Rakesh Jain vs Sharda Devi Jain

V.K. Shukla,J.

Present civil revision has been filed under Section 25 of the Provincial Small Cause Court Act against the judgment and decree dated 29.5.2009 passed by the Judge Small Cause/Additional District, Court No.8, Agra in SCC No. 37 of 2002 Smt Sharda Devi Jain Versus Rakesh Jain.

Brief background of the case is that Suit No. 37 of 2002 had been instituted for arrears of rent and ejectment and damages on the ground that plaintiff/respondent is landlady of the premises in question and Rakesh Jain was let out the premises in question at the rate of Rs. 900/ per month since last about one and half decade back and then it was enhanced in the year 1998 Rs.1,595/, in the year 2000 to Rs. 1,755/ and currently at the rate of Rs. 1,930.50 per month. Defendant/revisionist was not regular in making payment and he had made payment in the year 1998 wherein Rs. 12,270/ was less towards rent and Rs. 880/ was less toward water charges and receipt was issued on 16.6.1999. Thereafter, rent was not paid, notice was given and then suit was instituted in the court of Civil Judge (Junior Division), Agra, claiming Rs. 17,567.20 and thereafter wrong reply was received then present suit in question was got instituted claiming amount of Rs.38,687.50 due. Suit was contested by tenant in question by contending that premises was let at the rate of Rs. 750/ per month and it was subsequently increased to Rs. 1090/ per month, which was inclusive all taxes. It was stated that pressure was exerted to increase the rent, then rent had been sent by money order, same has been refused to be accepted by the plaintiff/respondent. Thereafter, deposit was made under Section 30 of U.P. Act No. 13 of 1972 and Misc. Case No. 173 of 1994 was instituted. Thereafter, plaintiff/respondent started accepting rent by way of cheque and in this manner rent uptil December, 2000 had been paid. It has been contended that in January, 2001 plaintiff/respondent has taken Rs. 20,000/ by way of advance for repairing of the house, wherein Rs. 13,560/ was towards rent upto February, 2001 and further two cheque of Rs. 5265/ and Rs. 10,530/ were also given as advance rent, but plaintiff/respondent refused to accept, it was mentioned that provision of U.P. Act No. 13 of 1972 are applicable and there is no default in payment of rent. Additional written statement was also filed and it was contended therein that initially rent was Rs. 750/ per month and same was increased to Rs. 900/ per month, which was inclusive water tax, electricity charges. In the year 1998 it was enhanced to Rs. 900/ and then it was enhanced to Rs. 1090 in September, 1989, rent in question was refused to be accepted, then deposits were made under section 30 of U.P. Act No. 13 of 1972 and and plaintiff/respondent has withdrawn the amount in question at the rate of Rs. 1,080/ and thereafter w.e.f. 1.7.1999 to December, 1999 rent was paid at the rate of Rs. 1,595 and thereafter w.e.f. 1.1.2001 to 30.42001 payment was made by cheque and then from 1.5.2001 to 31.12.2001 it was paid by cash and further it has been contended that on the first day of hearing, Rs. 15,000/ has been deposited. Plaintiff/respondent filed replica to the same and disputed the averments mentioned therein. From the side of plaintiff/respondent her husband Chandrabhan, and power of attorney holder appeared by filing affidavit, as PW1 and Raj Kumar Shrotiya hand writing expert appeared as PWII and Ravindra Kumar as PWIII appeared. From the side of defendant/revisionist he himself appeared as DWI and hand writing expert Dr. O.P. Taneja also appeared as DWII and report was also called for from Forensic Lab U.P., Agra. After respective evidence has come on record, Judge Small Cause Court has proceeded to decree the suit, at this juncture present civil revision has been filed.

Sri Swapnil Kumar, Advocate, learned counsel for the revisionist contended with vehemence that in the present case suit was not at all competent and maintainable and coupled with this there was no arrears of rent whatsoever, in this background by no stretch of imagination, suit could be decreed as has been done in the present case and as such judgement and decree in question is liable to be set aside.

Sri J.J. Munir, Advocate, learned counsel for the plaintiff/respondent on the other hand contended that Judge Small Cause Court has recorded categorical finding of fact qua quantum of rent and has found that there is default and defendant/revisionist has been in arrears of rent and as such judgment and decree passed by the Judge Small Cause Court is liable to be affirmed.

After respective arguments have been advanced, three issues were framed before the the Judge Small Cause Court:

(i) as to whether landlord has given wrong description in respect of fixation of rent and what is the exact rent.

(ii) as to whether there is default in payment of rent.

(iii) as to whether plaintiff is entitled for any relief.

