This is a revision preferred by a tenant under Section 25 of the Provincial Small Cause Courts Act, 1887 against the judgment and order dated 01st March, 2013 and decree dated 07th March, 2013 passed by the Judge, Small Cause Court/Additional District Judge, Court No. 7, Kanpur Nagar, whereby Small Cause Suit No. 160 of 2009 (Smt. Shanti Devi Shukla v. Sri Awadh Bihari Tripathi) filed by the landlady-respondent has been decreed by directing the tenant-revisionist to vacate the suit premises within thirty days and to pay the arrears of rent of Rs.70,066/- and damages at the rate of Rs.2,000/- per month since 28th September, 2009 till the actual physical possession is handed over to the landlady.
The essential facts are that the respondent is landlady/owner of Premises No. 133/16, Transport Nagar, Kanpur Nagar. The revisionist is tenant in a shop situated in the said premises at the rate of Rs.2,000/- per month excluding the tax. Said shop was let out in the year 1986 vide a lease agreement dated 16th December, 1986 for a period of 11 months. The tenancy started from 15th December, 1986 and came to an end on 14th November, 1987. However, in spite of expiry of said period of agreement, the tenant did not vacate the suit premises. Thereafter at the instance of the landlady the rent was enhanced from Rs.1,000/- to Rs.2,000/- per month in terms of Clause-14 of the agreement. It is stated that the tenant has deposited the rent from 16th November, 1987 to 31st December, 1990 at the rate of Rs.2,000/- per month, which comes to a total sum of Rs.75,000/-, and the landlady issued a receipt of the said amount on 04th December, 1990. It is further stated that when the landlady asked the tenant to pay 18% tax in addition to the rent in terms of the agreement since January, 2001, the tenant refused to pay the said tax and also stopped paying rent since January, 2001. When after several requests the tenant did not pay the rent and the tax, the landlady on 24th August, 2009 sent a notice to the tenant determining his tenancy and made a demand of arrears of rent. Vide said notice the tenant was asked to vacate the premises in terms of the notice. The said notice was served on the tenant on 28th August, 2009 but neither he did pay arrears of rent, as demanded in the notice, nor did he vacate the premises. The tenant had sent a reply to the said notice on 19th September, 2009, wherein he disputed the rate of rent. According to the tenant, agreed rent was Rs.1,000/- per month and not Rs.2,000/- per month, as claimed by the landlady in her notice.
Against this background, the landlady-respondent instituted a suit for eviction and arrears of rent in the Court of Judge, Small Cause, Kanpur Nagar which was registered as Small Cause Suit No. 160 of 2009 (Smt. Shanti Devi v. Sri Awadh Bihari Tripathi). The revisionist-tenant contested the suit and filed his written statement and denied the claim made by the landlady.
The Court below framed six issues for determination which are as under:
(i) Whether rate of rent is Rs.2000/- per month excluding the taxes as claimed by the plaintiff-landlady or is Rs.1000/- including taxes per month as claimed by the defendant-tenant?
(ii) Whether defendant is entitled to get the benefits of the provisions of Section 20(4) of U.P. Act No. 13 of 1972?
(iii) Whether the defence of the defendant is liable to be struck off for non-compliance of Order XV Rule 5(2) of the Code of Civil Procedure?
(iv) Whether the defendant has committed default in payment of rent from 1.1.2001 and he is in arrears of rent for more than 4 months?
(v) Whether the suit filed by the plaintiff without consent of the co-owner is not maintainable?
(vi) Whether any other relief can be granted to the plaintiff?
