Surendra Pal Vishwakarma vs Additional District Judge, Court ...
2022 Latest Caselaw 4029 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
Court No. - 5
 
Case :- WRIT - A No. - 3080 of 2022
 
Petitioner :- Surendra Pal Vishwakarma
 
Respondent :- Additional District Judge, Court No. 4 ,Sitapur And Others
 
Counsel for Petitioner :- Shiv Shankar Singh,Madan Gopal Tripathi
 
Counsel for Respondent :- Abhishek Dhaon,Sankalp Mehrotra
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner and Sri Abhishek Dhaon, for the respondent nos.3 and 4.

2. This petition has been filed praying for quashing of the order dated 23.02.2021 passed by the Judge, Small Causes Court, Sitapur and also the order dated 12.04.2022 passed by the Additional District Judge, Court No.04, Sitapur, dismissing the Revision No.04 of 2021: Surendra Pal Vishwakarma Vs. Smt. Sudharani Sinha and another.

3. It has been argued by the learned counsel for the petitioner that Late Indra pal had taken two shops and one room on rent from the predecessor-in-interest of the respondent nos. 3 & 4 Shri Krishna Kumar Sinha at the rate of Rs.350/- per month inclusive of all taxes. One was taken initially on rent on 01.04.1985. Later on on 11.09.1989 another shop adjacent to the tenanted premises was taken on rent at the rate of Rs.350/- per month i.e. total of Rs.650/- per month was given by the father of the petitioner to the predecessor-in-interest of the respondent nos. 3 & 4 for two shops and one room situated in Mohalla Sukkhumal in the city of Sitapur. The rent continued to be paid regularly every month but no receipt was given either by the predecessor-in-interest of the respondent nos.3 & 4 or by the respondent nos. 3 & 4 after the death of Shri Krishna Kumar Sinha.

4. On 22.08.2016, notice was sent to the petitioner by the respondent Nos. 3 & 4 alleging therein that the two shops and one room were taken on rent by him at the rate of Rs.1300/- per month with 10% due as water charges and such rent had not been given with effect from April, 2013 to July, 2016 i.e. for the period of 39 months and that such arrears of rent be given to the respondent-landlord within one month. Also the tenancy was determined after the expiry of one month from the date of receipt of notice. The petitioner on receiving such notice sent his reply on 31.08.2016 denying that the two shops and one room were rented out at the rate of Rs.1300/- per month and the additional water charges were also payable. He stated that rent at the rate of Rs.650/- per month inclusive of all charges was payable for the two shops and one room and that all rent had been paid up to June, 2016. Rent for the month of July and August 2016 had been tendered through Money Order. On oral refusal of the respondent-landlord to accept the same, the Money Orders were returned to the petitioner.

5. The respondent-landlord filed SCC Suit for arrears of rent and for eviction on 25.10.2016 registered as SCC Suit No. 14 of 2016. As soon as the petitioner came to know of filing of the said Suit, he filed his written statement and also tendered arrears of rent before the trial court and continued to pay the rent month to month in Court by depositing Rs.715/- i.e. Rs.650/- as rent for the two shops and one room and 10% of the amount as water charges. Learned trial court did not take into account the tendering of rent in court by the petitioner and has held the petitioner to be a defaulter in payment of arrears of rent for the period of 39 months as alleged in the SCC Suit by the plaintiff. It has directed payment of Rs.715/- per month w.e.f. 36 months before the date of filing of the suit i.e. total amount of Rs.25,740/- to the respondent-landlord and a payment of damages at the rate of Rs.500/- per month for continued occupation of the tenanted premises from the date of termination of tenancy till actual delivery of possession which was to be given to the respondent-landlord within 30 days of passing of the order dated 23.02.2021, besides making payment of cost of suit to the plaintiff.

6. The petitioner being aggrieved against such order filed a Revision which was registered as Civil Revision No. 04 of 2021. The Revisional Court ignored the grounds taken by the petitioner in challenging the order dated 23.02.2021 and has arbitrarily rejected the Revision by his order dated 12.04.2022.

