Kundan Lal (since deceased) vs IXth Additional District Judge,Allahabad & Ors.

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

This petition under Article 226 of the Constitution has been filed by the landlord praying for quashing of the order dated 23 91999 passed by the IXth Additional District Judge, Allahabad and the order dated 2721998 passed by the Judge Small Cause Court, Allahabad which have been appended as Annexures 1 and 2 respectively to the writ petition.

By the order dated 2391999 the IXth Additional District Judge dismissed the revision filed by the petitioner against the order of the Judge Small Cause Court dated 2721998 in S.C.C. Suit No. 253/1987 dismissing the suit filed by the petitioner for rent and ejectment of the respondent.

S.C.C. Suit No. 253/1987 was filed by the petitionerlandlord against the respondenttenant Sri Lalta Prasad for his ejectment from the disputed house No. 16, Sarai Khuldabad, Allahabad and also for recovery of Rs. 540 from him as arrears of rent. The house in dispute earlier belonged to one Sri Harish Chandra Sahu and others and was purchased by the petitioner subsequently also with rights to recover the rent due upto that date. At the time the house in dispute was purchased by the petitioner arrears of rent of about two years was also due on the tenant.

Before filing the aforesaid suit the petitioner served a notice dated 19121985 on the respondent terminating his tenancy, but neither the arrears of rent was paid by Sri Lalta Prasad nor he vacated the house in dispute.

The suit was contested by Sri Lalta Prasad by filing his written statement denying the title of the petitioner as landlord in paragraph 17 of the written statement as under :

�(17) That the defendant in spite of the repeated requests did not furnish any proof of his ownership with ulterior motive nor the previous landlord of the building ever intimated to the defendant about the sale of the building.�

The petitionerlandlord then filed an application for amendment of the plaint adding the plea of denial of title by respondent No. 3, the tenant, in his written statement.

The respondenttenant filed additional written statement explaining the denial of title on the ground that he had made enquiry from the registry office but could not come to know of the title; that he had also requested the landlord to produce title deed which was not produced, hence he had in the circumstances denied the title of the petitioner in the written statement but now he admits him as his landlord.

The trial Court framed two issues, first relating to non payment of rent for two years by the defendantrespondent and the second with regard to denial of title.

It appears that the petitioner had also in his plaint as well as in his evidence taken the ground that the respondenttenant had acquired several houses in Allahabad city itself including House No. 73 in Sarai Khuldabad consisting of 8 rooms with all amenities; House No. 16 in Sarai Khuldabad; House No. 153 in Bhusauli Tola; House No. 139 in Khuldabad; House Nos. 328 and 329 in Transport Nagar and House No. 3109 in Kala Danda, Himmatganj (purchased by the respondenttenant in the year 2001).

The Judge Small Cause Court vide impugned order dated 2721998 dismissed the suit holding that respondent No. 3 is entitled to benefit of Section 20 (4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The plea of the respondenttenant regarding denial of title also was not accepted.

Aggrieved by the judgment and order of the trial Court dismissing the suit of the petitioner, he filed Revision No. 315/1998, Kundal Lal v. Lalta Prasad, which was also dismissed by the revisional Court vide impugned judgment and order dated 2391999 on both the questions, i.e., benefit of Section 20 (4) of the Act and denial of title.

The contention of the learned Counsel for the petitioner landlord is that the respondenttenant had though initially denied the title of the petitioner as landlord but later on in order to save his skin from eviction filed additional written statement admitting the petitioner as his landlord. He thereafter also filed an application for amendment in his written statement accordingly. The application was rejected by the Judges Small Cause Court vide order dated 791996 against which he preferred a revision which was also dismissed by the District Judge vide order dated 30111996. The respondenttenant thereafter filed Writ Petition No. 39165 of 1996 which was also dismissed by the High Court vide order dated 2281997 with the observations that the respondenttenant cannot be permitted to change his version as by the amendment sought by him the very nature of the suit would change. Thereafter the order of rejection of the amendment sought by the respondenttenant in his written statement attained finality.