The Issue No. 1 was decided in favour of the landlady and it was found that the rate of rent was Rs.2000/- per month and not Rs.1000/- per month, as claimed by the tenant. As regards Issue No. 2, the Court below recorded a finding that the tenant has not deposited the entire rent and cost of the suit in terms of Section 20(4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972). The tenant is not entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972, as the tenant-revisionist has failed to deposit the entire arrears of rent on the first date of hearing of the suit. In addition to above, he has not deposited the entire arrears of the rent and the expenses. Issue No. 3, which deals with striking off the defence of the tenant, was decided in favour of the tenant and the Court below refused to strike off the defence of the landlady on the ground that the tenant has made substantial compliance of the deposits of the rent. With regard to Issue No. 4 the Court below was satisfied that the tenant has made default and in spite of notice demanding the arrears of rent, it was not paid for more than four months. Thus, the said issue was decided against the tenant. Issue No. 5 was in respect of maintainability of the suit. It was alleged by the tenant that all the landlords have not joined the suit but the Court below has decided the said issue in favour of the landlady. Accordingly, the Court below vide impugned judgment and decree decreed the suit of the landlady-respondent.
I have heard Sri Radha Kant Ojha, learned Senior Advocate, assisted by Sri Satyendra Chandra Tripathi, learned Counsel for the tenant-revisionist, and Sri B.K. Srivastava, learned Senior Advocate, assisted by Sri C.K. Singh and Sri Dhiraj Srivastava, learned Counsel for the landlady-respondent.
Sri Radha Kant Ojha, learned Senior Counsel appearing for the tenant-revisionist, submits that the tenant has deposited the entire rent on the first date of hearing. In this case, since the issues have been framed, there cannot be the first date of hearing before framing of the issues. He submits that the Court below has illegally accepted that the first date of hearing is 15th June, 2010 when the revisionist had filed his written statement. The Court below has failed to understand that it is well settled that the first date of hearing will be the date when the Court applies its mind and it would not be prior to the date of filing of the written statement, where the issues were not framed. If the issues are framed, then that will be the date of first hearing. He further submits that in the present case written statement was filed on 15th June, 2010 and thereafter the next date fixed was 15th July, 2010. On that date, the Court below has granted permission to the revisionist-tenant to deposit the arrears of rent under Section 20(4) of the U.P. Act No. 13 of 1972. Thus, prior to 15th July, 2010 the Court below had not applied its mind, therefore, the revisionist-tenant was entitled to get benefit of Section 20(4) of the U.P. Act No. 13 of 1972. He has placed reliance on a judgment of the Supreme Court in the case of Mam Chand Pal v. Smt. Shanti Agarwal, 2002 (1) ARC 370.
Sri Ojha further contended that the agreement dated 16th December, 1986 was an unregistered document, therefore, the Court below has illegally placed reliance on the said agreement. He has further urged that the landlady has filed a suit under Section 21 of the U.P. Act No. 13 of 1972, therefore, it is evident that the provisions of the U.P. Act No. 13 of 1972 are applicable to the suit premises. Sri Ojha has also contended that the finding of the Court below refusing to give benefit of Section 20(4) of the U.P. Act No. 13 of 1972 on the ground that the tenant has failed to deposit the entire rent and the expenses, is erroneous and against the evidence on record.
Sri B.K. Srivastava, learned Senior Counsel appearing for the landlady-respondent, has submitted that the provisions of the U.P. Act No. 13 of 1972 are not applicable to the premises in dispute. The tenancy has rightly been determined by the landlady-respondent. He further submitted that in the present case the suit was filed on 27th October, 2009 and in the summons 02nd December, 2009 was fixed for written statement/hearing. The tenant had refused to accept the summons. Thus, the publication was made on 03rd February, 2010. In pursuance thereof, the tenant appeared for the first time before the Court below on 24th February, 2010 and moved an application for getting copy of the plaint and other papers. He sought adjournments on 19th March, 2010, 02nd April, 2010, 31st May, 2010 and 11th June, 2010 and he filed his written statement on 15th June, 2010. The tenant-revisionist moved an application on 15th July, 2010, being Paper No. 22-Ga(2), for passing tender to make deposit under Section 20(4) of the U.P. Act No. 13 of 1972 on which 16th July, 2010 was fixed. On 16th July, 2010 the matter was adjourned and on 21st July, 2010 the tenant-revisionist deposited a sum of Rs.1,90,000/-. From the aforesaid chronological dates, learned Senior Counsel appearing for the landlady-respondent sought to argue that the tenant-revisionist has failed to deposit the amount on the first date of hearing, which in the present case was on 15th June, 2010, when the Court had applied its mind. Therefore, the Court below has rightly rejected the claim of the tenant-revisionist to give benefit of Section 20(4) of the U.P. Act No. 13 of 1972.
