Ram Chandra Verma vs A.D.J Court No. 1 Hardoi And Ors
2022 Latest Caselaw 4393 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 
Case :- WRIT - A No. - 26034 of 2017
 
Petitioner :- Ram Chandra Verma
 
Respondent :- A.D.J Court No. 1 Hardoi And Ors
 
Counsel for Petitioner :- Uma Shankar Sahai
 
Counsel for Respondent :- Arun Kumar Gupta,Arun Kumar Pandey,Bajhul Quamar Siddiqui,Bhavana Gupta
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner Sri U.S. Sahai and Smt. Bhawna Gupta, learned counsel appearing for the respondent no.3, who is the daughter and legal heir of Late Mool Chand Gupta @ Murli Seth, the Respondent Landlord.

2. This petition has been filed by the petitioner challenging the order dated 23.09.2006 passed by the learned Civil Judge (Senior Division), Judge Small Causes Court Hardoi and the order dated 01.07.2017 passed by the Additional District Judge, Court no.1 Hardoi, in Revision rejecting the same.

3. It has been submitted by learned counsel for the petitioner that the plaintiff Mool Chand @ Murli Seth has filed a SCC Suit No.06 of 1995 against the petitioner stating that the petitioner was the tenant of a shop which was 40 ft wide and 10 ft. deep and also of a hall adjoining it which was bought by the plaintiff in his wife's name and was originally was originally in the form of a shop and godown covered by a tin shed. He got the same demolised and a new shop and hall constructed on the site which he had given out on rent to the tenant i.e. the petitioner herein by an agreement dated 12.04.1994 @ Rs.400/- per month. Since the construction of the shop and hall had been completed in February, 1994, the provisions of U.P. Act No.13 of 1972 did not apply. It was mentioned in the plaint that the tenant had failed to pay the rent for the period of two months with effect from 10.10.1994 to 11.12.1994 and Rs.800/- became due therefore the plaintiff served legal notice on the tenant on 19.12.1994 to tender such rent. The tenant avoided service of such notice dated 19.12.1994. Another notice dated 04.01.1995 was sent to the tenant which was served on him demanding for arrears of rent as aforesaid and terminating his tenancy on expiry of 30 days from the date of service of notice. The tenant sent a reply on 16.02.1995 denying the contents of the legal notice, but he also did not pay any rent due to the landlord nor did he vacate the shop and hall in question. At the time of filing of the Suit, the arrears of rent with effect from 12.10.1994 to 31.03.1995 were due. The tenant was also liable to pay damages for continued use and occupation of the tenanted premises @ Rs.500/- per month from the date of termination of the tenancy till disposal of the Suit. The plaint was filed in Apri, 1995.

4. The petitioner-tenant filed a written statement on 14.09.1995 where he contended that the shop in question was newly constructed and provisions of U.P. Act No.13 of 1972 applied and therefore the Suit for arrears of rent and eviction could not have been filed. It was also stated that there was no agreement dated 12.04.1994 between the landlord and the tenant as alleged. It was also stated that the petitioner had deposited all rent of the tenanted premises and there were no arrears due.

5. It has been argued by learned counsel for the petitioner tenant that on the day when the Suit was filed in April, 1995 the plaintiff Mool Chand was neither the owner nor landlord of the shop in dispute. He became owner after the death of his wife in November, 1995 on the basis of a Will made out by her in September, 1995 in his favour. As such the Suit was liable to be dismissed. The learned counsel for the petitioner tenant has also argued that no notice was served upon him in December 1994 and that when it was actually served, he sent reply dated 16.02.1995 denying the allegations of the landlord that two months' rent was due. The tenancy of the petitioner was illegally terminated by the notice dated 04.01.1995. The petitioner was an old tenant who had originally taken a shop covered by tin shed from the landlord @ Rs.200/- per month in 1991. Later on, when Mool Chand Gupta got constructed a new shop and a hall, he took the newly constructed shop on rent @ Rs.400 per month but not the hall.

6. It was argued that the petitioner had offered rent to Mool Chand Gupta through Money Order but he had refused to take the same therefore the petitioner had deposited the arrears of rent in Misc. Case No.01 of 1995 under Section 30 of the U.P. Act No.13 of 1972 in Court.

7. It has been argued that the plaintiff had earlier tried to forcefully get vacated the shop from the petitioner and the petitioner had filed a Suit for permanent injunction bearing Regular Suit no.434 of 1994 in the Court of Munsif East, Hardoi. An interim order was granted on 21.07.1995 by the trial court where the Suit was pending at the time of filing of the eviction suit.

8. It has been argued that learned trial court framed issues relating to whether the defendant was the tenant of the shop in question on the basis of agreement dated 12.04.1994 @ Rs.400/- per month; whether U.P. Act No.13 of 1972 was applicable to the premises; whether Rs.2240/- was due as arrears of rent on 31.03.1995 which the tenant had not deposited despite notice having been sent to him demanding such arrears; and whether the tenants' defence should be struck off for not complying with the provisions of Order XV Rule 5 C.P.C. by depositing rent in court in time. The Consequential issue was with regard to whether the plaintiff landlord was entitled to any relief was also claimed.

