Shiv Nath Kapoor and Another vs Committee Arya Anathalaya

Rakesh Tiwari, J.—Heard counsel for the petitioner, Sri S.K. Pandey for caveator respondent and perused the record. By this petition, the tenant petitioner challenges the validity and correctness of the judgment and order dated 17.7.2009 passed by Judge, Small Causes Court, Bareilly in S.C.C. Suit No. 27 of 2003 appended as Annexure-7 to the writ petition as well as judgment and order dated 17.2.2011 passed by Additional District Judge, court No. 1, Bareilly in S.C.C. Revision No. 23 of 2009 appended as Annexure-8 to the writ petition.

Facts of the case in brief are that petitioners are father and son. Petitioner No. 1-Shiv Nath Kapoor was the original tenant of the respondent at the rate of Rs. 15 per month in the quarter situated at Arya Samaj Anathalaya, Civil Lines, Bareilly. The tenancy was month to month commencing from first day of each month of English calender.

S.C.C. Suit No. 65 of 1989 was earlier filed by the landlord for arrears of rent and eviction of the petitioner from the premises in dispute. The suit was dismissed by the Additional Judge, Small Causes Court, Bareilly vide judgment and order dated 29.3.199. The revision preferred by the landlord was also dismissed by IXth Additional District and Sessions Judge, Bareilly by judgment and order dated 23.8.1997.

It appears that another S.C.C. Suit No. 27 of 2007 was filed by the landlord for arrears of rent of subsequent periods and eviction of the petitioner from the premises in dispute. The suit was contested by the petitioner tenant by filing written statement. The Judge, Small Causes Court, Bareilly after appreciation of the evidence, decreed the suit by impugned judgment and decree dated 17.7.2009. Revision preferred by the tenant petitioner was also dismissed by Additional District Judge, court No. 1, Bareilly vide judgment and order dated 17.2.2011. Aggrieved the tenant petitioner has come up in this petition.

The judgment and decree passed by the courts below is assailed on the ground that courts below have misread and misinterpreted the evidence on record and the finding recorded by the court below with regard to non applicability of U.P. Act No. 13 of 1972 and invocation of the exemption u/s 2 (1)(bb) of U.P. Act No. 13 of 1972, are against the settled position of law. It is stated that reasons given in judgment and decree of the courts below are totally incorrect and the courts below while passing the impugned orders have also misinterpreted the findings recorded by the same Court in the earlier suit being Suit No. 65 of 1989 between the same parties ignoring the principle of estoppel and res judicata.

According to the petitioner, it is fully proved that on the first date of hearing of the suit, no amount of rent whatsoever was due upon the tenant petitioner and the finding of the court below to the effect that amount of rent deposited by petitioner No. 2 who is son of the original tenant, cannot be considered as legal deposit of rent on behalf of his father-petitioner No. 1 is misconceived and against settled position of law. It is argued that it is settled principle of law that any person can deposit the rent in the name of tenant and law does not require that tenant should personally deposit or tender the rent and that even otherwise the finding recorded by the court below in this regard is totally perverse as tenant-petitioner No. 2 is not a stranger but is the real son of the original tenant and a member of his family, hence there was no occasion for the court below to take a contrary view that the petitioner cannot get benefit of Section 20(4) of deposit of rent made u/s 30(1) of U.P. Act No. 13 of 1972 and in any case the deposit of rent ought to have been taken into consideration for adjustment u/s 20 (4) of the Act by the court below before recording any finding or drawing adverse inference against the petitioner tenant for not examining petitioner No. 1 in evidence in this regard.

On the other hand, counsel for the landlord respondent submits that petitioner was a defaulter in payment of rent and principle of res judicata would not apply to proceedings in Suit No. 27 of 2007 in the facts and circumstances of the case. According to him, concurrent findings of fact having been recorded against the petitioner by the courts below on basis of pleadings and evidence, this writ petition is liable to be dismissed.