Question of maintainability of the suit on which much stress has been laid is taken up first. Copy of the plaint on the basis of which decree has been passed, has been perused. Said suit in question i.e. Suit No. 37 of 2002 Smt. Sharda Devi Jain Versus Rakesh Jain has been filed clearly contending therein that plaintiff therefore served on defendant with a registered notice dated 25.6.2002 through her counsel, demanding entire arrears of rent and terminated/determined his tenancy, but to no purpose. The defendant neither paid the arrears nor vacated the premises and observed silence. Consequently, the plaintiff filed a suit, for rent for the unpaid period upto October, 1998 amounting to Rs. 12,270.20 plus Rs. 880/ towards water tax and Rs. 4,417.20 towards interest aggregating Rs, 17,567.20 in the court of Civil Judge (Junior Division) Agra to save it from becoming barred by time. After a long lapse of time and expiry of the period of the notice dated 25.6.2002, the defendant sent an absolutely false reply, stating wrong and baseless allegations, to which the plaintiff sent her counter reply and then thereafter, present suit has been filed on 31.8.2002. Notice dated 25.6.2002 is on record and as per the same tenancy in question has been terminated and on the expiry of 30 days from service of notice, suit in question was to be filed for recovery of arrears of rent and ejectment. Tenant in question was conscious of this fact that present suit filed on 31.8.2002 is based on the notice dated 25.6.2002 and that other suit referred to in the plaint was filed on 1.7.2002, which admittedly was before expiry of 30 days as such filing of said suit was of no consequence and was not at all relatable to notice dated 25.6.2002. Even in the plaint of said suit no reference of this notice had been given. Once earlier suit in question was not relatable to notice dated 25.6.2002 and same clearly mentioned that after 30 days from service of the notice, plaintiff shall be compelled to file suit for recovery of arrears of rent, then certainly it is not at all relatable to suit No. 20 of 2002, as such present suit cannot be said to be defective by any means, inasmuch as valid notice was given and thereafter valid suit has been filed, in this background plea, which has been sought to be raised is not unsustainable. Suit based on said notice was thus fully competent and maintainable.

Much emphasis has also been sought to be raised that present suit is barred under Order 2 Rule 2 C.P.C. as cause of action in present suit is based on notice dated 25.6.2002 and earlier suit has been instituted on the basis of notice dated 25.6.2002 in which relief claimed could be claimed. There appears to be complete misconception in the mind of revisionist on this score. In the earlier part of judgment, this much has been categorically found on the perusal of the plaint that earlier suit was not at all based on notice dated 25.6.2002 and subsequent suit which has been decreed was based on valid notice dated 25.6.2002. Earlier suit was in relation to amount due up to October, 1998 and suit was filed to see that claim was not barred by time and in the said plaint categorical mention was made that present suit is being filed without prejudice to her rights for rest of arrears. Moreover the earlier suit in question, on account of non appearance of both the plaintiff as well as defendant, has been dismissed for want of prosecution on 28.5.2004. Order 2 Rule 2 is based on the principal that defendant should not be vexed twice for the same cause, and plaintiff should include the whole of claim entitled to make in respect of cause of action. Where plaintiff omits to sue in respect of or intentionally relinquishes his claim, he is not entitled to sue in respect of portion so omitted or relinquished. Order 2 Rule 3, qua the relief omitted, in respect of same cause of action, gives liberty to sue with the leave of court. Here in the present case there is neither any omission nor any deliberate relinquishment of claim as is evident from the perusal of the first plaint, as qua the rent which was becoming time barred suit had been filed and for the remaining arrears, valid notice had been given demanding rent, and cause of action for instituting suit would have arisen, when demand was made, and there was inaction on the part of the defendants to respond to the said notice, as giving of valid notice is sinequonon for institution of valid claim. Cause of action, in this rule means the cause of action for which suit was brought. Cause of action under this rule is one which is ripe for enforcement and on which plaintiff can set up his claim. Consequently, in the fact of present case provisions of Order 2 Rule 2 are not at all attracted and second suit in question was not at all barred, specially in the background, that valid suit can be instituted only after valid notice is given and here said suit has been filed after giving valid notice under Section 106 of Transfer of Properties Act, then in this regard such plea cannot be sustained.

Emphasis has also been laid on the fact that suit is barred under Order 9 Rule 9 C.P.C. In the present case suit in question filed on earlier occasion, has not at all been dismissed under Order 9 Rule 8 of C.P.C. rather same has been dismissed, when neither of the parties appeared, at the point of time, when suit in question had been called. Order on the face of it, has been passed under Order 9 Rule 3 of C.P.C. and plaintiff in such contingency, subject to law of limitation may bring fresh suit or alternatively apply for restoration of case. Order passed under Order 9 Rule 3 C.P.C. does not fall within the expression of decree as defined under section 2(2) of C.P.C., as there is no express adjudication, or conclusive determination of right of parties. Provisions of Order 9 Rule 9 are not at all attracted in the facts of present case.

At last much emphasis has been laid on the question of determination of rent. Fact of the matter is that in the present case on the basis of evidence, which has been adduced, Judge Small Cause Court has recorded categorical finding of fact qua quantum of rent and this court would not appreciate evidence on this front, inasmuch as said finding of fact is based on appreciation of evidence and there is no perversity in the same. Defendant/revisionist has tried to contend before this court that various amount were paid in cash and said amount has not been adjusted. Question of payment by way of cash has not been accepted by the court below and once there is no receipt in lieu of payment, then Judge Small Causes Court has rightly proceeded to disbelieve in the same. Once there is arrears of rent and valid notice has been given terminating tenancy and even on first day of hearing provision of Section 20(4) of U.P. Act No. 13 of 1972 has not at all been complied with, then there is no infirmity in the decree of eviction being passed.

Consequently, order dated 29.5.2009 passed by the passed by the Judge Small Causes Court Act is affirmed. DefendantRevisionist is granted six months time from today to vacate the premises in question and handover peaceful possession to the plaintiff subject to the condition that undertaking is furnished within two months before court below that peacefully possession would be handed over to the plaintiff. In the event of failure to furnish undertaking interim protection accorded shall came to an end, decree in question shall be executed without any further delay.

With these observations, civil revision is dismissed.