Ram Swarup vs Uma Shankar

S.U. Khan, J.—At the time of hearing; no one appeared on behalf of tenant respondent, hence only the arguments of learned Counsel for the landlord petitioner were heard.

This is landlord''s writ petition arising out of S.C.C. Suit No. 01 of 1992 filed by him against tenant respondent. Initially, suit was decreed by J.S.C.C, Jalaun on 23.04.1994, however in revision, the said judgment was set aside by order dated 13.11.T998 and trial court was directed to decide the suit again. After remand, J.S.C.C./Civil Judge (Junior Division), Konch, District Jalaun dismissed the suit through judgment and decree dated 26.07.2004. Against the said judgment and decree, petitioner filed Revision No. 09 of 2004, which was dismissed by III A.D.J., Jalaun at Oral, through judgment and order dated 16.05.2005, hence this writ petition.

Admittedly, rent till 31.03.1990 had been paid by the tenant to the landlord. Admitted rate of rent is Rs. 60/- per month. The dispute is regarding payment of water tax. According to the landlord, Rs. 7.20/- per month is payable as water tax. However, tenant denied the said assertion. Landlord further asserted that Rs. 1.80/- per month is payable as sever tax. Tenant denied the said assertion also.

According to the tenant, landlord stopped accepting the rent, hence he sent money-order of the rent @ Rs. 607- per month from 01.04.1990 to 31.12.1991. It was refused by the landlord on 16.11.1991. Thereafter, tenant deposited the said rent in Misc. Case No. 04 of 1992 u/s 30 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. Thereafter, rent for the month of January and February, 1992 was also deposited by the tenant in the said miscellaneous case.

Thereafter, in the suit giving rise to the instant writ petition on 20.04.1992, which was first date of hearing, tenant deposited the water tax along with interest @ 9%. Total amount deposited on 20.04.1992 was Rs. 350/-.

The notice of termination of tenancy and demand of rent was sent on 10.12.1991, which returned with the endorsement of refusal. Post-man was also examined by the landlord. The Post-man stated that even though on the envelop address of house of tenant was mentioned but he was not available at his house, hence notice was served upon him at his shop. Courts below held that on the endorsement of refusal, post-man did hot get the signature of any witness, hence service of notice through refusal was not proved. In my opinion, this finding is utterly erroneous in law. Endorsement of refusal by the post-man was sufficient. There is no requirement that endorsement of refusal must be got witnessed in writing by some independent person.

Accordingly, findings of the court below that notice was not served are set aside.

However, trial court held that entire rent along with water tax, interest and cost of the suit had been deposited on the first date of hearing. The trial court noted the argument of the landlord that still there was deficiency of about Rs. 43/-, however trial court held that water tax was not payable, hence there, was no deficiency in deposit. This finding was reversed by the revisional court and revisional court held that water tax was payable. However, revisional court held that even after including the water tax, entire amount as required by Section 20(4) of the Act had been deposited on the first date of hearing.

Even if it is assumed that there was some deficiency in the deposit, it will not make much difference. Firstly, Supreme Court has held that negligible deficiency is to be ignored vide Kailash Chandra and Another Vs. Mukundi Lal and Others, Secondly, rent due till December, 1991 was sent through money-order, which was refused on 16.11.1991. In the Full Bench authority of Indrasani v. Din llani 1968 AWR 167 followed in subsequent Full Bench authority of Gokaran Singh v. 1st Additional District and Sessions Judge, Hardoi and Ors. 2000 (1) ARC 653 it has been held that if rent is sent by money-order by the tenant and is refused by the landlord, then rent remains in arrears but the tenant does not remain in arrears of rent. In view of this, at the time of notice dated 10.12.1991, tenant was not in arrears of rent even for a single month. Accordingly, notice was bad and suit was liable to be dismissed on this ground alone as by virtue of Section 20(2)(a) of the Act eviction on the ground of default may be decreed only if the following two conditions are satisfied:

(i) tenant is in arrears of rent for more than four months.

(ii) tenant has not paid the arrears of rent of more than four months inspite of notice of demand.

In the instant case, in my opinion, neither at the time of giving notice nor at the time of filing of the suit, tenant was in arrears of rent for four or more months. Accordingly, I do not find any error in the impugned judgments. Writ petition is therefore dismissed.

I have held in Khursheeda v. A.D.J. 2004(2) ARC 64 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 Malpe Vishwanath Acharya and Others Vs. State of Maharashtra and Another, where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. 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 (dead) by Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Another, of which are quoted below:

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 non-existent.

In Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 01.09.1940 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 31.03.1998.

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 9-A) or government is tenant (Section 21(8))]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court reported in Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, of which is quoted below:

It is well-settled 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 bonafide 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 Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, 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 un-reasonable arbitrary advantage conferred upon him 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 as� the tenant to shed the un-reasonable 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) A.R.C. 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.

Property In dispute is shop situate In Town Kaunch, District Jalaun, Existing rent of Rs. 600/- per month is highly inadequate. Accordingly, it is directed that w.e.f. October, 2008, tenant shall pay rent to the landlord @ Rs. 600/- per month. No further amount as water tax etc. over and above Rs. 600/- per month shall be payable.

As no one has appeared on behalf of tenant respondent, hence petitioner is directed to send a certified copy of this judgment to tenant respondent through registered post.