In earlier Suit No. 65 of 1989, the landlord had claimed arrears of rent with effect from 1.12.1979 upto filing of the suit, i.e., 7.4.1989 and had also demanded damages at the rate of Rs. 10 per day as well as eviction of the petitioner on the ground of default in payment of arrears of rent. When Suit No. 65 of 1989 was filed, Section 2(1)(bb) was not on the statute. This provision has been inserted in Act No. 13 of 1972 by U.P. Act No. 5 of 1995, with effect from 26.9.1994. It excludes any building belonging to or vested in a public charitable or public religious institutions from the rigours of the Act.

The second suit, i.e., S.C.C. Case No. 27 of 2007 was filed for arrears of rent with effect from September, 1996 and eviction of the petitioner for default in payment of rent as well as on the ground that petitioner has made material alterations without express consent of the landlord by which the accommodation in dispute has been defaced resulting in value of the building. This suit was also filed on the ground that petitioner No. 1 the original tenant had left the accommodation in dispute and was residing at Amritsar in the State of Punjab and that he had permitted petitioner No. 2 to occupy the accommodation in dispute without consent of the landlord who was posing himself as landlord, i.e., there was an element of subletting.

On the basis of pleadings of the parties, the trial court framed the following issues:

After evidence was adduced, the trial court on consideration of the admitted facts in the case, held that relationship of landlord and tenant exists between the parties and that notice sent by the landlord u/s 106 of the Transfer of Property Act, was served upon the tenant terminating his tenancy which was replied by the tenant which is also on record.

The trial court decided issues No. 1, 5 and 6 together and held that petitioner tenant was a defaulter and three money orders sent by him towards rent on 31.7.1998, 3.4.2000 and 18.4.2001, is not an offer of monthly rent but arrears of defaulted rent of more than four months. The court held that since by money order dated 31.7.1998 the petitioner had tendered rent for the periods 1.9.1996 to 31.8.1998 for a period of about two years establishes the fact that petitioner was a defaulter in payment of monthly rent. The case of the petitioner that he had deposited the rent under Order XV, Rule 5. C.P.C. on the first date of hearing, has also been repelled as it was found to be incorrect by the Court thus:

The trial court concluded that in the circumstances the petitioner has been irresponsible in payment of rent to the landlord and decided issue Nos. 1, 5 and 6 in favour of the landlord.

So far as issue No. 2 is concerned, the trial court found that alterations in the accommodation had been made by the petitioner with the consent of the landlord and thus decided this issue against the landlord.

Issue No. 3 is with regard to the applicability of U.P. Act No. 13 of 1972. The case set up by the landlord was that the accommodation in dispute is beyond the purview of the Act in view of Section 2(1)(bb) whereas case of the tenant petitioner was that S.C.C. Suit No. 65 of 1989, Committee of Arya Anathalaya v. Shiv Nath Kapoor, between the same parties, had been decided earlier holding that provisions of U.P. Act No. 13 of 1972. are applicable, as such the subsequent Suit No. 27 of 2007 is barred by the principle of res judicata and that since the earlier suit had been decided against the landlord, there is no cause of action available to the landlord to file the present suit. The Court after considering the arguments of the parties, held that suit No. 27 of 2007 has been filed for arrears of rent with effect from September, 1996 and that the provisions of Section 2(1)(bb) have come on the statute book at later stage, i.e., with effect from 26.9.1994, the suit was maintainable and not barred by the principle of res judicata. Moreover, the cause of action to the landlord for filing the suit was a new one as the tenant had defaulted in payment of rent from September, 1996 upto the date of filing of the suit. Accordingly, this issue was decided holding that U.P. Act No. 13 of 1972, would not be applicable.

So far as issue No. 4 is concerned, it pertains to the question as to whether petitioner No. 2 is tenant and is in lawful possession of the accommodation or not ? The case of the landlord on this issue was that possession of petitioner No. 2 was illegal as it is an admitted fact that his father petitioner No. 1 was the original tenant; that though he was residing at Amritsar whereas petitioner No. 2 being son of the tenant was occupying the accommodation in dispute. According to the finding recorded by the court, a son can live in the accommodation under the tenancy of his father and his possession would not be unlawful in that case as he is a member of family of the tenant as defined in the Act.