Sri B.K. Srivastava has further submitted that in addition to above, the tenant-revisionist did not deposit the entire arrears of rent, tax, interest, court fee. According to him, the arrears of rent was Rs.2,28,000/-. The tenant has deposited only Rs.1,14,000/-. Thus, there was a shortfall of Rs.1,14,000/-. The tax was Rs.41,041/-, whereas the tenant deposited Rs.15,390/-. Under the head of interest Rs.58,995/- was due, out of which he has deposited only Rs.49,162.50. The court fee was Rs.10,996/-, out of which he had deposited Rs.5,196.50. Thus, the tenant ought to have deposited a total sum of Rs.3,39,031/- but he deposited only Rs.1,90,000/-. Therefore, there was a huge shortfall of Rs.1,55,282/-. For this reason also, he was not entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972. He further submitted that under Section 25 of the Provincial Small Cause Courts Act this Court has limited jurisdiction and if the finding is not perverse, this Court should not interfere under the revisional jurisdiction under Section 25.
In support of his submissions, Sri Srivastava has relied upon several decisions of the Supreme Court in Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC 2525; Advaita Nand v. Judge, Small Causes Court, Meerut and others, 1995 (1) ARC 563; Smt. Sudershan Devi and another v. Smt. Sushila Devi and another, 1999 (4) AWC 3484 (SC); and, Ashok Kumar and others v. Rishi Ram and others, 2002 (2) ARC 160, and of this Court in Saadat Ali v. J.S.C.C., Moradabad and others, 2006 (2) ARC 208; Commercial Auto Sales (P) Ltd. v. Auto Sales (Properties), 2011 (5) AWC 4405; Rashid v. Kailash Chand, 2012 (4) AWC 3374; Om Prakash v. Sri Anil Kumar, 2013 (1) ARC 335; Mahesh Chandra and others v. Ashwani Kumar, 2013 (2) AWC 1509; and Mela Ram (since deceased and substituted by legal heirs) v. Arun Kumar Agrawal, 2014 (1) ARC 692.
I have considered the rival submissions advanced by the learned Counsel appearing for the parties and perused the records.
Before adverting to the issue whether the revisionist-tenant is entitled to the benefit of Section 20 (4) of the U.P. Act No. 13 of 1972 or not, it is necessary to examine whether the rent of the tenanted premises was Rs.2,000/- per month, as claimed by the landlady, or Rs.1,000/-, as claimed by the tenant-revisionist. The landlady has relied upon an agreement dated 16th December, 1986, whereby the shop was let out to the revisionist-tenant at the rate of Rs.1,000/- per month. Clause-14 of the said agreement provides that in case after expiry of the eleven months the tenant does not vacate the premises and he continues in possession, in that event the rent shall be Rs.2,000/- per month. The revisionist-tenant has denied this agreement. A copy of the said agreement is on the record. The Court below has recorded a finding that this agreement bears the signature of the tenant and he did not file Handwriting Expert opinion denying his signature. Thus, I do not find any error in the finding of the Court below that there is existence of an agreement between the parties.
The landlady has also filed counter-foil of the rent, which has been duly proved by her witness. From the same counter-foil it was noticed by the Court below that the receipt of previous tenants and other tenants have also been issued. On the basis of the documentary evidence as well as statement of P.W.-1 Sri Rajesh Kumar Shukla, it has been established by the landlady that the rate of rent was Rs.2,000/- per month. The Court below has elaborately analysed the evidence while recording its finding on this point i.e. Issue No.1. Learned Senior Counsel appearing for the revisionist-tenant Sri Ojha has failed to point out any error in the finding of fact recorded by the Court, therefore, I find that the finding recorded by the Court below that the rent was Rs.2,000/- per month does not suffer from any illegality.