7. Learned counsel for the petitioner has argued that under Section 20(2), the Suit for eviction against the tenant can be filed in case the tenant is in default of payment of rent for a period of four months or more. In case the respondents-landlords were aggrieved by the non-payment of rent for a period of four months or more, they could have filed the suit just after the lapse of four months from the date the arrears taking due, but they did not file such Suit and filed it after 39 months claiming huge amount as arrears of rent. The learned Courts below did not consider the fact that the very same respondent-landlord has filed a Suit for arrears of rent and for eviction, namely, SCC Suit No. 12 of 2016 against one other tenant by the name of Mohammed Irfan, as the said Suit was decided on 02.11.2019 in favour of the tenant and against the landlord.

8. Learned counsel for the respondent-landlord on the other hand has pointed out from the Trial Court's order that the trial court has recorded the contention of the plaintiffs and the defendant faithfully in its order as also the documentary evidence filed by both the parties. The trial court has after noting the pleadings has also considered the statements of witnesses produced by the plaintiffs and that of the defendant. It has framed points for determination in its order which go to the root of the controversy as to whether the notice that was sent to the tenant was valid, and as to whether the building in question was governed by U.P. Act No. 13 of 1972, and as to whether the tenant was at default in payment of rent.

9. With regard to legal notice sent to the defendant through registered post on 22.08.2016, the trial court has found that it was served upon the defendant and the defendant had also replied to the same but he had denied the contents of the legal notice and the allegation of all default in payment of rent for 39 months. He had also denied the rate of rent and claimed that only Rs.650/- per month was agreed to be paid as rent which was paid from June, 2013 till June, 2016. It was alleged by the tenant that for July and August 2016, the defendant had offered rent through Money Orders but for substantiating his claim that he had indeed sent the Money Orders, no documentary evidence was placed. The tenant had also referred to a rent agreement signed by the erstwhile landlord Krishna Kumar Sinha but only photocopy of such rent agreement was filed and it was seriously disputed by the respondent-landlord. The trial court has rejected such alleged rent agreement entered into between Shri Krishna Kumar Sinha and the father of the petitioner as it was not proved under Section 65 of the Evidence Act by the tenant. The onus to prove that by way of rent agreement entered into in 1984 and in 1989, the rent of the one shop and one room initially was fixed only at Rs.300/- and Rs.350/- was fixed for the second shop taken on rent later on; lay upon the defendant and he had failed to discharge such onus before the trial court.

10. The trial court has also considered the arguments raised by the defendant that the notice was illegal because the boundaries of the tenanted premises has been wrongly mentioned in the said notice. The trial court observed on the basis of judgements of this court that mere mention of indeterminate boundaries would not render the legal notice invalid where the tenant had accepted the relationship of landlord and tenant and had also accepted the contents of notice in so far as allegation of arrears of rent being due were mentioned therein, though there was a dispute regarding as to how many months' rent was due and at which rate such rent was due.

11. The learned counsel for the Respondent has argued that learned trial court has taken into account the contention raised by the defendant that he had paid rent in Court after receipt of notice of the said suit but has found that the tenant had deposited in Court only Rs.3500/- initially and then Rs.715/- at various dates during the pendency of the Suit, whereas even if his own contention is accepted that rent was payable at the rate of Rs.650/- per month, along with water charges at 10% of the amount, then the arrears of 39 months as alleged would be more than Rs.28,600/-. The tenant had not deposited Rs.28,600/- at any point of time in the court. Also the tenant had not deposited 9% interest and cost of Suit as is required to be deposited under law.

12. The trial court on the basis of evidence led by both the parties and on the basis of statement of the defendant himself, had found that he had no documentary evidence to show that the rent of only Rs.650/- was paid by him each and every month it fell due to the respondents-landlord. Consequently, the trial court has allowed the SCC Suit with the modification that instead of giving rent at the rate of Rs.1300/- per month for 39 months, rent at the rate of Rs.715/- per month for a period of 36 months alone which was found due upon the defendant had to be given. A direction for vacation of the tenanted premises within one month from the date of the order was also issued.

