U.P. Jal Nigam and Superintending Engineer vs Smt. Harnam Kaur Malik

Prafulla C. Pant, J.—This revision, preferred u/s 25 of the Provincial Small Cause Courts Act, 1887, is directed against the judgment and decree dated 22.02.1985, passed by Judge Small Cause Court/I Additional District Judge, Nainital, in S.C.C. Suit No. 06 of 1980, whereby said suit has been decreed against the defendants (present revisionists) for their ejectment from the premises in suit, and also for recovery of arrears of rent and mesne profits.

Heard learned Counsel for the parties and perused the lower court record.

Brief facts of the case are that, as per the plaint case, plaintiff is landlady of accommodation in suit and defendants are her tenant on rent at the rate of Rs. 1,100/- per month. The tenants had also liability to pay scavenging tax. It is pleaded by the plaintiff (respondent) that the defendants failed to pay rent w.e.f. 1st July 1978, whereon the defendants were served with notice on 21.05.1979, u/s 106 of the Transfer of Property Act, 1882, terminating their tenancy and also demanding to pay arrears of rent. It is alleged that the tenancy stood terminated on completion of one month of the service of notice w.e.f. 20th June 1979. However, the defendants failed to vacate the premises and to pay the arrears demanded. Hence, this suit was filed before the Judge Small Causes Court, Naintial.

The defendant (present revisionists) contested the suit, and filed their written statement, in which the rate of rent is disputed. It is pleaded by the defendants that the rate of rent agreed between the parties is Rs. 700/- per month. However, it is stated in the written statement that by mistake from January to June 1978, defendants paid rent at the rate of Rs. 1,100/- per month, but since plaintiff did not execute lease deed for the renewed tenancy, as such, she is entitled only to Rs. 700/- per month, as rent. It is further pleaded in the written statement that provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, are applicable to the accommodation in question. It is further stated that since the defendants have deposited the entire rent with costs and interest, as such, they are protected under Sub-section (4) of Section 20 of the aforesaid Act, from being evicted. It is alleged by the defendants that notice given by the plaintiff is illegal. It is further pleaded that the suit is bad for want of service u/s 80 of the Code of Civil Procedure, 1908 (hereinafter referred as C.P.C.).

The trial court, after recording the evidence and hearing the parties, found that the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972), as amended, are applicable to the accommodation in suit. The trial court further found that the rate of rent was Rs. 1,100/- per month, and not Rs. 700/-, as pleaded by the defendants. It further held that since the rent deposited by the defendants is short of the deposits required to be made under Sub-section (4) of Section 20 of the U.P. Act No. 13 of 1972, as such, they are not protected from the ejectment. Lastly, it is held that suit is not bad for want of notice u/s 80 of C.P.C. With these findings, the trial court decreed the suit for ejectment and also for the arrears of rent and the scavenging tax, vide its judgment and decree dated 22.02.1985, passed in S.C.C. suit No. 06 of 1980. Aggrieved by said judgment and decree, this revision was filed before the Allahabad High Court on 23.04.1985, where it was admitted on 17.05.1985. The revision is received by way of transfer from said Court to this Court, u/s 35 of the U.P. Re-organization Act, 2000, for its disposal.

Learned Counsel for the revisionists argued before this Court that the plaintiff cannot take benefit of his own wrong. In this connection, it is further submitted that since the plaintiff failed to execute lease deed for renewal of the tenancy, for continuing the same after the expiry of period of lease, on enhancement rent from Rs. 700/- per month to Rs. 1,100/- per month, as such, neither she can claim the rent at the rate of Rs. 1,100/- per month, nor the defendants (tenants) can be evicted from the premises on the ground of default of rent at the rate of Rs. 1,100/- per month.

Admittedly, defendants were inducted as tenant in the premises in suit, initially at Rs. 500/- per month, which was later on enhanced to Rs. 700/- per month, and after expiry of period of lease for fixed period, it was subject to renewal of the tenancy. Had there been no fixed period tenancy, the defendants would have continued to be tenant on the rent originally agreed, between the parties. Since, it was a fixed period tenancy, the defendants could not have continued as tenants in the premises after the expiry of the fixed period of lease. In the present case, it is also admitted to the defendants that for a certain period, after the expiry of the period mentioned in the lease deed, they paid rent at the rate of Rs. 1,100/- per month to the plaintiff, through cheques which was accepted by plainitff. In the circumstances, in the opinion of this Court, the trial court has committed no error of law in holding that the defendants became tenants (by conduct) of the plaintiff on rent at the rate of Rs. 1,100/- per month.

Since rent was payable at the rate of Rs. 1,100/- per month, for the purposes of protection under Sub-section (4) of Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the defendants were required to make deposit of due rent at that rate with costs and interest. The trial court has found that the rent deposited by the defendants on first date of hearing was much less than the amount required to be deposited. Mr. Alok Singh, learned Senior Advocate, appearing on behalf of the defendants/revisionists argued that the trial court has erred in law in not taking into account the rent paid by the defendants at the rate of Rs. 1,100/- per month since 01.01.1978 to 30.06.1978, which was accepted by the plaintiff. But the facts on record are not that simple. From the pleadings of the parties and evidence on record, it is also evident that after 1st July 1978, defendants while offering the rent at the rate of Rs. 700/- per month (when the lease deed for renewal not executed) adjusted more than Rs. 6,000/- by deducting the same treating it to have been paid in excess of the rent due. Since, Rs. 6,380.70 is admitted in written statement, to have been deducted by the defendants, as such, there is no question on the part of the trial court to treat the same paid, for the purposes of adding it to the amount deposited by the defendants u/s 20(4) of the Act (U.P. Act No. 13 of 1972) to save them from eviction.

It is also contended on behalf of the revisionists that suit is filed by plaintiff after about one and a half year of service of notice given u/s 106 of the Transfer of Property Act, 1882, as such, it amounts waiver of the notice and it cannot be said that the tenancy of the defendants stood terminated. On examination of the pleadings of the parties and evidence on record, this Court finds it true that suit has not been filed immediately after one month of service of notice, rather, it is filed after a period of more than one year. In the opinion of this Court, mere fact that the suit was instituted after one year of service of notice, by itself, is no ground to treat the notice waived, particularly, in view of the fact that evidence on record is clearly suggesting that matter of renewal of tenancy was under consideration, between the parties. The ground mentioned in Section 20(2)(a) of the Act No. 13 of 1972, i.e. default in payment of rent for four months, which was not paid within one month of service of notice, was already made out and is not shown to have been paid till the institution of suit, as such, it cannot be said that the notice served by the plaintiff stood waived.

Mr. B.C. Pande, learned Senior Advocate, appearing on behalf of the plaintiff/respondent drew attention of this Court to paragraph 21 of written statement which was added by amendment by the defendants before the trial court, and it is argued that since the defendants have denied the title of the landlady (plaintiff), as such, the suit for reliefs claimed by the plaintiff is, otherwise also, maintainable and the decree passed by the trial court for ejectment of the defendants and for payment of arrears of rent and mesne profits, cannot be interfered with.

For the reasons as discussed above, this Court does not find any illegality in the impugned judgment and decree, passed by the trial court. As such, the revision is liable to be dismissed.

Accordingly, the revision is dismissed. However, the defendants/revisionists (tenants) are allowed three months time, from today, to vacate the premises in suit, failing which the plaintiff/respondent shall be at liberty to get the decree executed. Costs easy.