9. It has been argued by learned counsel for the petitioner that the trial court has not considered any of the issues framed by it in the right perspective. The landlord had failed to prove that the building in question was newly constructed and did not fall under U.P. Act No.13 of 1972. It was also argued that the trial court failed to appreciate that Mool Chand Gupta was not the owner and landlord of the tenanted premises and his wife Smt. Brij Kishori Devi was the owner and landlady. Learned trial court also failed to appreciate that the notice given by the husband of the landlady was an invalid notice terminating the tenancy. The trial court failed to appreciate that the petitioner was enjoying an old tenancy in the building in question since 1991 and therefore U.P. Act No.13 of 1972 was applicable and the Suit could be maintainable for arrears of rent only when four months or more of rent was due to the landlady, which was not the case when the notice was issued by the Mool Chand Gupta to him in January, 1995.

10. It has also been argued that the learned trial court failed to appreciate that it had earlier passed an order rejecting the application of the landlord under Order XV rule 5 C.P.C. and has given a finding that the provisions of Order XV Rule 5 C.P.C. had not been complied with by the tenant in the order impugned which is against the record of the case.

11. It has been argued by the learned counsel for the petitioner-tenant that the trial court failed to appreciate that the very basis for filing of the suit for eviction was the notice of termination of tenancy which was given by the husband of the owner of the shop, i.e., Mool Chand Gupta whose wife Smt. Brij Kishori Devi had made out a will only on 29.9.1995 and only on her death Mool Chand Gupta had become owner and the landlord of the shop in question. Since notice for termination of tenancy was invalid, no suit either under Section 106 of Transfer of Property Act or under U.P. Act 13 of 1972 could have been filed and entertained.

12. Learned counsel for the respondent-landlord Smt. Bhawna Gupta on the other hand has pointed out from the trial court's order that the learned trial court had considered all the evidences led by both the parties including documentary evidence and the oral evidence by way of statements of plaintiff's witnesses and defendant's witnesses and had come to a conclusion that Mool Chand Gupta had bought originally a shop and a godown in the name of his wife Smt. Brij Kishori Devi but such shop and godown were demolished. A new shop and a hall and other parts of building were constructed thereafter in the year 1993-94 for which initially application for sanction of map was moved by Mool Chand Gupta in his name before the Nagar Palika Parishad, Bilgram but later on his wife being the owner of the property on paper, the map was actually sanctioned in favour of Smt. Brij Kishori Devi.

13. The learned trial court had considered receipts filed by Mool Chand Gupta for purchase of cement and other construction material including hardware of 1994 which showed that after the map was sanctioned by the Nagar Palika Parishad, Bilgram, the construction was raised in February 1994.

14. The learned trial court also perused the counterfoils of the receipts issued by Mool Chand Gupta in favour of Ram Chandra Verma for deposit of rent of the year 1994-95. It also perused the copy of the plaint and a written statement filed in Regular Suit No.434/1994 [Ram Chandra Verma vs. Mool Chand Gupta] which the petitioner had filed against the landlord for permanent injunction treating Mool Chand Gupta to be his landlord.

15. The learned trial court also considered the plaint in miscellaneous case no.1/1995 where the petitioner had deposited the rent in court under Section 30 of the U.P. Act No.13/1972. It had carefully perused the notice given by the Advocate on behalf of the Mool Chand Gupta and the reply given to it by the petitioner where the petitioner has not disputed that Mool Chand Gupta had locus to send the notice for termination of tenancy and had accepted Mool Chand Gupta as his landlord.

16. It has been argued by Smt. Bhawna Gupta that even otherwise the ownership of the property in question may have been with the wife Smt. Brijesh Kishori Devi but the shop was taken on rent by the petitioner from Mool Chand Gupta and rent was payable to Mool Chand Gupta who had issued receipt thereof also to the petitioner. The landlord may be different from the owner as recognized by law and notice sent by the landlord for terminating tenancy, has therefore been treated to be valid by the learned trial court.

17. With respect to the argument raised by the learned counsel for the petitioner - tenant before this Court and also before the learned trial court and revisional court that the building was not covered under U.P. Act No.13/1972, the learned counsel for the respondent- landlord has pointed out from the trial court's order that it has considered the provisions of Section 2 and the Exemptions thereof carved out to the applicability of the Act by the Legislature. The learned trial court had found that the initial purchase was of a shop and a godown by Mool Chand Gupta which was demolished and a new construction was raised and on this new construction being made in 1994 the petitioner was inducted as a tenant. Such new construction be made after the cut off date of 26.4.1985 did not come within the purview of U.P. Act No.13/1972. The trial court having found the building / tenancynot being covered under U.P. Act No.13/1972 and having found the notice issued by Mool Chand Gupta the landlord as a valid notice demanding arrears of rent and determining the tenancy, found the suit maintainable by the landlord.