13. Learned counsel for the respondent-landlord has also pointed out from the Revisional Court's judgement that the Revisional Court has considered the argument again regarding wrong boundaries being shown in the legal notice sent to the defendant by the Advocate of the plaintiff-landlord but it found from the statement made by the defendant-tenant before the trial court that there was an admission regarding taking of rent of two shops and one room by the father of the tenant which tenancy devolved upon the defendant tenant. Regarding rate of rent also, the Revisional Court has considered the statement made by the defendant-tenant before the trial court that although he had been depositing rent at the rate of Rs.650/- per month which included water tax, no documentary evidence by way of availability of rent receipts was filed by him.

14. This Court having heard the rival submissions has gone through the orders impugned.

15. The SCC suit was filed with the allegation of arrears of rent being due for more than three years by the respondent-landlord. The defendant-tenant had claimed that he had paid such rent but he could not produce any documentary evidence in support of his case.

16. Learned counsel for the defendant-tenant has argued before this Court that there was sufficient compliance of sub-Section (4) of Section 20 of U.P. Act No.13 of 1972 in as much as the defendant had deposited Rs.3500/- in Court in SCC Suit No.14 of 2016 by way of tender on 01.09.2017, and thereafter Rs.715/- on 01.02.2018, 03.01.2019, 01.01.2020, 02.01.2021 and 30.06.2021 and copies of such Tenders deposited in court have been collectively filed as annexure-7 to the petition and the learned trial court has not considered such deposit of rent for grant of benefit under sub-clause (4) of Section 20 of the Act of 1972.

17. This Court has considered the argument and finds that the trial court has specifically mentioned that if the rate of rent even if the statement of defendant-tenant was accepted was Rs.650/- per month with water charges i.e. Rs.715/- per month and the arrears as claimed by the plaintiffs were for 39 months which would amount to total of Rs.28,600/-. The defendant-tenant had not deposited such amount in court.

18. The Supreme Court in Bal Gopal Maheshwari and others Vs. Sanjeev Kumar Gupta, 2013 (6) AWC 5823 (SC), has considered the scope of application under Order XV Rule 5 C.P.C. and Section 20 (2)(a), in a Suit for eviction on default of payment of arrears of rent for four months or more by the tenant. In the said case the appellant had filed the Suit for eviction of the respondent-tenant from the Suit premises on grounds of arrears of rent and default. The Respondent-Tenant did not file written statement after the receipt of notice within the specified time. After a long delay he filed the same and appellants filed an application for striking off the defence on the ground that the respondent had failed to deposit the rent and damages due and cost of the Suit along with nine percent interest on the first day of hearing and had also failed to deposit water tax and house tax. The trial court allowed the application of the appellant-plaintiffs and struck off the defence of the respondents. The Respondent- Tenant filed the Revision. Such Revision was dismissed. The Respondent-Tenant thereafter filed a petition under Article 227 of the Constitution. The High Court observed that the provisions of Order XV and Rule 5 are mandatory in nature but since the Supreme Court has in several cases held that since the Court has jurisdiction and discretion to accept the written statement even after expiry of 90 days from the date of service of summons on the payment of heavy cost, the same principle be applied as applicable under Order VIII Rule 1 C.P.C. to the cases under Order XV Rule 5 C.P.C. The High Court therefore allowed the petition and directed the petitioner therein to pay the cost of Rs.10,000/- and that his written statement be taken on record. The appellant-landlord approached the Supreme Court saying that it was not open for the High Court in exercise of its jurisdiction under Article 227 to set aside concurrent finding of two Courts below in favour of stubborn and defaulter tenant.

19. The Supreme Court observed that both the trial court and the Revisional Court had noticed several defaults committed by the respondent-tenant in depositing monthly rent in their orders. Under Order XV Rule 5 sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the Suit, the entire amount to be due together with the interest thereon @ 9% per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the Suit the monthly amount due within a week from its accrual. In the event of any default in making any deposit, Court may consider the representation, if any, made by the defendant for example, objections to the application for striking off the defence moved by the plaintiff landlord, and pass appropriate orders with regard to whether the defence should or should not be struck off.

