Mohd.Kasim vs Benaf and others

S.U. Khan, J.—Heard learned Counsel for the parties.

This is tenant''s writ petition. Original landlord Subhan Khan since deceased and survived by respondents No. 1 to 4 instituted S.C.C. Suit No. 71 of 1983 against tenantpetitioner. In the suit eviction was sought on the ground of default. Suit was decreed on 9.5.1991 by J.S.C.C. Jhansi. Against the said judgment and decree, S.C.C. Revision No. 42 of 1991 was filed by the tenantpetitioner, which was dismissed on 4.1.1993 by District Judge, Jhansi, hence this writ petition.

Property in dispute consists of two rooms, which are part of house No. 335, Mukrayana, Jhansi. Rent is Rs. 4.50/ per, month. According to the plaint allegations, rent had not been paid from 17.7.1981 to 30.1.1983.

The tenant pleaded that in O S. No. 148 of 1977, which was suit for partition in between Smt. Kuraish Begum and her relations, Smt. Rukayya Begum was restrained from selling the house in dispute. However in spite the said injunction, house in dispute was sold to the plaintiff Subhan Khan by Rukayya Begum. The vendor Smt. Rukaya Begum was widow of predeceased son of the original owner of the house.

Smt. Kuraisha Begumwidow of original owner Seikh Munnu also gave notice to the tenant demanding the rent.

When the suit was filed and revision was decided, partition suit was pending. It was further pleaded that as a consequence of the above developments tenant was in doubt about the ownership of the house, hence he deposited the rent in case No. 188 of 1981 under section 30 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Earlier also original plaintiff Subhan Khan had filed Suit No. 289 of 1981 for recovery of rent. It was decreed on 23.10.1982.

Courts below particularly Revisional Court held that tenant deposited the rent from 1.1.1982 till 31.12.1982 in Suit No. 289 of 1981, hence it was valid payment to the landlord. However, it was further held that rent for six months prior to the said period, i.e. from July to December, 1981 was wrongly deposited by the tenant, hence he was defaulter for the said period. Notice was received by the tenant on 30.12.1982.

I do not agree in the least with the reasoning of the Courts below. Firstly under section 30 (2) of the Act, tenant is entitled to deposit the rent even in case of doubt. Section 30 (2) is quoted below:

"Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any Competent Court by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building."

Accordingly, even doubt in the mind of tenant is sufficient to entitle him to deposit the rent under the aforesaid provision. Moreover, in the earlier suit (289 of 1981), it was not held that deposit of rent from July to December, 1981 under section 30 (2) by the tenant was invalid.

It was not stated by the plaintiff that she intimated the tenant about the transfer deed in her favour executed by Rukayya Begum promptly. By virtue of proviso to section 109 of Transfer of Property Act, if the lessee, not having reason to believe that transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such a rent over again to the transferee.

In my opinion, view taken by both the, Courts below is utterly erroneous in law. Deposit under section 30 (2) of the Act made by the tenant was completely justified. Not only there was doubt but also dispute about the ownership/landlordship. It was not denied that sale deed was executed in spite of injunction order. In any case, sale deed by the widow of deceased son of the original owner was sufficient to create the doubt in the mind of the tenant unless the heirs (or other heirs) of the deceased Seikh Munnu consented for the same. Moreover, in suit No. 289 of 1981, no decree was passed for the prior rent, i.e. from July to December, 1981 and tenant was permitted to deposit the rent in the said suit for the entire year of 1982. It clearly amounted to finding of the Court that earlier deposit under section 30 (2) was valid and the said amount was not due against tenant. Accordingly, it is quite clear that at the time of notice, no rent was due against tenant.

Writ petition is therefore allowed. Impugned judgments, decree and order are set aside. Suit for eviction is dismissed.

I have held in Khursheeda v. A.D.J., 2004 (55) ALR 586 (HC) and H.M. Kichlu v. A.D.J., 2004 (2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the Courts below, writ Court is empowered to enhance the rent to a reasonable extent.

In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602 where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Act. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and Courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma v. Union of India, 2008 (71) ALR 499 (SC) part of para 29 and para 34 of which are quoted below:

"29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become nonexistent.

In Malpe Vishwanath Acharya and others v. State of Maharashtra and another (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.3.1998."

Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 except where landlord is public charitable or public religious institution (section 9A) or Government is tenant (section 21 (8)). In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court in Shangrila Food Products Ltd. v. Life Insurance Corporation of India, AIR 1996 SC 2410, paragraph 11 of which is quoted below:

"It is wellsettletd that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief."

Thereafter in para 8 of the aforesaid authority of Khursheeda, I held as under:

"Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage, cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.F.P. v. L.I.C., AIR 1996 SC 2410 has laid down that while granting relief to a party the writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred uponhim by the said Rent Control Act. The writ Court therefore while granting" or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act."

Thereafter in H.M. Kitchlu v. A.D.J., 2004 (2) ARC 652, I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so writ Court approves the protection of Rent Control Act granted to the tenant by the Courts below.

Existing rent of Rs. 4.50/ is rather ridiculous. It is virtually as well as actually no rent. Accordingly, it is directed w.e.f. July, 2008 onwards tenant shall pay rent to the landlordrespondent @ Rs. 500/per month.