Allahabad High Court
Sarju Prasad Gupta vs Devi Deen on 12 November, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:177481
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 2330 of 2018
Petitioner :- Sarju Prasad Gupta
Respondent :- Devi Deen
Counsel for Petitioner :- Kamta Prasad,Manish Kumar Nigam,Shivendra Nath Singh
Counsel for Respondent :- Dinesh Kumar Gupta
Hon'ble Ajit Kumar,J.
1. Heard Mr. S.N. Singh, learned counsel for the petitioner and Mr. Ram Kishore Gupta, learned counsel appearing on behalf of respondents.
2. By means of this petition filed under Article 227 of the Constitution, petitioner has questioned the order passed by Judge, Small Cause, Hamirpur rejecting the suit for recovery of arrears of rent and eviction of the tenant-respondent dated 13th April, 2009.
3. The main argument advanced by learned counsel for the petitioner for assailing the findings returned by the trial court affirmed in revision is that the tenant respondent was in arrears of payment of rent ever since 1991 when the petitioner came to purchase the house from the original owner of the property. Thus, having stepped into shows of landlord petitioner issued notice to the respondent, who failed to respond. Thereafter he sent another notice on 17th August, 2002 by registered post asking for rent that had remained unreplied and even rent was not paid. This notice when was not responded to, he issued another notice on 31.12.2002 through courier, which came to be served upon the tenant-respondent, and when no rent was paid, petitioner came to institute small causes suit for recovery of arrears of rent and ejectment. The tenant respondent appeared and filed his written statement disputing the claim of landlord-petitioner but the at the same time made deposit of Rs. 8,000/-. This deposit was claimed to have been made under Section 20 (4) of U.P. Act No. 13 of 1972. It is argued that Judge, Small Causes returned a perverse finding of fact as to the deposit made by the tenant respondent under Section 20 (4) of U.P. Act No. 13 of 1972 to non-suit the applicant-petitioner. In this regard he has taken the Court to the finding part of the relevant issue nos. 2, 3 and 4, which relate to each other regarding payment of arrears of rent and deposit made under Section 20 (4) of U.P. Act No. 13 of 1972.
4. Per contra, it is argued by learned counsel for respondent that the findings of fact returned by the trial court affirmed in revision are cogent findings of fact upon relevant material, inasmuch as, the petitioner having denied the very application of U.P. Act No. 13 of 1972 to the tenanted premises, did not accept the legal aspect that deposit made under Section 20 (4) of U.P. Act No. 13 of 1972 amounted to sufficient deposit. He submits that the findings returned regarding deposit are based upon the second notice, which was for the arrears of rent and that legally the second notice would certainly be a result in waiver of earlier notice. He submits that there is no manifest error of law or facts, nor there is any such error apparent on the face of record, which may warrant interference by this Court under its supervisory and superintending jurisdiction under Article 227 of the Constitution.
5. Having heard the submissions of learned counsel for the respective parties and having perused the record, the only aspect that is required to be adjudicated, I find is, as to whether there was any deposit made under Section 20 (4) of U.P. Act No. 13 of 1972 and if made that was sufficient enough to non-suit the petitioner in a suit for ejectment in view of legal affect of Section 20 (4) of U.P. Act No. 13 of 1972. There were four points framed for determination by the trial court. First point was in respect of application of Act No. 13 of 1972. This plea taken by landlord that Act No. 13 of 1972 did not apply but the finding has been returned that provisions of Act No. 13 of 1972 did apply. Nothing has been argued before me to demonstrate that this finding in any manner is perverse or that the Court had illegally interpreted the provisions of law or that any cogent material had been overlooked.
6. In above view of the matter, therefore, the Court does not find the findings returned on the issue regarding applicability of Act No. 13 of 1972 to be misplaced or perverse.
7. Now on the face of this above finding which makes Act No. 13 of 1972 applicable, I proceed to examine the findings returned on issue nos. 2, 3 and 4 on the point of non payment of rent and arrears and consequential accrual of arrears for which there was a liability upon the tenant to make good the default. The Court returned a finding to the effect that landlord himself has not been able to disclose as to how such arrears had accrued and what was the rent fixed. The entire statement and relevant cross examination of landlord has been produced in the order itself which discloses sufficiently that the landlord himself was not sure and in such event, if the landlord was not sure about rate of rent and consequential approval, in my considered view the Court was justified in accepting the deposit made under Section 20 (4) of U.P. Act No. 13 of 1972 at the instance of tenant respondent as per his own admission. The liability to deposit rent is liability to deposit admitted rent in the absence of any agreed arrear of rent. Normally unless and until it comes to be established that there was a relationship between tenant and landlord there was also a established rate of rent which had been agreed between the parties. The statement that has been recorded more especially the cross examination part of the landlord makes it absolutely clear that landlord was not sure either about the rate of rent or consequential arrears of rent. He pleaded in his cross examination that he understood the rent to be Rs. 100/- and this understanding of rent to be Rs. 100/- is based upon what material was not disclosed. Thus, the findings returned on the question of deposit made under Section 20 (4) of U.P. Act No. 13 of 1972 cannot be held to be perverse one. During the discussion of this issue, the landlord's statement has also been recorded to the effect that since there was no applicability of Act No. 13 of 1972 the tenant was liable to be evicted. Thus, it is clear that the landlord was pressing more upon the assertion that there was no application of Act No. 13 of 1972. The first issue had already decided as I discussed above, against the landlord. This finding has come to be affirmed by the Court sitting in appeal. Therefore, now no argument can be permitted to be raised in his behalf before this Court that once the notice had been served under Section 106 of the Tenancy Act, the tenancy stands determined and in view of non applicability of Act No. 13 of 1972 the tenant was liable to eviction.
8. In view of the above, I do not find any merit in the present petition. The petition fails and is, accordingly, dismissed.
9. However, it is clarified that dismissal of this petition or the order and judgment of Prescribed Authority/Judge, Small Causes as well as the Court sitting in appeal, will not come in the way of petitioner to get the benefit of tenant not paying the rent or not agreeing to written agreement for tenancy and resultant claim for eviction under the new Act, namely, the Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021, if, of course petitioner invites tenant to enter into a written agreement.
Order Date :- 12.11.2024
Shiraz
