Aditya Bhushan vs Sunil Kumar Garg

Rajes Kumar,J.

Heard Sri Rajesh Gupta, learned counsel for the applicant and Sri Yatindra, learned counsel appearing on behalf of the respondent.

The plaintiffrespondent filed a S.C.C. Suit No. 11 of 2007 against the applicanttenant for arrears of rent and eviction. Prior to the filing of the suit a notice under Section 106 of the Transfer of Property Act was given to the applicant, which, according to the finding of the court below, has been duly served. The suit was filed on the ground that the rent of the premises in dispute was Rs. 3,500/ per month, which was more than Rs. 2,000/ and, therefore, the provision of U.P. Act No. 13 of 1972 was not applicable and on the termination of tenancy the tenant is liable to evict the property in dispute. Sri Sunil Kumar Garg, landlord, was also crossexamined.

On 27.2.2008 the court below has decreed the suit and directed to vacate the premises in question and to deliver physical possession thereof. A further direction has been issued to pay a sum of Rs. 26,566/ as arrears of rent and to pay a sum of Rs. 3,500/ per month and electricity charges to the plaintiff for pendentelite and mense profit till the house is vacated by the defendant. The said order is impugned in the present revision.

Learned counsel for the applicant submitted that in the statement Sunil Kumar Garg has stated that he intended to increase the rent from Rs. 1,200/ to Rs. 2,000/ which has not been accepted by the defendant. This admission in the crossexamination dated 27.2.2008 establishes that the rent of the premises was Rs. 1,200/ and not Rs. 3,500/. He further submitted that in the plaint there was no reference of any rent deed/agreement and, therefore, such agreement cannot be relied upon. He submitted that the admission is the best evidence and, therefore, the impugned order is bad in law. He further submitted that notice under Section 106 of the Transfer of Property Act has not been proved. Mere service of notice does not amount to proving of the notice.

Sri Yatindra, learned counsel for the respondent, submitted that the statement of Sunil Kumar Garg dated 27.2.2008 is to be read as a whole and not in peace meal. He submitted that in the very beginning of the statement he stated that the premises has been given on a rent of Rs. 3,500/ per month, apart from electricity and maintenance charges. He also admitted that an agreement has been executed between the parties and the same has been signed by one witness before the plaintiff and the signature of other witness has been obtained by the defendant. Thereafter the agreement has been got notarised. He admitted that upto July, 2007 the rent has been received and in the month of August, 2006 only part payment of Rs. 1,200/ has been received. Therefore if in the statement, at one place, it is mentioned that he wanted to increase the rent from Rs. 1,200/ to Rs. 2,000/, it cannot be said that he admitted that the rent was Rs. 1,200/ per month. He submitted that the said figure might have been wrongly mentioned. He further submitted that after January, 2007 the rent has not been paid. In respect of the notice he submitted that the notice has properly been served which has not been disputed and no case has been made out that the notice was not a legal notice and, therefore, it is not open to the petitioner to challenge the validity of the notice on the ground that the notice has not been proved. He submitted that the finding of the court below is finding of fact that the rent was Rs. 3,500/ per month which cannot be interfered with.

Having heard learned counsel for the parties, I have perused the impugned order and the statement of Sunil Kumar Garg dated 27.2.2008 on which much reliance has been placed. I do not find any error in the impugned order. It is settled principle of law that the statement should be read as a whole and not in peace meal. If the statement, as a whole, is read, it is apparent that at the very beginning Sunil Kumar Garg has stated that the premises in dispute has been given on rent of Rs. 3,500/ per month, apart from electricity and maintenance charges. He has admitted that at the time of letting out the premises in dispute an agreement has been executed in which one of the witnesses has signed before the defendant and the signature of other witness has been obtained by the defendant. In the second part also he admitted that he has not filed any rent receipt on record to prove the rent being Rs. 3,500/ per month. It is true that at one stage he stated that he has asked for the increase of rent from Rs. 1,200/ to Rs. 2,000/ per month, but this cannot be treated as admission of the rent at the rate of Rs. 1,200/ per month. The earlier part of the statement that the house was given on rent of Rs. 3,500/ per month cannot be denied. The agreement has been filed as an evidence, which is part of the record. The defendant has no where denied either the signature on the said agreement nor has disputed the existence of such agreement.

In view of the above, I do not see any error in the conclusion arrived at by the court below that the rent was Rs. 3,500/ per month. So far as the argument relating to the notice under Section 106 of the Transfer of Property Act is concerned, the court below has recorded a finding that the notice has been properly served. There is no dispute in this regard. It appears that at no stage the validity of the notice has been challenged. Mere raising submission that the notice must have been proved is not sufficient to invalidate the notice.

In view of the above, I do not find any merit in the revision. The revision fails and is dismissed. However, on the request of learned counsel for the applicant to grant some time to vacate the premises, three months'' time is granted to the applicant to vacate the premises and to pay the entire arrears.