Jnanamandal Limited vs Vinod Kumar Shukla (since deceased) Thr. Lrs

Leave granted.

This appeal challenges the order dated 05.07.2017 passed by the High Court of Judicature at Allahabad in S.C.C. Revision No.390 of 2016.

In respect of shop premises (Shop No.2 in Premises No.B-32/18-A and 18-B) at Mohalla Lanka, Varanasi, which were let out to the respondent-tenant sometime in 1986, proceedings seeking eviction of the tenant-respondent were initiated by the appellant submitting inter alia that the respondent-tenant was in default of payment of rent. Small Causes Court Suit No.12 of 2004 was thus filed in July 2004 and the matter was posted for first hearing on 13.08.2004, on which date the respondent deposited a sum of Rs.54000/- towards the rent that according to him was outstanding. It must be mentioned that the rent of the premises was Rs.400/- per month, which was later increased to Rs.450/- per month.

The matter was considered by the Additional District Judge, Varanasi, who dismissed the suit by his order dated 20.10.2011. However, in the revision petition preferred therefrom, the High Court remitted the matter for fresh consideration to the Trial Court.

The matter was thereafter considered by the Additional District Judge, Varanasi, as under:

"17. Thereafter, the previous presiding officer has disposal the point No.1, 2, 3, 4, 5 & 7 all together and given findings that defendant has proved his payment of questioned rent after notice and Plaintiff could not prove his suit. Plaintiff has failed to prove above points. He also given findings that defendant deposited Rs.54,000/- in Court, its tender is available, which was deposited through document No.17A as per U/s 20(4) of UP Act No.13/1972, he has not presented the detail that how much rent has been deposited in respect of how much rent, hence it is decided at last that defendant has deposited Rs.54,000/- through tender alongwith also Rs.1674/-interest at the rate of common interest rate. Hence is liable to receive the benefit of U/s 20(4) Act No.13/1972.

But Hon'ble Court has decided that actually the upper court has failed to calculate interest on rent because the upper court has not calculated the interest according to the principal decided in Rajbahadur Singh versus Distt. Fatehpur & Ors., 1998(2) ACR 416 & Kashinath versus Sushula Rastogi, 2003(2) ARC 347. After the order of Hon'ble High Court defendant has presented application for depositing pending rent and interest through application 42-C.

It has been found after considering above points that actually defendant has completely failed to calculate rent and interest on it and advocate fees, thus the respondent's defence will be cancelled. However rent and interest on it not paid on time, hence complainant's suit will be decreed. Defendant could not get the benefit of U/s 20(4) of Act No.13/1972.

It is clear from above examination that actually defendant has failed to deposit decided rent and interest on it to complainant, he made default in the payment of rent. Plaintiff is completely succeeded to prove that defendant failed to deposit entire rent with 9% interest and advocate fees and clerk fees, hence suit of the Plaintiff is liable to be decreed with cost against respondents."

The Additional District Judge, thus, by his judgment and order dated 04.10.2016 decreed the suit. He found that the respondent was in arrears of rent and was not entitled to any protection under the concerned provisions. The matter was carried further and the High Court by its judgment and order dated 05.07.2017, which is presently under appeal, again remanded the matter back to the Trial Court for fresh consideration on merits.

The relevant provision, namely, Section 20 of the Uttar Prdesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is as under:

"Section 20. Bar of suit for eviction of tenant except on specified grounds.-(1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:

Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution, proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant.

(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:

Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the Prescribed Authority under the Indian Soldiers (Litigation) Act, 1925 (Act No.IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year";

(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building;

(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;

(d) that the tenant has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use, or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;

(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;

(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right of re-entry or condoned the conduct of the tenant;

(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord and his employment has ceased.

(3) Omitted

(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:

Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant stage, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area."

In terms of the concerned provisions, if a suit for eviction of a tenant is filed on the ground that the tenant is in arrears, the tenant is still entitled to an opportunity to save himself from eviction but he must deposit the entire amount of rent and damages for use and occupation of the building together with interest thereon @ 9% per annum and the landlord's costs of the suit in respect thereof after deducting any amount already deposited on the first date of hearing. In case, such steps as contemplated under sub-Section (4) of Section 20 are undertaken by the tenant, he is relieved of an order of eviction.

In the present case, as found by the Trial Court, the entire amount was not paid which is evident from the fact that after remand, the additional amount was deposited through application Exh.42-C. In the circumstances, the conclusions drawn by the Additional District Judge while accepting the claim of the appellant and decreeing the suit for eviction were absolutely correct and there was no occasion for the High Court to have remanded the matter for fresh consideration.

We, therefore, allow this appeal, set-aside the view taken by the High Court and restore the order passed by the Trial Court.

At this stage, the learned counsel for the respondent requested that the tenant be given sufficient time to vacate the premises.

Accepting the request of the learned counsel for the respondent, we direct as under:

a) Subject to the respondent filing appropriate usual affidavit that he shall vacate the suit premises on or before 31.12.2020 and handover peaceful possession of the suit premises to the appellant-landlord, the decree for eviction shall not be executable;

b) Appropriate affidavit shall be filed within two weeks from today and must also include the averment that all the arrears up to December 2019 shall be cleared on or before 31.12.2019 along with all the costs and other payments and that the tenant-respondent shall pay to the appellant-landlord the rent for the premises from January 2020 till December 2020 @ Rs.5000/-(Rupees five thousand only). Such payment shall be made on or before the 10th of every month in advance.

In case, no undertaking is filed within two weeks from today, the decree for eviction passed by the Trial Court shall become executable forthwith.

The appeal stands allowed in aforesaid terms. No costs.