to a building, meaning a person by whom its rent is payable, and on the tenant's death; in case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; and in the case of non-residential building, his heirs.

11. This Court had held in Rafiqua Begum (supra) that even if the daughter who had filed an application for impleadment in a release application for non-residential accommodation, was not a necessary party she would still be a proper party to such release proceeding and ought to have been impleaded and directed the learned trial court to implead the daughter as well in the proceeding for release of commercial building.

12. It has been argued by learned counsel for the petitioners that the trial court has wrongly observed that even on refusal of Money Orders the tenant had the opportunity to deposit the rent in Court under Section 30 of the U.P. Act No.13 of 1972, failing to appreciate that notice was served upon the petitioners only on 23.07.2011 and the Suit was filed on 07.09.2011 and after the filing of the Suit for eviction, no application for deposit of rent in Court under Section 30 can be made by the tenant. Any tenant who wishes to deposit arrears of rent must show his bonafide by filing an application only under Section 20(4) and tendering the rent in the court along with 9% interest thereon. The petitioners resorted to such tendering of rent at the time of filing of written statement on 07.02.2013 along with 9% interest but both the learned courts below failed to appreciate the provision of Order XV Rule 5 C.P.C. and did not give benefit of Section 20 (4) of the U.P. Act No.13 of 1972.

13. Learned counsel for the petitioners has placed reliance upon the judgement rendered by Coordinate Bench of this Court in Chitranjan Singh Vs. Samarpal Singh, 2012 (1) ARC 282, which in the context of Section 20 sub-clause (4) of the U.P. Act No.13 of 1972 has held that it is the date when after filing of the written statement of the defendant, the Court proposes to apply its mind to identify the controversy in the Suit.

14. It has been argued that the summons of eviction Suit were not served upon the petitioners but the Court assume that the summons were served on the tenants and they willfully failed to appear and therefore the court proceeded ex parte. When the petitioners came to know, they filed an application for recall of the order proceeding ex parte. When such recall application was allowed, an opportunity to file written statement was given, then the petitioners filed written statement along with an application tendering the rent along with 9% interest thereon. Therefore, the Trial Court as well as the Revisional Court erred in not giving benefit of Section 20 sub-clause (4) of U.P. Act No.13 of 1972 to the petitioners.

15. Learned counsel for the petitioners has argued that plaintiff was only judicially separated and not divorced from her husband and was living in the same house and rent was being regularly taken by the husband of the plaintiff and receipt was sent by the plaintiff thereafter. For reasons to generate ground for eviction on question of arrears of rent, the plaintiff at the time of tendering of rent from January, 2011 to June, 2011 had taken the excuse that the receipt book had finished and she would sent the rent receipt as and when she got it printed again.

16. Learned counsel for the respondent no.1 Sri S.N. Tilhari, on the other hand has pointed out from the order of the trial court that the arguments that are being raised before this Court have been duly considered by the trial court. He has referred to annexure-6 and 7 of the petition which are copies of Money Orders sent by the petitioners on 26.07.2011 and returned to them on 08.08.2011 saying that the addressee's husband had orally told that the addressee has gone out somewhere. Learned counsel has referred to the trial court's order where the trial court had considered the decree dated 07.02.1989 passed by the Additional Civil Judge, Sitapur, in Case No.181 of 1987, and also a copy of the plaint of the said case No.181 of 1987 and reply filed therein by Anil Kumar Singh including statements made before the trial court, certified copy of which were filed by Bandana Singh along with documentary evidence before the trial court which showed clearly that Anil Singh had ceased to be her husband and she was judicially separated.

17. It has been argued by learned counsel for the respondent that even after such Money Orders were returned to the petitioners by the Postal Department with the endorsement of the postman that the husband of the landlady refused to accept such Money Orders, if the plaintiff was disputing such endorsement made by her husband then the petitioners could have produced the postman concerned from the postal department to substantiate their claim before the trial court which they failed to do.

