Shiv Kumari Jaiswal vs VIIth Additional District Judge and Others

Rakesh Tiwari, J.—The Petitioner claims herself to be the owner and landlady of the property No. C-19/218, situate at Maldahiya, Varanasi, filed Suit No. 86 of 1993, in the Court of Judge Small Causes, Varanasi for eviction of the tenants from the property in dispute on the ground of arrears of rent.

Prior to the institution of the suit, the Petitioner gave a composite notice dated 14.3.1991 demanding arrears of rent from August, 1988 to February, 1991 terminating tenancy and eviction of the tenants.

The notice was replied by the tenants Respondent by their reply dated 2.4.1991 denying the allegations of arrears of rent. Subsequently another notice was given by the Petitioner on 14.3.1991 wherein arrears of rent was demanded from March, 1991 onwards which was also not paid by the Respondents.

Respondents filed their joint written statements. The plea taken by them was that they had deposited the rent in the court below u/s 30 of U.P. Act No. 13 of 1972, hence they were neither defaulters nor there was any ground available to the landlady for their eviction from the accommodation in dispute and as such the suit was liable to be dismissed.

The trial court after going through the pleadings and the arguments of the parties concluded that the deposit made by the tenants u/s 30 of U.P. Act No. 13 of 1972 was insufficient and did not satisfy the requirements of Section 20(4) of the said Act. It was also found as a matter of fact that the tenants Respondent neither deposited the rent demanded in the notice or in the suit on the first date of hearing, hence decreed the suit vide judgment and order dated 3.9.1997 and ordered the eviction of the tenants from the property in dispute.

The Respondents tenants except Sri Vinod Kumar who retired from the partnership in 1994 filed revision against the aforesaid judgment of the trial court wherein they relied upon the deposit made u/s 30 of U.P. Act No. 13 of 1972.

The contention of the counsel for the Petitioner is that it is apparent from the grounds of revision itself that the tenants Respondent have relied upon the deposit having been made u/s 30 of U.P. Act No. 13 of 1972 which was being sought to be adjusted and that it was not deposited in full inspite of being given notice of demand and even in the suit on the first date of hearing. According to the counsel for the Petitioner this plea of the Respondent is contrary to the provisions of Section 20 of U.P. Act No. 13 of 1972 as such the judgment of the trial court suffers from any error of law rather the revisional court has committed an illegality in interfering with the judgment of the trial court u/s 25 of the Small Causes Courts Act.

He submits that the revisional court has miserably failed to exercise jurisdiction vested in it in accordance with law. The deposit made u/s 30 of U.P. Act No. 13 of 1972 for the period after the notice of demand is not to be taken under consideration and if any amount falls short towards the arrears of rent, the Court could interfere, hence the revisional court has wrongly set aside the judgment of the trial court.

The counsel for the Respondents is not present even in the revised list. However, the case of the Respondents in the counter-affidavit appears to be that the second notice dated 14.5.1992 given by the Petitioner demanding arrears of rent from March, 1991 is wholly illegal and wrong ; that when the Petitioner refused to issue receipt of rent, they sent the amount of rent by money order to the Petitioner which was also refused by her. Thereafter it is being deposited in the court below u/s 30 of U.P. Act No. 13 of 1972 since 1984 in Misc. Case No. 317 of 1984 ; that after the Petitioner withdrew the amount of rent so deposited by the tenants Respondent up to the month of February, 1991 in the Court that another notice was given by the Petitioner on 24.5.1992 wherein the rent was demanded from them again for the period March, 1991 onwards ; that the Petitioner had knowledge that the tenant Respondents are depositing the rent in the aforesaid misc. case continuously as such the revisional court has rightly allowed the revision filed by the Respondents ; that the Respondents had failed to deposit the rent as claimed by the Petitioner landlady under Order 15, Rule 5 of the Act while the Respondents had deposited the entire amount of rent as demanded by her in the plaint on the first date of hearing before filing the written statement ; hence the judgment of the revisional court is correct and Suit No. 86 of 1993 filed by the Petitioner is baseless, against the provisions of law and is not sustainable in the eye of law.

It is settled law that upon the notice of demand having been served by the landlady to the tenant it is mandatory upon the tenant to establish by his own evidence that he had made efforts to pay that amount directly to the landlady and upon his/her refusal or having failed in his efforts he has sent the same by money order directly to the landlord which after his/her refusal is deposited in the Court.

In the present case, the notice of demand was served on the Respondents on 14.5.1992, no efforts appear to have been made by the tenants to establish that they had even attempted to give the rent to the landlady.

Order 15, Rule 5 provides that the entire amount shown as demanded to be due in the plaint suit is to be deposited on the first date of hearing. The Explanation to Order 15, Rule 5 provides that first hearing means the date for filing the written statement or for hearing mentioned in the summons. In the present case, the Respondents filed their written statements but did not even then deposit the amount of rent as claimed by the Petitioner landlady in the plaint, hence they had no defence before the Court. The judgment of the revisional court is, therefore, liable to be quashed, as there is manifest error of law in the judgment impugned. It is against the provisions of law as has been held in Gokaran Singh v. Ist Additional District Judge and Ors. 2000 (1) AWC 653.

It is apparent from the impugned order dated 3.9.1997 of the Judge Small Causes Court that the water tax which was a part of the rent was also not deposited by the Respondents in proceedings u/s 30 of U.P. Act No. 13 of 1972, hence the amount of rent so deposited by them u/s 30 was short of the rent due. This finding of the trial court has not been even touched by the revisional court. For this reason too, the findings of the revisional court are liable to be set aside.

For the reasons stated above, the writ petition is allowed and the impugned judgment of the revisional court dated 4.2.1999 is quashed. The judgment and decree dated 3.9.1997 of the Judge Small Causes Court, Varanasi is upheld. The tenants are directed to handover peaceful and vacant possession of the disputed accommodation to the Petitioner landlady within a period two months from the date of production of a certified copy of this order.