It is further contended by Mrs. Rama Bansal Goel that the trial Court had illegally granted permission to the respondent tenant to deposit the arrears of rent amounting of Rs. 2,212/ in the aforesaid S.C.C. Suit No. 253/1987 which could not be granted to him in view of order of rejection of amendment having attained finality and also for the reason that he had acquired several houses as stated earlier in the city of Allahabad itself.

It is also submitted by Mrs. Rama Goel that the trial Court did not frame any issue on the question raised by the petitioner landlord regarding nonapplicability of Section 20 (4) when the tenant had acquired residential buildings in vacant states before commencement of the Act.

It is vehemently urged by her that particularly in view of the fact that the alternative accommodations acquired by the tenant having been admitted by him in his written statement the trial Court did not consider this point, as such the findings recorded by the trial Court are not only erroneous in law but are also against the record and as such the judgment passed by the trial Court cannot be sustained merely because he has ignored to give this finding and decided the crucial point by two lines only by stating that House No. 73 in Sarai Khuldabad was acquired by the father of the respondenttenant before commencement of the Act and therefore, the proviso to Section 20 (4) of the Act would not be applicable to the house in dispute.

As regards the order of the trial Court it is submitted by the learned Counsel for the petitioner that it is admitted by the tenant on records that his father had expired in 1983 and that he inherited the tenancy of the house in dispute as well as of House No. 73, Sarai Khuldabad owned by his father. This issue has also been conveniently ignored by the revisional Court that after the death of the father of the tenant House No. 73, Sarai Khuldabad would be deemed to have acquired by the tenant on 811983 and therefore, the reference to the fact that whether Section 20 (4) of the Act is perspective in its application or not became irrelevant.

It is vehemently urged by the learned Counsel for the petitionerlandlord that the revisional Court did not give any finding in respect of the houses which were acquired by the respondenttenant in vacant possession which are in his possession. It is stated that both the Courts below have committed an illegality in holding that Section 20 (4) of the Act did not apply to the facts of the case, as such the impugned judgments and orders passed by the Courts below suffer from manifest error of law apparent on the face of the record, as such are liable to be quashed and the suit filed by the landlord is liable to be allowed by this Court.

In the last but not the least it is contended by the learned Counsel for the petitionerlandlord that the landlord has been harassed by the tenant by not vacating the house in dispute despite having acquired sufficient accommodation in vacant states acquired by him while the landlord with growing family consisting of 9 members is being forced to live in a small accommodation of four rooms having no other accommodation where his family could be accommodated.

Per contra, the contention of the learned Counsel for the respondenttenant is that the suit was filed under Section 20 (2) (a) of the Act by the petitioner on the ground of default in payment of rent. Subsequently, however, the petitioner added by amendment the ground of denial of title. The tenant filed his additional written statement and amended his written statement explaining that he had not been served with any notice of adornment either by the outgoing landlord or by the present landlord but on coming to know about the saledeed he admitted the title of the landlord and he admits the sale. It is stated that the respondenttenant also sought further amendment in his written statement which was denied by the Court and ultimately the Hon''ble Supreme Court ordered that the pleadings of the parties including the written statement shall be considered by the Court at the time of hearing.

The learned Counsel for the respondenttenant further submits that the trial Court rightly given finding that the title of the landlord had not been denied by the tenant and that there was no default on his part was proved as the tenant had already deposited the entire arrears of rent, interest and costs of the suit on the first date of hearing and was entitled to benefit of the said deposit relieving him from the decree of eviction. The trial Court further rightly held that the proviso to Section 20 (4) had been held by the Hon''ble Supreme Court as well as by the High Court to be prospective in nature meaning thereby the said proviso will apply to the tenants who acquire any building after commencement of the Act and will not apply in the present case as the building had been acquired before the commencement of the Act.

It is submitted that in the present case the father of the tenant had acquired a residential house in 1959, hence the proviso to Section 20 (4) of the Act will not apply to the instant case which findings were also upheld by the revisional Court the suit was dismissed by the trial Court and the revision by the revisional Court.

It is next contended by the learned Counsel for the respondenttenant that the Act has been enacted as beneficial piece of legislation. The said provision of law is for the benefit of tenants and as a tenant he has rightly been granted the benefit of the proviso to Section 20 (4) of the Act by the Courts below which has been held to be prospective in nature by the Hon''ble Supreme Court as well as by the High Court.

