Nand Ram Sharma and Another vs The First Additional Dristrict Judge and Others

S.P. Srivastava, J.—Feeling aggrieved by the decree of ejectment and recovery of the arrears of rent and damages for the use and occupation, passed against the Petitioners by the Judge Small Cause Courts. Jhansi, Respondent No. 2, which was affirmed by the revisional Court dismissing the revision filed by the Petitioner. u/s 25 of the Provincial Small Cause Courts Act, they have now approached this Court seeking relief for quashing of the impugned decree.

The brief facts shorn of details and necessary for the disposal of this case are that the Plaintiff Respondent had filed a suit against the Defendants-Petitioners with the allegations that the shop. In dispute had been let out to Nandram Sharma at a rent of Rs. 75/- per month, which was subsequently enhanced to Rs. 200/- with effect from 1-12-1978. The Defendant tenant Nandram Sharma fell in arrears of rent from 1-12-1978 to 29-7-1970 and did not pay the same despite the service of the notice of payment and quit, which was issued in accordance with the provision u/s 20(2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to ''Act'') and was duly served. It was further alleged that Nandram Sharma had Sub-let the premises in dispute to Ram Autar, Defendant No. 2. This suit was therefore, a suit on the grounds envisaged u/s 20(2) (a) and (e) of the Act.

The aforesaid suit was contested by the Defendants asserting that Nandram Sharma was the sole tenant of the shop in dispute at the rate of Rs. 75/- per month and not Rs. 200/- as alleged. It was further asserted that Defendant No. 2 Ram Autar was a relation of Nandram . Sharma and not sub-tenant or partner in the shop. It was further asserted that Ram Autar was working in a capacity of a servant of Nandram Sharma. It was further asserted that after receipt of the notice, Nandram Sharma had sent money order for Rs 675- towards arrears of rent for the period 1-12-1978 to 31-8-1979 calculated at the rate of Rs. 75/- per month, which was refused by the Plaintiff and since the rent due had been refused by the Plaintiff and since the rent due had been tendered through Money Order, the question of default could not arise and the suit was liable to be dismissed.

The trial Court after carefully considering the voluminous documentary and oral evidence on record came to the conclusion that the case set up by the Defendants about tendering the arrears of rent through the money order was not acceptable. It further recorded a finding that the evidence led on behalf of the Plaintiffs about the enhancement of the rent from Rs. 75/- to 200/- per month on 1-12-1978 was worthy of credence and reliable and accordingly held that the rate of rent In respect of the shop. In dispute had been enhanced from Rs. 75/- to Rs. 200/- per month by mutual agreement. The trial Court accepted the receipt dated 1-12-1978 as genuine which amply established the case of the Plaintiff about the enhancement of the rate of rent from Rs. 75/- to Rs. 200/- by mutual agreement. The trial Court further recorded a finding that Nandram Sharma Defendant No. 1 was running a shop at Tulsi Nagar which was the only source of his livelihood. The trial Court further recorded a finding that the shop in dispute was in exclusive possession of the Defendant No. 2. The trial Court further found that on 29-3-1978, a partnership as contemplated u/s 4 of the Partnership Act had come into extence with Nandram Sharma and Ram Autar as partners. The case set up by the Defendants that Ram Autar was a servant of Nandram Sharma was therefore, disbelieved by the trial Court. It came to the conclusion that Nandram Sharma was doing his business in Tulsi Nagar and had in the garb of the partnership sub-let the premises in dispute in favour of Ram Autar. In the circumstances, therefore, the trial Court held the shop in dispute to be vacant as contemplated under the Act. On the above findings the suit was decreed as claimed.

The aforesaid decree was challenged in revision but without any success. The revisional Court endorsed all the findings recorded by the trial Court and up held the decree passed by it. The revisional Court clearly observed that in the instant case, Nandram Sharma, the Defendant No. 1 had tot been able to prove that Defendant No. 2, Ram Autar was his servant or his relation and determined the status of Ram Autar to be that of a subtenant.