18. With regard to the other issues framed by the learned trial court as to whether the tenant had committed default in payment of rent to the landlord, the trial court had found on consideration of all evidence produced by the landlord and the tenant that the tenant could not produce documentary evidence or even prove otherwise that he had tried to tender rent to the landlord after receiving notice in January 1995 and after sending its reply on 16.02.1995. He may have deposited rent for the month of January and February in Court under Section 30 of U.P. Act No.13/1972. He could have continued to deposit such rent even thereafter only till the filing of the eviction suit before the SCC Court. After the eviction suit was filed it was the tenant's duty to have deposited arrears along with 9% interest and cost of suit on the first day of hearing and continue to deposit rent month to month before the learned trial court as claimed by the landlord even though he may not have admitted the such rent to be payable. The trial court, therefore, found the prayer as made in the eviction suit was liable to be granted and decreed the suit in favour of the landlord.

19. It has been argued that before the revisional court also the tenant had argued that Smt. Brij Kishori Devi was the landlord and not Mool Chand Gupta. However, the revisional court after reconsideration of evidence has found that there was no denial by the petitioner that he had been paying rent to Shri Mool Chand Gupta all along.

20. Learned counsel for the respondent-landlord has pointed out that the revisional court has considered the judgments cited by the petitioner-tenant before it and found that they were not applicable in the facts of the case. It has also considered the arguments raised regarding compliance of the Order 15 Rule 5 CPC and the object of the legislature in incorporating such provision. It has been observed by the revisional court that such provision had been added only for providing to the landlord succor during the pedency of the eviction suit so that tenant may not keep enjoying the property and the landlord may be kept out of the benefit derived therefrom only because suit was pending.

21. Having heard the rival submissions, this Court has considered the judgment rendered by the learned trial court and finds that the learned trial court had framed issues regarding rent agreement dated 12.4.1994 between Mool Chand Gupta and the defendant-tenant and the rate of rent being fixed @ Rs.400/- per month and whether till 31.3.1995 an amount of Rs.2240/- became due as arrears of rent and the tenant was defaulter in making payment thereof.

22. The trial court had also considered the applicability of U.P. Act No.13 of 1972 and found that the Nagar Palika Parishad, Bilgram had sanctioned the map for construction of the shop in question only on 20.02.1992, and construction material was bought by the landlord in year 1994. The learned trial court while holding the notice to be valid under Section 106 of Transfer of Property Act for arrears of rent as due in December 1994 and January, 1995 has found that even after service of notice and sending a reply thereto the tenant had made no attempt to tender rent to the landlord. At least no documentary evidence could be filed by the tenant to show that he had tried to tender rent through money order which the landlord had refused.

23. The learned trial court found on the basis of evidence filed by both the parties that rent as payable was indeed Rs.400/- per month and it had not been paid to the landlord since October, 1994 up to 31.3.1995. However, even while considering all defence of the defendant ? tenant it made an observation with regard to non compliance of Orders 15 Rule 5 CPC saying that the defendant's defence ought to be struck off for non-compliance. This Court finds that despite making such observations the tenant's evidence including his statement on oath and that of his witnesses have been considered and no fault can be found in the procedure adopted by the trial court.

24. With regard to the argument made by the learned counsel for the petitioner that initially when the application was filed by the respondent-landlord for striking off defence under Order 15 Rule 5, the trial court had observed on 01.02.2001 that there was due compliance of Order 15 Rule 5 CPC by the tenant; this Court has perused the order dated 01.02.2001. It is only an interlocutory order. It has not considered the entire provisions of Order 15 Rule 5 which provide for deposit of arrears of rent plus 9% interest due thereon and also cost of suit including Advocate's fee in Court on first day of hearing and also for the defendant-tenant to continue to deposit rent as due month to month in Court during pendency of the eviction suit. The trial court in its order dated 01.02.2001 has not given any specific finding with regard to deposit of 9% interest and cost of suit as well in Court by the tenant. Merely because in its order dated 01.02.2001 the trial court had rejected the application for striking off defence and thereafter in the judgment rendered by it on 23.9.2006, it had found non-compliance of Order 15 Rule 5 CPC, would not come to the rescue of the petitioner at this stage as his case has been considered on merits both by the learned trial court and by the revisional court.

25. This Court finds no good ground to show interference in the limited jurisdiction it exercises under Article 227 of the Constitution.

26. The petition stands dismissed.

27. Since the shop in question is a commercial premises, the petitioner is given four months time from today to vacate the said premises and shift his clinic/ medical store and give the vacant and peaceful possession to the respondent-landlord.

28. Time as granted by this Court shall only be available to the petitioner if he tenders all rent that is due to the respondent- landlord as directed by the learned trial court and with 9% interest thereon within one month from today.

Order Date :- 27.5.2022

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