It is urged that Section 40 of the Act was held applicable in case of pending appeals or revision arising out of the suit on the date of commencement of the Act. Section 39 was made applicable to the building which were brought under the Act for the first time. The aforesaid proviso has also been considered in the case reported in Mohammad Shamvell v. IVth Additional District Judge, Aligarh & Ors., 1985 (1) A.R.C. 420, and the interpretation of being prospective in nature has been upheld.

It is lastly submitted by the learned Counsel for the respondents that in the circumstances of the case the Courts below have rightly upheld the benefit of deposit under Section 20 (4) of the Act and have rightly dismissed the suit of the petitionerlandlord, as such there is no illegality in both the impugned judgments and orders requiring any interference by this Court under Article 226 of the Constitution and therefore, the writ petition is liable to be dismissed with costs.

The object and scheme of the Act basically is that whenever the tenant or any member of his family acquires or purchases an accommodation in vacant state, he cannot challenge the bona fide need and comparative hardship of the landlord. The legislature in its wisdom has provided the circumstances under which the landlord may move a release application for release of the tenanted accommodation which he requires for his personal need otherwise it may be allotted to some other needy tenant.

Section 20 (4) provides for eviction of the tenant from a tenanted accommodation on the grounds enumerated therein including default in payment of rent. The tenant, therefore, cannot be permitted to save his eviction in the event of default in payment of rent or breach of those grounds. These grounds have been enumerated in Section 20 (2)(a) read with subsection (4) of the Act.

Section 20 (2) (a) read with Section 20 (4) provides :

�In any suit for eviction on the ground mentioned in clause (a) of subsection (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 of 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 subsection (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.�

The proviso to subsection (4) of Section 20 further provides as under :

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

A plain reading of the Section shows that the legislature in its wisdom has provided a discretion on the authority that if any amount has been deposited by the tenant under Section 30 (1) of the Act 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. Thus, the Courts below might have in its discretion allowed the tenant to continue as a tenant on the ground that he had deposited the entire rent due with interest under Section 30 (1) of the Act and extended the benefit of Section 20 (4) to him, but no such extension has been provided in the proviso which itself provides that nothing in this subsection, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.

Admittedly, the respondenttenant has acquired a good number of residential houses in the same city/municipality/notified area/town area in vacant state. There is evidence of the tenant in the Courts below admitting the facts that he has got other houses apart from House No. 73, Sarai Khuldabad, i.e., House No. 143, Bhusauli Tola which has been appended as Annexure 8 to the writ petition. The tenant has also admitted in his statement that House No. 143, Bhusauli Tola is ancestral house, part of which came in his share after the death of his father. The relevant statement given by him in the Court below as under :

�Makan No. 73 Sarai Khuldabad Maine Nahin Khareeda. Yah Makan mere pita wa chacha ka tha. Mere chacha wa pita ke beech batwara huwa jiske 73 makan No. mere pita ji ke hisse mei aya aur 72 ka baki bhag chacha ke hisse mei aya. Yah kahna galat hai ki san 1974 me ya aas paas maine wa Kaushalya Devi ne yah makan No. 73 khareeda hai.

Makan No. 16 Sarai Khuldabad mei main rahta bhee him aur rojgar bhee karta hun.

Maine 143 Bhusauli Tola ko bhee nahin khareeda hai. Yah makan bhee mere pita ka pushtaini makan tha aur unki mrityu ke baad unka hissa jo 1/4 bhaag tha mujhe virasat me mila.

129 Khuldabad mere larke ne nehin banwai balki wah sarkari makan hai. Mere pita 811983 ko mare the. Unki Mrityu praman patra maine dakhil kar diya hai.

Vivadit makan mere pita ji ne kiraya par liya tha. Mere pita ji baniye ki dukan karte the. Jab makan kiraya par liya us samay unke paas do makan the jinke number makan No. 73 tatha 143 Bhusauli Tola hai. Mere pita 73 Sarai Khuldabad mei dukan karte the. Wah usme 1965 se pahle se dukan karte the tatha jab wah mare tab tak dukan kee. Maine 73 Sarai Khuldabad mei kabhee koi vyapar nahin kiya. Mere papa ko 73 makan ka juj bhaag mila, uska number dhyan nahin. Ek hi makan ke bhaag huye the.