I have heard Sri. G.N. Verma, learned Counsel for the Petitioner and Sri. H.S. Nigam, learned Counsel for the Plaintiff Respondent.

Sri. G.N. Verma, learned Counsel for the Petitioner has strenuously urged that the finding recorded by the Courts below on the question relating to the enhancement of the rate of rent from Rs. 75/- to Rs. 200/- per month by mutual agreement is patently erroneous. In support of this contention, the learned Counsel has urged that under the provisions of the Act, there is a clear prohibition for enhancement of rent by mutual agreement. It has been asserted that the manner and the contingencies, whereunder rent in respect of an accommodation governed by the Act could be enhanced have been specifically provided for in the Act itself and therefore, by necessary implication any other method, including that of mutual agreement, for the enhancement of the rent in respect of the accommodation, governed by the Act, stands prohibited It has been urged that in face of this statutory prohibition, it was not open to the Courts below to proceed on the assumption that the rent in respect of the accommodation in dispute bad been enhanced from 75/- to 200/- per month as claimed by the Plaintiff. The learned Counsel in this connection has referred to the provisions contained in Section 4 to 10 of the Act and has tried to cull out an inference from these provisions to the effect that they prohibited enhancement of rent in respect of an accommodation governed by the Act by mutual agreement.

The learned Counsel for the Respondent has, on the other hand, urged that neither the policy underlying the Act nor the scheme thereof prohibits the enhancement of rent in respect of the accommodation governed by the Act by mutual agreement. It has been asserted that Section 4(2) of the Act clearly provides that rent payable for any building shall be such as may be agreed upon between the landlord and the tenant and in the absence of any agreement the standard rent. He has urged that the exceptions provided in Sections 5, 6, 7, 8, 9A and 10 of the Act contemplate certain special contingencies which do not impose a bar or come in the way of enhancement of rent in respect of an accommodation governed by the Act, by mutual agreement between the landlord and the sitting tenant.

I have considered In the rival contentions of the learned Counsel for the parties on the aforesaid question.

It may be noticed that Section 4 of the Act corresponds to a part of Section 5 of the old Act (U.P. Act No. III of 1947). A perusal of Section 4(2) of the Act makes it apparent that it clearly contemplates that the rent payable for any building shall be such as may be agreed upon between landlord and the tenant It is in the absence of any agreement that the question of fixation of rent arises. Subject to certain limitations, the provisions contained in Section 5, 6 and 7 contemplate the right of the landlord to get the rent enhanced unilaterally even in the absence of any agreement. Section 8 and 9 relate to the determination regarding standard rent upward etc and the method for calculating the standard rent. The provisions contained in Section 9A of the Act relate to upward revision of rent in certain specific cases and Section 10 contains a provision for appeal against the orders passed u/s 8 or 9 of the Act. Section 5(i) of the U.P. Act No. III of 1947 stipulates that except as provided therein the rent payable for any accommodation to which the Act applied was to be such as may be agreed upon between the landlord and the tenant. Sub-sections (3), (4) and (5) of the aforesaid Section 5 of the U.P. Act No. III of 1947 envisage certain special contingencies. The new Rent Act viz. U.P. Act No 13 of 1972 has by and large retained the underlying policy relating to the enhancement of the rent, which was adopted in the old Act, viz U.P. Act No. 1(1 of 1947). However, certain additions, alterations and changes in the nature of special contingencies have been made under the new Act but they do not affect the right to get the rent in respect of the accommodation enhanced by a mutural agreement between the landlord and the tenant. While the U.P. Act No. III of 1947 was In force, a similar question as is raised in the present case had come up for consideration before a Full Bench of this Court in the case of Daulat Ram Sawhney Vs. Trilokinath, 7. After examining the provisions contained in U.P. Act No. III of 1947, the Full Bench came to the conclusion that there was no prohibition against an agreement for fixation of rent between any landlord and his tenant under the U.P. Act No. III of 1947 or the Rules framed thereunder. The Full Bench observed that it was quite immaterial whether the rent was agreed upon between the landlord and the tenant prior to the allotment order. It was further observed that if the agreement was prior to the allotment order, it would still be binding on both the landlord and the tenant and the rent would be payable in accordance therewith, if the contemplated tenancy later comes into existance ultimately by allotment order issued in accordance with the provisions of the Act.

