Smt. Kusum Devi vs Smt. Ramshree Devi and Others

V.K. Shukla, J.—This is tenant''s petition for quashing of the order dated 14.10.2003 passed by Judge Small Cause Court, Aligarh in JSCC suit No. 49 of 1995 Smt. Ramshree Devi v. Anokhey Lal, decreeing the suit for ejectment on the ground of arrears of rent, and the order of its affirmance dated 20.08.2008 passed by Additional District Judge, Court No. 10, Aligarh in JSCC Revision No. 85 of 2003.

Brief background of the case is that petitioner has been tenant of premises of house No. 1/74 situated at Ghanshyampuri, Aligarh. Suit was filed with the allegation that defendant-petitioner was tenant of one room and one Varandah at the rate of Rs. 200/- per month plus 7% water tax and Rs. 60/- per month as electricity charges. It was mentioned that rent along with electricity charges was not paid since 01.02.1990 and the water tax was not paid since 01.04.1986. The claim set up by plaintiff was opposed by filing written statement by contending therein that tenancy was at the rate of Rs. 40/- per month inclusive of water tax and further rent till November, 1994 had been paid, and thereafter, as landlord was not accepting the rent, rent since December, 1994 was sent by money-order, which was refused, then deposits of rent were made u/s 30 of U.P. Act No. XIII of 1972. During pendency of proceedings Anokhey Lal died and his legal heirs and representatives were brought on record. In support of their respective claims Smt. Ramshree Devi got examined herself and the defendant examined Karan Singh as well as herself. Six issues were framed before the Judge Small Cause Court, and the first issue was decided in favour of petitioner that the rate of rent was Rs. 40/- per month. The other issues were decided in favour of plaintiff-landlord holding that petitioner was in arrears of rent and JSCC suit was decreed. Aggrieved petitioner preferred SCC revision, which has also been dismissed. At this juncture, present writ petition has been filed.

Rishi Chaddha, learned Counsel for the petitioner, contended with vehemence that in the present case, both, the Judge Small Cause Court as well as Revisional Court, have committed material irregularity in misreading the statement of the petitioner and without appreciating the controversy in its totality, on surmises and conjectures have proceeded to record perverse finding in respect of arrears of rent, as such the orders impugned are unsustainable and are liable to be quashed.

Countering the said submission Sri Pankaj Agrawal, Advocate, appearing for the landlord, contended that both the courts below have recorded categorical finding of fact of arrears being there, on correct appreciation of evidence after taking into account the statement of the petitioner and the said finding being neither perverse nor unreasonable, and on the first date of hearing there being admitted default, there is no occasion to interfere with the impugned orders, and as such writ petition is liable to be dismissed.

After respective arguments have been advanced, factual position which emerges in the present case is that while deciding issue No. 1, finding of fact has been returned that admitted rate of rent was Rs. 40/- per month. Petitioner''s case has been that till Nov. 1994 he had paid rent, and thereafter since December, 1994, when rent was refused, deposits were made u/s 30 (1) of U.P. Act No. XIII of 1972 in Misc. Case No. 27 of 1995, Anokhey Lal v. Smt. Ramshree Devi. Landlords'' precise case has been that with effect from 01.02.1990 onwards not even single penny had been paid by way of rent and with effect from 01.04.1988 water tax had not been paid and with effect from 01.02.1990 electricity charges had not been paid. In respect of electricity charges, finding has been returned that the same was not liability of the tenant, as such on said score, tenant cannot be said to be in arrears. Judge Small Cause Court as well as Revisional Court, both, have found that since 01.02.1990 onwards no rent, whatsoever, had been paid. Said finding of fact has been returned on the basis of appreciation of evidence which was available on record, and there is nothing on record to presume that the said finding of fact are in any way unreasonable or perverse. Said conclusions have been arrived at after taking into account the evidence adduced by the parties concerned, specially the statement of the petitioner herself. Apart from this, in the present case in order to get the benefit of Section 20 (4) of U.P. Act No. XIII of 1972 , tenant was obliged to deposit arrears of rent and other amounts as mentioned u/s 20 (4) of the said Act. In the present case, petitioner had merely deposited rent u/s 30 of the said Act w.e.f. December, 1994 till May, 1995. Rent from June, 1995 till November, 2000, the amount was deposited at the rate of Rs. 40/- per month, and at no point of time water tax and the cost of the suit had been deposited. Thus, on the first date of hearing admitted position was that the amount in question was due and was not at all deposited. In this background, there was no option but to pass decree of eviction, and thus there is no infirmity in the orders passed by the courts below.

Writ petition lacks substances and the same is dismissed. Petitioner is accorded six month''s time to vacate the premises in question and hand over its peaceful vacant possession to the respondent-landlady, subject to the condition that within one month from today affidavit shall be filed by the petitioner before the Judge Small Cause Court that premises in question will be vacated on or before expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today, the interim protection shall cease to operate, and landlord would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of petitioner.

No order as to costs.