Mere pita kee mrityu ke uprant 73 Khuldabad ka unka hissa mujhe mila jisme mera larka rahta hai.

143 Bhusauli Tola ka mujhe koi kiraya nahin milta hai. Hamare bhaag mei Sharma kirayadar rahte hain jinhe hamare pita ji ne kiraye par diya tha. Mera larka kis makan mei rahta hai mujhe nahin pata, maine 139 Khuldabad nahin dekha. Vijay naam ka mera larka hai. Wah kalian rahta hai mujhe nahin pata. Maine uska makan nahi dekha. Wah kahan dukan karta hai yah bhee nahin pata. Wah 73 Sarai Khuldabad mei dukan nahin karta. Mere pita ko mare kitne din ho gaye yah mujhe nahin pata.�

Thus, the Courts below have committed illegality in dismissing the suit of the petitionerlandlord as well as the revision filed by him.

The respondenttenant in paragraphs 1 and 2 of his preliminary objections has denied the title of the landlord also stating that the release application of the landlord is not maintainable and is liable to be dismissed with costs as he is neither the owner nor landlord of the disputed house, as such he has no right to move the release application against the tenant which is liable to be dismissed.

The aforesaid reply of the tenant is in respect of paragraph 1 of the plaint wherein the petitioner has claimed himself to be landlord. Thus, the question of denial of title has assumed importance and the tenant could not have retracted his stand of denial of title which was also turned down by the trial Court as stated above as it would amount change in the written statement changing the nature of the suit.

The effect of denial of title would, therefore, be that if the petitioner is found to be the landlord of the house the tenant has to vacate the house and the relief sought of eviction of the tenant on the ground of denial of title is to be allowed.

In the instant case, the tenant has denied the title. The trial Court has totally ignored the evidence available on record and decided the suit in cursory manner which mistake the revisional Court has also committed in deciding the crucial point of title.

Reference may also be made in this regard to the decision rendered by the apex Court in Ghoorey Lal v. Sheo Murti Gupta & Anr., 1995 (2) A.R.C. 4, wherein it has been held that if the tenant has deposited the entire amount under Section 20 (4) of the Act but has denied the title of the landlord that will not save him from eviction as the benefit of Section 20 (4) of the Act in the circumstances cannot be given to him.

Moreover, the High Court in Writ Petition No. 39165 of 1996 while dismissing the writ petition observed that the tenant cannot be permitted to change his version because the amendment sought by him would change the nature of the suit. The order and judgment of the High Court had attained finality and as such this plea was not open before the Courts below for grant of relief to the tenant on this consideration.

For the reasons stated above, I am of the considered opinion that not only the respondenttenant has acquired vacant possession of a number of houses after Act No. XIII of 1972 became applicable, he is also not entitled to the protection of Section 20 (4) of the Act for having acquired building or part thereof in his share in vacant state. The case of Mohammad Shamvell (supra) relied upon by the learned Counsel for the tenant is, therefore, not applicable to the facts and circumstances of this case.

The petition is accordingly allowed and the impugned orders are quashed. The respondenttenant shall handover peaceful vacant possession of the house in dispute to the petitionerlandlords within two months from today.

In case the tenant does not handover peaceful vacant possession of the house in dispute to the landlord within two months from today the landlord will be entitled to proceed in accordance with law.

Since the respondenttenant despite having vacant possession of a number of houses dragged the petitioner upto High Court for having no genuine need of the house in dispute but kept on litigating harassing the landlord for about 20 years, hence he is liable to be awarded with a deterrent and exemplary costs in view of Hon''ble Supreme Court decision rendered in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(3) JCLR 251 (SC) : AIR 2005 SC 3353.

In view of the facts and circumstances of the case the costs is assessed at Rs. 10,000/ on the tenant to be deposited by him in the trial Court. The amount of costs so deposited by the respondenttenant may be withdrawn by the petitionerlandlord within two months from today without furnishing any security. In case the tenant does not deposit the aforesaid amount of Rs. 10,000/ as costs within two months from today, the amount shall be recovered as arrears of land revenue within one month thereafter.