I do not find any such change in the underlying policy of the Act or its scheme, which may run contrary to the underlying policy and the scheme of U.P. Act No. Ill of 1947 so far as, the enhancement of the rate of rent by mutual agreement is concerned. As a matter of fact In a case arising under the provisions of the new Act, a learned Single Judge of this Court in the decision In the case of Tarachand Saxena v. Additional District Judge, Moradabad 1978 ARC 357, clearly observed that even before the issuance of an allotment order, the landlord and the prospective allotment can agree upon a rate of rent in respect of the accommodation in dispute and the rate of rent so agreed will be binding, in case the agreement is proved.

I am, therefore, clearly of the view that the contentions raised by the learned Counsel for the Petitioner that the rent in respect of an accommodation governed by the Act could not be enhanced by mutual agreement and such enhancement stands prohibited under the Act is totally misconceived and is liable to be rejected.

It has been urged by the learned Counsel for the Petitioner that in the present case, the tender of the amount of rent in dispute to the landlord within the stipulated perior stood established as the Money order sent by the Petitioner had been refused by the landlord. It may be noticed that even according to the own case of the Defendants tenants the amount of arrears of rent which was allegedly sent to the landlord through the Money Order was based on a calculation at the rate of Rs. 75/- per month and not at the enhanced rate of Rs. 200/- per month. Both the Courts below have rejected the claim of the tenant regarding the amount In question having been tendered to the landlord through Money Order. Further since on the own showing of the Defendant tenant, no tender of the rent as claimed in the notice at the rate of Rs. 200/- per month was ever made to the landlord, he could not be saved from becoming a defaulter within the meaning of Section 20(2)(a) of the Act.

Learned Counsel for the Petitioner has further sought to challenge the findings recorded by the Court below on the question of sub-letting and determining the status of Defendant No. 2. Ram Autar to be that of a subtenant. I had an occasion to consider the implications arising u/s 12(1)(b), 12(2), 12(4) and Section 25 alongwith its explanation in Civil Misc. Writ Petition No. 19055 of 1988, Gur Dayal Khanna v. Smt. Malti Devi and Ors., decided on 17-9-1992. The ratio of that case Is fully applicable to the facts and circumstances of the present case and on the facts found and established on the record. the Plaintiff in the present case, was clearly entitled to the presumption of fact, of coming into existence of a sub tenancy, by legal fiction envisaged under the explanation to Section 25 of the Act, which had not been effectively rebutted by the Defendants and in that view of the matter, the ground contemplated u/s 20(2)(e) of the Act was clearly made out justifying the Impugned decree.

Moreover, the findings on the question of ''default'' and ''Subtenancy'' have been arrived at after appraisal of evidence. In the case of Ram Narain v. Kanhaiya Lai 1965 ALI 989, a Division Bench of this Court had clarified that while exercising the revisional jurisdiction envisaged u/s 25 of the Small Cause Courts Act, the revisional Court empowered to look into the evidence of the case and to decide whether the finding of fact arrived at by the Court below is justified by the evidence on the record or not and that it could not reverse the findings of fact arrived at by the Judge Small Cause Courts upon the evidence before it. In the present case no such infirmity in the findings on the question of fact recorded by the trial Court could be pointed out, which could entitle the revisional Court to disturb them.

In view of the conclusions Indicated hereinbefore, I do not find any error much less manifest error of law which may justify an interference by this Court in the impugned orders, in the exercise of the extraordinary juriediction envisaged under Article 256 of the Constitution of India. In the result the writ petition being devoid of merit is dismissed.

Parties shall however bear their own costs.