Dharam Pal Singh vs Varij Kumar
2023 Latest Caselaw 2995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 8th December, 2022
 
Delivered on 30th January, 2023
 
Court No. - 37
 

 
Case :- CIVIL REVISION No. - 216 of 2008
 
Revisionist :- Dharam Pal Singh
 
Opposite Party :- Varij Kumar
 
Counsel for Revisionist :- Anil Sharma,G.C. Shukla
 
Counsel for Opposite Party :- R.K. Pandey
 

 
Hon'ble Ajit Kumar,J.

1. This revision petition is directed against the judgment and decree for recovery of arrears of and rent ejectment passed by the Judge, Small Causes on 15th May, 2008 in SCC Case No.- 1 of 2002.

2. In this case the fact can be drawn in a narrow compass like this that a rent agreement was executed initially between erstwhile owner of the rented premises, namely, Mr. Rajendra Kumar Garg and the present petitioner with the execution of the rent agreement on 12th November, 1982 for a period of five years.

3. This rent agreement was registered one and the rent agreed between the parties was Rs.400/- per month besides house tax and water tax. The rent agreement having expired on 31st October, 1987 yet another registered rent agreement/ lease deed got executed in respect of the premises in question on 3rd November, 1987 to be operative w.e.f. 1st November, 1987 and the agreed rent this time was fixed as Rs.600/- besides house tax @ 6.25% and water tax also @ 6.25% per month and to be paid 5th day of every month. The rent agreement this time also provided a clause that in the event of delayed payment of rent, the tenant will be liable to pay Rs.1 per day towards the interest and further the rent was to be increased by 10% every year. The rent deed also provided that white-wash and repair work in the shop was to be carried out by the tenant only. After the rent agreement was executed the original landlord Mr. Rajendra Kumar Garg died on 17th November, 1988 and was survived by the contesting respondent as the sole heir for the registered Will executed on 12th March, 1988. The tenant-petitioner started, therefore, paying rent to the contesting respondent. This lease agreement this time expired on 30th October, 1992 with a completion of five years period and no further agreement was executed. However, tenant did not vacate the premises but continue to pay him rent and occupied the premises in question.

4. There arose dispute regarding quantum of rent and payment thereof and termination of tenancy as after 1998 no further rent was paid. The contesting respondent landlord claimed to have issued several notices to the tenant and the last one is on 10th December, 2021. In the notice, the plaintiff-landlord acknowledged the last payment of rent dated 6th November, 1998. The defendant-petitioner denied service of notice issued prior to that.

5. The plaintiff set up a case that as per the rent agreement dated 31st October, 1992 the rent was to be increased @ 10% per annum and the tenant even paid the rent at increased rent and last payment of Rs. 2055/- was made on 1st October, 1998 against which receipt bearing No.- 847 was issued by the landlord. However, the landlord denied any such increase of rent due to the expiry of lease agreement and simply claimed that he had paid higher rent that he had agreed to pay from time to time on his own volition but there was no regular increase of rent as claimed by the plaintiff. He further claimed to have paid rent regularly and that he was not in default. He, however, claimed to have made deposit under Section 30 of the U.P. Act No.- 13 of 1972.

6. The plaintiff led evidence by filing receipts of payment made from time to time and last one being No.- 847 dated 1st October, 1998. The defendant on the contrary submitted before the trail court that the payment of Rs.2055/- that was claimed as rent, was in fact towards the expenses incurred in the whitewash and the maintenance of the shop and for that purpose he has got the copy of the cheque produced from the bank, upon back of which it was noted that "it was not for the rent purposes".

7. It was contended before the trial court by the present petitioner that since after the rent agreement had expired, he continued to occupy the premises and it was accepted by the landlord that his position was holding over within the meaning of Section 116 of Transfer of Property Act, 1882 and his tenancy is now to be treated on month to month basis.

8. The trial court after appreciating the evidence brought by the parties on record returned a finding of fact with effect that the rent of Rs.2055/- that was paid by cheque dated 6th November, 1998 was towards the rent only and whatever written on the back of the cheque was by a different colour ink than the colour of ink that was used by the petitioner while writing the cheque.

