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Judgment
Prakash Krishna, J.—First floor of house situate at Mohalla Diggi Chauraha near Chaurasiya Petrol Pump was let out to the present applicant by the opposite party herein. SCC suit No. 1 of 1997 Smt. Raj Rani Chaddha v. Smt. Nirmala Mehrotra giving rise to the present revision, was filed on the pleas inter alia that the tenant aforesaid is in arrears of rent since October, 1994, whose tenancy has been determined by notice dated 5-11-1996 served on 8-11-1996. The relief for recovery of arrears of rent, damages pendente lite and future and eviction was sought for. The said suit has been decreed by the trial court by the judgment dated 8-5-2003.
The suit was contested by the present applicant on the ground that the monthly rent was Rs. 100/- instead of Rs. 500/- and that she is not in arrears of rent.
On the basis of the pleadings of the parties, the trial judge framed six points for determination. Under point No. 1 relating to the date of commencement of the tenancy, it was found that tenancy has commenced from September, 1994, agreeing with the plea raised by the plaintiff. The rate of rent under point No. 2 was held to be Rs. 500/- per month, as was pleaded by the plaintiff. On the question of default under point No. 3, it was held that the tenant is in arrears of rent since October, 1994. It was found under point No. 4 that there is no denial of plaintiff''s title by the defendant and the point was decided accordingly. Under point No. 5, notice was held to be valid and under point No. 6, the suit was decreed.
Learned Counsel for the applicant challenges the findings recorded by the trial court under points No. 1,2 and 3 only.
Heard the learned Counsel for the parties and perused the record.
Point No. 1 relates to the date of commencement of the tenancy of the tenant. According to the plaintiff, it commenced since September, 1994, but according to the defendant it commenced from April 1,1996. After hearing the learned Counsel for the parties at some length, they agreed that the said point is redundant and will have no impact on the ultimate decision of the revision. In the present case, arrears of rent has been claimed since October, 1994, therefore, whether the tenancy commenced since September, 1994 or April, 1994 is of little consequence. The finding recorded by the trial court even otherwise also is essentially finding of fact. More vital point is- what was the rate of rent urges the learned Counsel for the applicant.
The case of the applicant was that the rate of rent was Rs. 500/- per month and the said rate of rent was agreed in presence of Vishwanath Kakkar, P.W.2. The case of the defendant tenant, on the other hand, is that the agreed rate of rent was Rs. 100/-. The trial court has elaborately discussed the matter in paragraph-4 of the judgment and has preferred to place reliance on the plaintiff''s witness. The plaintiff''s statement on this point finds corroboration from the statement of Vishwanath P.W.2. It is admitted case that the plaintiff landlady did not issue any rent receipt. The evidence of the parties is in the nature of oath against oath. Learned Counsel for the applicant could not point out any illegality or perversity in the appreciation of evidence done by the court below.
Attention of the Court was invited towards the statement of P.W.1 wherein it was stated by her that she had given the rent receipt and got its counter foil signed by Smt. Nirmala Mehrotra, the defendant. An argument was built up that since the plaintiff has not produced the said counter foil, an adverse inference should have been drawn against her.
It may be noted that the defendant has examined herself as DW 1 and she has not stated any where in her deposition that any rent receipt was issued by the plaintiff. No attempt was made by the defendant to get the said counter foil summoned. The statement of the plaintiff P.W. 1 should be read as a whole. If the PW 1 had issued the rent receipt, there is no explanation as to why the defendant has not filed the said rent receipt in support of her case. The court below has stated in paragraph-4 of the judgment that it is admitted between the parties that the plaintiff had not issued any rent receipt and as such, the rate of rent is to be determined on the basis of the evidence of the parties. In view of the stand taken by the parties before the court below together with the fact that there is no positive statement by the defendant that any rent receipt was issued to her, the argument of the learned Counsel for the applicant is meritless. Even otherwise also, in view of the limited scope of interference in the present revision, is filed u/s 25 of the Provincial Small Cause Courts Act, it cannot be said that the judgment of the court below is perverse and is not based upon any relevant material on record.
Then, it was urged that the finding recorded by the trial court under point No. 3 relating to the period of default, is vitiated. The plaintiff claimed that the defendant is in arrears of rent since October, 1994. The case of the defendant applicant, on the other hand, was that she has paid the rent as and when it fell due and has sent the rent through money orders for the period May to October, 1996 at the rate of Rs. 100/- per month which was refused by the son of the landlady. The trial court by holding that since the agreed rate of rent was Rs. 500/- per month and money order was sent at the rate of Rs. 100/- per month, the refusal was justified, reached to the conclusion that the tenant is in arrears of rent since October, 1994.
Learned Counsel for the applicant submits that the trial court has abruptly jumped to the said conclusion without making an analysis of the respective evidence of the parties.
On a bare reading of the judgment under revision, it is evident that the said finding of the trial court is bereft of any discussion. It does not refer to any other reason except the one as pointed out above. When the point was whether the defendant tenant is defaulter since October, 1994 or since May, 1996, the trial court should have recorded a finding after consideration of the evidence of the respective parties. Learned Counsel for the plaintiff opposite party took a somersault and stated that even if this part of the judgment of the trial court is faulty, it is established on the record, on undisputed facts of the case that the tenant has not paid the rent since May, 1996 at the rate of Rs. 500/- per month and taking the arrears of rent since May, 1996, the applicant tenant is liable for eviction in view of the fact that she was in arrears of rent for more than four months on the date when the notice dated 5-11-1996 determining the tenancy was issued. A tenant liable for eviction should be in arrears of rent for four months or above on the date of the notice. Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides that no tenant shall be liable for eviction except on the grounds mentioned therein. u/s 20(2)(a) of the said Act, a tenant who is in arrears of rent for four months or more is liable for eviction after determination of the tenancy. In this legal and factual background, even if the finding recorded by the trial court holding that the tenant was in arrears of rent since October, 1994 is modified, the applicant tenant will still be liable for eviction. It is held that the tenant applicant is in arrears of rent since the month of May, 1996 and the decree for recovery of arrears of rent for the period earlier to this, therefore, cannot be sustained.
No other point was pressed.
To keep the record straight, it may be placed on record that this Court by order dated 7-10-2004 permitted the applicant to delete the name of opposite party No. 1 from the array of the parties. The said amendment was carried on 14-10-2004, as per endorsement of the counsel in the memo of revision. Resultantly, Smt. Raj Rani Chaddha remains the sole plaintiff opposite party in the revision, who is the landlady.
In view of the above discussions, the suit for eviction is decreed. It is further provided that the plaintiff opposite party is entitled to get a decree for recovery of arrears of rent at the rate of Rs. 500/- per month since May, 1996. The defendant applicant is liable to pay the damages at the rate of Rs. 750/- per month, as ordered by this Court on 22-5-2003 since May 2003 till the date of actual delivery of possession to the plaintiff opposite party.
Time to vacate the disputed accommodation is granted upto 31-12-2009, subject to filing of an undertaking on affidavit before the trial court to the effect that she will vacate the disputed accommodation on or before 31-12-2009 and will hand over its peaceful vacant possession to the plaintiff opposite party landlady and on depositing of entire decretal amount and damages upto the period 31-12-2009, within a period of one month. In case of default in compliance of any of the conditions stipulated above within the stipulated period, it shall be open to the plaintiff opposite party to put the decree under execution.
The revision is allowed in part, as indicated above.
In view of divided success, no order as to costs.