Smt. Rama Devi Srivastava and Others vs Smt. Sat Devi and Others

V.K. Shukla, J.—This is tenants petition questioning the validity of the order dated 2.8.2007 passed by the Judge Small Causes Court, Kanpur Nagar in Case No. 30 of 2000 as well as order of its affirmance in J.S.C.C. Revision No. 31 of 2008 decided on 10.9.2008.

Brief background of the case is that petitioners'' are tenant of House No. 7, Old No. 66-A, Kagi Khera, Lalbangla, Kanpur. Since 1.9.1994 to 1.6.2002 rent was not being paid, as such registered notice was sent on 9.12.1999 which was duly received on 17.12.1999. Said notice had been improperly replied, as such suit was filed for arrears of rent and ejectment. To the said suit, written statement was filed and claim was made by tenant-petitioners, mentioning therein that in proceeding u/s 30 of the Act rent had been deposited, as landlord-respondents had refused to accept the rent. It was also sought to be mentioned in paragraph that rent has been paid u/s 20(4) of U.P. Act No. 13 of 1972 and deposits were also being made under Order 15 Rule 5 C.P.C. After filing of the written statement, tenant-petitioners, at no point of time, have participated in the proceedings in the court concerned and court concerned having left with no option, proceeded ex parte wherein evidence from the side of landlord-respondents was led and then suit was decreed on 2.8.2997. Against the said order J.S.C.C. Revision was filed and said revision has also been dismissed. At this juncture present writ petition has been filed.

Sri Narendra Mohan, Advocate, learned Counsel for petitioners contended with vehemence that in the present case entire rent had been paid as such petitioners are entitled to be exempted from the decree of the eviction and both the courts below have clearly erred in law in passing the decree of eviction, as such writ petition in question in the facts of case as set out deserves to be allowed.

Countering the said submission, Sri Saurabh Srivastava, Advocate on the other hand contended that in the present case rent has not at all been paid on the first date of hearing and finding of fact, which had been returned, is rightful finding of fact and no interference be made with the impugned order, in exercise of authority of judicial review.

After respective arguments have been advanced, undisputed factual position, which is emerging in the present is that J.S.C.C. Suit had been filed and therein categorical plea has been taken that petitioners have been in arrears of rent since 1.9.1994 upto 1.6.2002, and in spite of service of notice rent in question had not been paid. After filing of written statement, petitioners disappeared and no cogent reasons whatsoever were given by them for non appearing in J.S.C.C. Suit. Judge Small Causes Court has clearly and categorically recorded finding of fact that benefit of Section 20(4) of U.P. Act No. 13 of 1972 cannot be extended, as on first date of hearing, petitioners were obliged to see that entire rent demanded along with 9% interest and cost of the suit was to be deposited, which could have save the petitioners from the rigors of eviction. Petitioners claim that they have been making deposit of rent u/s 30 of U.P. Act No. 13 of 1972. In proceedings u/s 30 of U.P. Act No. XIII of 1972, it is bare rent which is deposited, in certain circumstances. But once suit is filed, on the ground, that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of notice of demand, then second opportunity is there to save the tenancy, by depositing on the first date of hearing, unconditionally, the entire amount of rent and damages for use and occupation of building calculated at the same rate as rent, along with interest thereon at the rate of nine percent per annum and the landlords cost of suit, after deducting therefrom any amount already deposited by tenant u/s 30(1) of U.P. Act No. XIII of 1972. In the present case no documentary evidence has been produced to show and substantiate, that provisions of Section 20(4) has been complied with as admittedly, no interest nor cost of the suit has been deposited. Section 20(4) of U.P. Act No. XIII of 1972 is beneficent provision for the tenant, and this is well settled, in the case of Atma Ram v. Shakuntla Rani 2005 (61) AIR 450 SC, if tenant wishes to take benefit of beneficial provision of Act, he must complied with precondition strictly. On account of deposit not being made, on the first date of hearing, before the Revisional Court, petitioners on 9.10.1997 moved an application mentioning therein that entire decretal amount is being sought to be deposited. Revisional court has proceeded to mention that there is no occasion to make deposit. Amount deposited u/s 30(1) of U.P. act No. XIII of 1972, if any was liable to be adjusted, while considering benefit of granting exemption u/s 20(4). Present case is admitted case of non compliance of Section 20(4), as such no reprive can be accorded to petitioners. The conduct of the petitioners have been noted in detail at page No. 37 and 38 of the papers book which is not being repeated, which shows that petitioners had one point programme that matter shall not be finalized whatsoever it may be. Once there was willful and deliberate attempt on the part of the petitioners to delay the proceeding by all means fair and foul, and categorical findings of fact have been returned that on the first date of hearing, provision of Section 20(4) of U.P. Act No. 13 of 1972 has not been complied with, as such there is no occasion to interfere with the order impugned.

Consequently, writ petition is dismissed. However, tenants shall vacate the premises in question within six months, and undertaking be furnished by them before Judge Small Causes Court within one month from today for handing over peaceful vacant possession to landlord. In case such an undertaking is not furnished in time, then landlord would be free to take execution proceeding.