9. It was also held by the trial court that since the agreement itself recorded a condition that whitewash and repair work will be done by the tenant so there was no question of landlord doing the said thing so as to be paid the money for such purpose.

10. Further finding of fact was recorded by the trial court that defendant-petitioner did not give any reply in rebuttal of notice served upon him whereas during his cross-examination he has admitted to have received notice. It was held by the trial court that it was not a case of further enhance of rent with the passage of time as per the rent agreement, may be expired, the defendant-petitioner would have certainly replied to the notice questioning the enhanced rent claimed by the petitioner.

11. The court also disbelieved the bare denial by tenant that he did not receive notice as the notices were sent by the UPC post and therefore, in ordinary course of postal service notices would be deemed to have been delivered upon the noticee. It was held by the trial court that once notices have been shown to be issued and copy thereof has been filed with UPC, it was for the defendant petitioner this time to have led evidence in rebuttal of the same. The court further held that since it was admission on the part of the tenant himself that receipts was not immediately issued whenever the payment was made and at times the receipts were used to be signed by some other persons or the employees and some of them were signed by him, the statement made by the defendant, therefore, that he was not given the receipts against the payment dated 6th November, 1998 was not worth believed.

12. The Court in its ultimately conclusion arrived at a finding that the rent that was paid in hand to the tune of Rs.2,055/- was the last payment and tenant never paid any rent rent after 1998, and thus in view of the fact that U.P. Act No.- 13 of 1972 was not to apply and the petitioner did not remain a statutory tenant, his tenancy was liable to be terminated by issuance of notice. The manner in which enhancement of rent has taken place and rent has been paid from time to time, non-payment of rent since 1998 would not come to the rescue of the petitioner also. Thus, the court decreed the suit of the plaintiff respondent against the defendant petitioner.

13. Three points arises in this petition for consideration. (i) Whether the findings returned regarding effective service of notice by the trial Judge is bad; (ii) Whether the findings regarding enhanced rent is perverse; and (iii). Whether the petitioner is entitled to benefit of deposit made under Section 30 of the Act No.- 13 of 1972 to set off against arrears of rent that have accrued since 1998.

14. As far as the first point regarding service of notice is concerned, respondent-landlord brought on record UPC receipts and copy of the notice. It is not a case that envelop containing the notice had been received back undelivered. The trial court, therefore, proceeded to presume that the notice sent under postal certificate could have been delivered in ordinary course of postal service. There is simply denial of notice of the defendant petitioner.

15. In my considered view, the legal position stands in support of the findings returned by the trial court. The Full Bench of this Court in the case of Ganga Ram v. Smt. Phulwati, AIR 1970 All 446, vide paragraph 28 held thus:

"28. It is not the duty of the plaintiff to prove that the defendant, after having received notice, had actually read it and understood its contents. Similarly, where the registered envelope contains a correct address of the tenant and the addressee either cannot be met or refuses to take notice, there appears to be no reason why the notice should not be deemed to have been properly served on the addressees. In the case of Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102 it was held that if a letter properly directed containing notice to quit is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. In the absence of proof to the contrary. It will be presumed that the refusal had been made by the tenant to whom the registered letter was correctly addressed at the time when the letter could be expected to reach him in the ordinary course. With great respect, and for the reasons given by us, we do not find it possible to agree with the views expressed in the abovementioned cases decided by the Bombay, Madhya Bharat and Nagpur High Courts."

(emphasis added)

16. Further, in the case of Green View Radio Service v. Laxmibai Ramji and others, AIR 1990 SC 2156. It was said that once notice was sent by the plaintiffs' Advocate by registered post bearing correct address of the noticee then presumption shall be raised regarding service of notice. The Court held that bare denial of service of notice would not be sufficient and the noticee had to depose before the Court regarding circumstances in which notice can be said ot have not been delivered.