20. The Supreme Court observed that no doubt the trial court was given a discretion as the word "may" in sub-Rule (1), merely vested the power in the Court to strike off the defence. It was not obliged to do so in every case of default, but at the same time in Smt. Satya Kumar Kamthan Vs. Noor Ahmed and others, 1992 (2) ARC 82 (SC), the Supreme Court referring to its own judgment in Bimal Chand Jain Vs. Sri Gopal Agarwal, 1981 (3) SCC 486 which held that if the tenant is found to have indeed committed a default in payment of rent, it will always be open for the trial court to strike off the defence.

21. The Supreme Court in the case of Bal Gopal Maheshwari and others (supra) has held that in some cases, the Supreme Court has no doubt noticed the discretionary power of the trial court in the matter of striking off the defence under Order XV Rule 5 C.P.C. but it has held on facts of those particular cases such refusal by the trial court was justified. The Court observed that in the case at hand i.e. Bal Gopal Maheshwari (supra), the trial court and the Revisional Court had both given the current findings of fact with regard to default committed by the respondent-tenant. Such orders could not be set to be perverse nor could it be said that courts below have exceeded or failed to exercise their jurisdiction. The power to strike off the written statement under Order XV Rule 5 C.P.C. was exercised by the lower courts after going through the facts of the case and the High Court had failed to give any ground while exercising its inherent power under Article 227 of the Constitution to set aside such orders. It was not open for the High Court to sit in appeal under Article 227 of the Constitution of India and ignore such findings of fact and to accept the written statement without any ground whatsoever.

22. This Court finds that sub-Section (4) of Section 20 gives an opportunity to a tenant to deposit all arrears of rent on the first date of hearing along with 9% interest thereon and cost of Suit and get the Suit for arrears of rent and for eviction dismissed summarily. Order XV Rule 5 C.P.C. only enables the trial court to strike off the defence. Both provisions of law operate in two different fields. In this case the trial court did not exercise its power under Order XV Rule 5 C.P.C. It considered the argument regarding grant of benefit under sub-Section (4) of Section 20 but did not give the benefit on grounds that the Act of 1972 was inapplicable in the facts of the case as the tenancy admittedly was of 1984.

23. This Court therefore has examined the arguments raised by the learned counsel for the petitioner regarding satisfaction of the condition given under sub-Section (4) of Section 20 of the Act of 1972 on the basis of documentary evidence i.e. annexure-7 to this petition. It finds from a perusal of such copies of tenders that have been filed in this petition that the petitioner did not satisfy the condition to deposit of rent along with 9% interest and cost of Suit which includes the counsel fee on the first day of hearing in S.C.C. Suit No.14 of 2016. Therefore, this Court is of the considered opinion that no benefit can be granted as sought by the counsel for the petitioner under sub-Clause (4) of Section 20 of the Act of 1972 to the petitioner.

24. This Court has also carefully gone through the orders impugned and finds that trial court has considered the defence set up by the defendant-tenant in detail and has found that indeed more than three years of arrears of rent were due at the time of filing of the S.C.C. Suit No. 14 of 2016 and that the tenant had failed to prove his bonafide by even depositing the rent in Court.

25. There being no error apparent in the orders impugned in so far as the consideration of documentary and oral evidence produced before the learned courts below concerned, this Court sitting in limited jurisdiction it exercises under Article 227 of the Constitution finds no good ground to show interference.

26. Consequently, the petition is dismissed.

27. Since the order of the trial court is affirmed, the petitioner shall give peaceful and vacant possession of two shops in question along with room adjacent i.e. tenanted premises to the respondent nos.3 and 4 within one month from the date a copy of this order is produced and also pay the arrears of rent along with damages as directed by the learned trial court in its order dated 23.02.2021.

Order Date :- 25.5.2022

Rahul