18. It has been argued on behalf of the respondent no.1 by her learned counsel that even after such Money Orders were returned on 08.08.2011 to the petitioners, they had sufficient time before filing of the Suit on 07.09.2011 to deposit arrears of rent under Section 30 of the U.P. Act No.13 of 1972 in Court. They did not deposit such arrears of rent in Court under Section 30. After the Suit was filed and summons were issued, the petitioner refused to take such summons. The Court found service to be sufficient and fixed the date of 21.03.2012 for filing written statement. On 21.03.2012, the petitioners failed to appear. The Court ordered to proceed ex parte and fixed the date of 25.04.2012 for hearing. Thereafter, the petitioners appeared on 17.05.2012 and filed an application for recall of order of proceeding ex parte Paper No.15-Ga2, on the same day Vakalatnama of their counsel was also filed. On the next date i.e. on 11.07.2012, the petitioners as well their counsel appeared before the Court but did not tender arrears of rent under Section 20 sub-clause (4). They tendered rent only on 07.02.2013 at the time of filing written statement under Order XV Rule 5 C.P.C. for the period from January, 2011 to January, 2013 along with 9% interest thereon. They did not deposit damages nor did they deposit cost of Suit as it requires sub clause (4) of the Act of 1972, at the first date of hearing as is required by the language under Section 20 sub-clause (4) and Explanation attached thereto.

19. Learned counsel for the respondent submits that there is a difference in language used in the C.P.C. under Order XV Rule 5 C.P.C. and its Explanation as applicable to the State of U.P. Under Order XV Rule 5, Explanation 1 says that "first hearing means the date of filing of the written statement or for hearing mentioned in the summons or where more than one dates are mentioned, the last of the dates mentioned." On the other hand in sub-clause (4) of Section 20, the Explanation refers to the first day of hearing as the "first day of any step or proceedings mentioned in the summons served on the defendants." The expression, "cost of the suit" includes one-half of the amount of counsel's fee taxable for a contested suit."

20. It has been argued by learned counsel for the respondent that the trial court has considered this argument regarding filing of application under Order V Rule 15 C.P.C. and grant of benefit under Section 20 sub-clause (4) of U.P. Act of 1972 in its judgment in detail and has found that there was no compliance of Section 20 sub-Clause (4).

21. With regard to other argument raised by learned counsel for the petitioners that the petitioners along with other two brothers had inherited the tenancy of the shop from their Late father Ambika Prasad, and therefore all of them should have been impleaded as defendants to the eviction Suit, the learned counsel for the respondents has placed reliance upon the judgment of the Supreme Court in Suresh Kumar Kohli Vs. Rakesh Jain and another, 2018 (6) SCC 708, and its paragraph-20, where the Supreme Court observed that when the original tenant dies the legal heirs inherit the tenancy as joint tenants and occupation of the one of the tenant is occupation of all the joint tenants. "It is not necessary for the landlord to implead all legal heirs of the deceased-tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tennancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."

22. Learned counsel for the respondent no.1 has also referred to the findings recorded by the trial court placing reliance upon judgment rendered in Smt. Hazra Begum Vs. Mansoor Ali and others, 2012 (2) AWC 1195, where the Suit was filed only against one of the heirs of the deceased tenant and it was held by the Court that a quit notice shall not be invalid if served upon one of the co-tenants/ joint tenants and eviction proceedings can validly be instituted thereupon. Where one or more co-tenants have surrendered their tenancy rights expressly or impliedly, their non-impleadment in the eviction proceeding or proceedings initiated by the landlord shall not be vitiated.

23. It has been observed by the trial court on the basis of the evidence led by the plaintiffs that Sri Ambika Prasad used to run a business of selling agricultural implements. Although he had four sons, one of them was working in some private job at Mumbai and another one was handicapped. Only two of the sons of Ambika Prasad were running the business of agricultural implements for the said shop as is evident from the registration of the Sales Tax Department showing Sunil Kumar Mishra to be the Proprietor and Anoop Mishra as the Manager of the business. The trial court had observed that when one or more co-tenants had surrendered their tenancy impliedly and business of the old tenant was being run by two of his heirs and rent was being paid by such two of his heirs only, it could not be said that the Suit for eviction impleading only two of the heirs of the Late tenant would fail on ground of non-impleadment of necessary party.

24. In rejoinder, learned counsel for the petitioners has stated the statements of the plaintiff to show that the she was only judicially separated not divorced from her husband Anil Singh s/o Smt. Laxmi Devi, the mother-in-law who had bequeathed the tenanted premises to the plaintiff. It was a family arrangement and they were residing together in the same house and were hand in glove with each other and therefore refusal of Money Orders by the husband as is reported by the Postal Department should be taken as refusal by the landlady, and therefore the petitioners should be given the benefit of the observations made by this Court in the judgment rendered in Ram Niwas Gupta Vs. Rajendra Prasad, 2014 (3) ARC 442.