17. Relying upon the aforesaid judgment in the case of Rajendra v. Sanatan Dharam Intermediate College, 2008 (70) AIR 61, the court proceeded to hold that even the endorsement made on envelop ''not met' service of notice would be deemed sufficient. In the case of Gujarat Electricity Board and others v. Atmaram Sungomal Poshani, AIR 1989 (SC) 1433, the Court observed that in rebuttal to presumption regarding service of notice the noticee will have to demonstrate that the address given on the envelop was not correct one or the notice that contained the address was not correct one. The Court held that burden to rebut the presumption lies on the parties challenging the factum of service. There could be a question as in the present case that enhanced rent was never a part of agreement or understanding and, therefore, whether notice of the enhanced rent would not be sufficient and lawful notice but this question is also no more res integra in view of the Full Bench judgment of this Court in the case of Gokaran Singh and others v. 1st Additional District and Sessions Judge, Hardoi and others, 2000 SCFRC 193, wherein the notice was held not to be bad just because it demanded higher rent.

18. Coming to the facts of this case, on the above issue it has come to be recorded in the order of trial court that several notices were sent by the landlord to the tenant petitioner on 1st September, 2000, 1st October, 2000, 1st November, 2000, 1st December, 2000, 1st February, 2001, 1st March, 2001, 12th April, 2001, 8th June, 2001, 1st July, 2001, 1st August, 2001 and 1st September, 2001, which were filed along with receipts of postal certificates bearing Paper No.- 65A and 74A but the defendants simply denied to have received any such notice.

19. In my considered view that simple denial will not do the needful so far as the rebuttal of the presumption raised in favour of the landlord is concerned. Thus, it cannot be said that service of notice was not sufficient and findings returned by the trial court cannot be held bad.

20. Coming to the second point with regard to the enhancement in rent, I find, it has come to be admitted by the tenant petitioner that he had received notice of the landlord dated 10th December, 2001 regarding termination of tenancy and the last payment of enhanced rent as Rs.2055/- and yet he did not give any reply to the same. The court, therefore, rightly came to the conclusion that the rent of Rs.2055/- against the last agreed rent which expired on 31st October, 1992 was being paid by way of enhanced rent at the rate of 10% per annum. The tenant petitioner could not establish as to how he came to pay Rs.2055/- as against Rs.600/- which was agreed rent in the last agreement entered in the year 1987. The court thus had no other option but to accept the claim of the landlord respondent regarding enhanced rent in the absence of any express denial thereof by the tenant petitioner by giving reply to the said notice. This finding of fact has been returned on the basis of the evidence placed before the Court in the form of receipts and the cheque and, therefore, the finding cannot be held to be perverse.

21. The Court has recorded very clearly that on the back of the cheque the statement recorded that this was not towards the rent was in different colour ink and might be possible that in connivance with the bank officials this was got done by the tenant after cheque was encashed. The petitioner did not call for any hand writing expert to get it examined as to whether it was on endorsement made by the respondent landlord, and if it was done by the petitioner then the court had rightly disbelieved the same. It was an endorsement made with different colour ink, so the court rightly disbelieved the same.

22. Now, coming to the third point with regard to the claim of the petitioner that he would be treated in the capacity of a tenant with status of holding over. This principle of holding over month to month tenancy claim is being set up on the ground that the petitioner was regularly paying the rent under Section 30 of the Act No.- 13 of 1972. Once the findings of fact have come to be returned with regard to the non-applicability of Act No.- 13 of 1972 to the case and this finding has not been questioned by the petitioner himself, his month to month tenancy would automatically come to be end with non-payment of rent he can take benefit thereof.

23. A statutory deposit made under Section 30 of the Act No.- 13 of 1972 will not come to the aid of the petitioner in the circumstance when the Act does not apply to the case. No amount of deposit made under Section 30, therefore, would be treated to be rent paid to the tenant in view of the above legal position regarding non-applicability thereof to the present case.

24. In view of the above, this petition lacks merit and is, accordingly, dismissed.

Order Date :- 30.1.2023

Atmesh