On the question of relief, the Court decided issue No. 7 decreeing the suit partly by its judgment and order dated 17.7.2009, holding thus:

S.C.C. Revision No. 23 of 2009, Shiv Nath Kapoor and another v. Committee Arya Samaj Anathalaya through its President, filed by the petitioners, was also dismissed with cost holding that chairman of the trust in his evidence on affidavit had stated that plaintiff was a public charitable religious institution to which Act No. 13 of 1972 did not apply but the tenant did not cross-examine the plaintiff on this point inspite of a number of opportunities to cross-examine him. The revisional court also recorded a finding that this point was not the bone of contention in the earlier suit as Section 2(1)(bb) had not come on the statute by that time, hence the question of the suit being barred by the principles of res judicata does not arise. The revisional court also confirmed the findings of the trial court on issue No. 3 holding that court below has not committed any illegality or irregularity in its decision.

After hearing the counsel for the parties and on perusal of record, it is apparent that both the courts below have recorded concurrent findings of fact holding that U.P. Act No. 13 of 1972, is not applicable in proceedings in Suit No. 27 of 2007 in view of Section 2(1)(bb) which was brought on the statute with effect from 26.9.1994. Admittedly, this point was not in issue in earlier Suit No. 65 of 1989, hence the principle of res judicata would not apply as this point was neither available nor adjudicated and finally settled between the parties in the earlier suit.

From the record it is apparent that petitioner had sent three money orders tendering rent at interval of about two years each, therefore, the courts below have rightly come to the conclusion that this tender of rent establishes the factum of default in payment of monthly rent for more than four months continuously particularly when rent was also not deposited by the tenant-petitioner No. 1, in court u/s 30(1) of the Act on the first date of hearing.

As regards the question as to whether petitioner No. 2 could have deposited the rent of the accommodation in his individual capacity, suffice it to say that there are finer aspects. Admittedly, petitioner No. 1 is the father and is the original tenant whereas petitioner No. 2 is his son. Therefore, petitioner No. 2 could have occupied the accommodation in dispute being a member of family of his father-petitioner No. 1. However, from perusal of Annexure-9 which is copy of the tender receipt filed by the petitioner, it is apparent that rent was not deposited by petitioner No. 2 Jogendra Kapoor on behalf of his father Shiv Nath Kapoor, rather he had deposited the rent in his own individual capacity. Under U.P. Act No. 13 of 1972, the tenant is a person from whom rent is payable. Admittedly, the rent was payable by Shiv Nath Kapoor-petitioner No. 1 who was the tenant of the accommodation in dispute but was living at Amritsar. Therefore though the rent could have been deposited by the petitioner No. 2 on his behalf but it appears that his son Jogendra Kapoor-petitioner No. 2 tried to step into the shoes of the tenant, i.e., his father by depositing the rent u/s 30 of the Act in his own individual name. If the landlord respondent and the court below would have accepted the rent as valid deposit u/s 30(1) of the Act, then Jogendra Kapoor, the son of the tenant would have been successful in arrogating and conferring upon himself a legal status of tenant of the accommodation in dispute in his individual capacity even though the original tenant-his father (petitioner No. 1) was alive and tenancy had not devolved upon him, i.e., Petitioner No. 2 Joginder Kapoor. In my considered view, the rent deposited by Joginder Kapoor petitioner No. 2 not on behalf of his father who was the tenant, cannot be accepted as legal tender of rent by his son in his individual capacity as tenant. The courts below have, therefore, rightly come to the conclusion that rent deposited by Joginder Kapoor was not a legal tender of rent but he wanted to circumvent and become tenant of the accommodation in dispute as his father Shiv Nath Kapoor, the original tenant, was residing at Amritsar in Punjab. For all the reasons stated above, there appears to be no illegality or infirmity in the orders impugned. The petition fails and is accordingly dismissed. No order as to costs.