25. It has been argued by the learned counsel for the petitioners that the limitation for tendering rent as per the notice dated 19.07.2011 received on 21.07.2011 of one month month was up to 20.08.2011 and the Suit was filed admittedly on 07.09.2011. There were only 17 days in between and very little opportunity for the petitioners to deposit rent in court under Section 30 of the Act of 1972.

26. Moreover, the learned trial court did not frame any issue regarding Section 20 sub-clause (4) and its compliance therefore the petitioners could not have been thrown out by making observations placing reliance upon Section 20 sub-clause (4) of the Act of 1972.

27. It has been submitted by learned counsel for the petitioners that the judgment relied upon by the respondents for service of notice and non-impleadment of all the heirs Suresh Kumar Kohli (supra) is not applicable as it relates only to residential premises and not to commercial premises.

28. Learned counsel for the respondent has pointed out paragraph-3 of the judgement rendered in Suresh Kumar Kohli Vs. Rakesh Jain and another (supra), the facts of the case as narrated by the Supreme Court were that the tenants' father was running a family business in the name and style of M/s Rakesh Wool Store in the Suit premises on a monthly rent of Rs.450/- per month.

29. This Court having considered the rival submissions has also gone through the learned trial court's order which is a detailed and a well considered judgment where firstly the pleadings of the parties have been noted alongwith the documentary evidence filed and the statements made by the plaintiff P.W.1 and the defendant D.W.1 and D.W.2. Learned trial court while deciding the S.C.C. Suit was not bound to frame issues but could frame points for determination for convenience of arriving at a decision under Order XX Rule 4 of the C.P.C. The trial court could frame points of determination and it framed two effective and all comprehensive points of determination. Firstly, whether the notice sent by the landlady on 19.07.2011 was a valid and effective notice and the other point of determination was whether the tenants/ defendants have defaulted in payment of rent.

30. Learned trial court had considered the registration of family business in the name of Amar Industries for selling agriculture implements from the shop/ tenanted premises in the Trade Tax Department and the registration certificate issued which showed Sunil Kumar Mishra as Proprietor and Anup Kumar Mishra as the Manager of the said business. It referred to the notice having been sent and being duly served.

It also referred to the Money Orders being sent but being returned un-served by the Postal Department and has made observations that the defendants on being faced with the argument that the husband of the plaintiff had no concern at all with the tenanted premises, ought to have produced the Postal Department's Agent i.e. the Postman to show their bonafide of tendering the rent. Moreover, the trial court has also observed that even if such Money Order was refused, may be by the husband, it could not be said that the landlady had refused to accept such rent; when the landlady was judicially separated by the decree of the competent court dated 07.02.1989 from her husband Anil Kumar Singh. The trial court also observed that rent could have been deposited in Court even thereafter by the petitioners under Section 30 of the Act of 1972 which was not done. When the Suit was filed, the defendants failed to appear initially and when they did appear and filed vakalatnama of their counsel, they did not comply with the provisions of sub-section (4) of Section 20 and therefore no benefit could be given to them of the said Section. The petitioners thereafter filed a Revision which Revision was taken up by the Additional District Judge, Court No.06 Sitapur. The Revisional Court has also considered the dispute raised by the petitioners again and found on the basis of papers of the trial court and judgments of Hon'ble Supreme Court and of this Court that there was no legal infirmity in the findings arrived at by the trial court.

31. This Court has gone through the judgment rendered by the Revisional Court. This Court is sitting in limited jurisdiction and has only supervisory role to play.

32. This Court finds no glaring perversity in the appreciation of facts and evidence either by the Trial Court or by the Revisional Court. There was no denial of fair opportunity to the petitioners by the learned courts below. Moreover, there was no incorrect appreciation of law as alleged by the learned counsel for the petitioners.

33. Consequently, this petition is dismissed as devoid of merits.

34. No orders as to Costs.

35. Since the order of the trial court has been affirmed by this Court, petitioners shall give peaceful and vacant possession of the shop in question to the respondent no.1 within one month from today.

Order Date :- 23.5.2022

Rahul

[Justice Sangeeta Chandra]