It is submitted by Sri Ojha that the first date of hearing in the present case shall be the date when the Court below has framed the issues. In the cases of the small cause suits, the issue about the first date of hearing is no more res integra.
The Supreme Court in the case of Siraj Ahmad Siddiqui (supra) has held that the first date of hearing is the date on which the Court proposes to apply its mind to determine the point in controversy between the parties to the suit and to frame the issues, if necessary. The Court held that "when time is fixed by the court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the service of the summons, and compliance with the provisions of Section 20(4) of the said Act must be judged upon the basis of the dates so fixed". In respect of Section 20 (4) of the U.P. Act No. 13 of 1972 the Court held that the date for filing of the written statement and hearing shall be the first date of hearing. The aforesaid ratio was explained by the Supreme Court in the case of Advaita Nand (supra). The Court held that the first date of hearing shall be the date when the time is fixed by the Court for filing the written statement and hearing. Same view has been taken by this Court also in the case of Chotti v. 13th Additional District and Sessions Judge, Agra and others, 1999 (2) ARC 71. This Court after considering the judgment of the Supreme Court in respect of the Small Cause Courts Act held that the first date of hearing shall be the date for appearance as well as final hearing. Applying the said principle in the present case, the tenant had filed his written statement on 15th June, 2010 and submitted his tender on 15th July, 2010, therefore, I do not find any error in the finding of the Court below that the tenant has deposited the arrears of rent after the first date of hearing. Thus, he was not entitled for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972.
As regards the submission of Sri Ojha that the tenant has deposited the entire rent and the finding of the Court below that there was a shortfall of amount is incorrect, this Court finds that the finding of the Court below that the rent is Rs.2,000/- per month has been found to be correct in the earlier part of this judgment. The tenant has deposited the rent at the rate of Rs.1,000/- per month. Thus, there is a shortfall of Rs.1,58,000/- and for this reason also, his claim for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972 has rightly been rejected by the Court below. The finding of the Court below that the tenant has made a default for more than four months, is a finding of fact. Learned Senior Counsel appearing for the revisionist-tenant could not satisfy the Court that the said finding is perverse. The Court below has noticed the fact that the statement of D.W.-1 Awadh Bihari that after receiving the notice he had sent the rent of the months of October & November, 2009 by money-order, was not correct as no receipt of the money-order was filed before the Court below. Therefore, said fact has been rightly ignored by the Court below. The landlady has filed a suit under Section 28(A) of the U.P. Act No. 13 of 1972. Section 20(2)(A) of the U.P. Act No. 13 of 1972 provides that if a tenant is in arrears for more than four months and he fails to deposit the rent in spite of the notice, then he shall be liable for eviction. For the reasons stated above, the finding of the Court below on Issue No. 4 also does not suffer from any error.
The revisional jurisdiction of this Court under Section 25 of the Provincial Small Cause Courts Act, 1887 is limited. The Court can interfere under this section only when the finding recorded by the Court below is totally perverse and is based on no evidence. Learned counsel for the revisionist-tenant has failed to point out any perversity in the order of the Court below, as discussed above. The findings of the Court below on various points are based on documentary as well as oral evidence. It has not been pointed out that the Court below has ignored any important documentary evidence filed by the tenant-revisionist or it has taken into consider any fact, which was not on the record.
After careful consideration of the facts and circumstances of the case, I am of the view that the revision lacks merit and is liable to be dismissed. It is, accordingly, dismissed.
Considering the facts and circumstances of the case, the tenant-revisionist is granted three months' time to vacate the premises in question on the following conditions:
(i) The revisionist shall file an undertaking within one month from today before the Judge, Small Cause Court, Kanpur Nagar that on or before the expiry of the three months he will handover peaceful possession to the landlady-respondent and shall not create any third party interest in any manner.
(ii) For the period of three months, which has been granted to him to vacate the premises, he shall pay damages at the rate of Rs.2,000/- per month for the use of accommodation.
(iii) In case of default in compliance of any of the conditions, the interim order shall stand vacated.
No order as to costs.
Order Date :- 21st November, 2014.
SKT/-
Hon'ble Pradeep Kumar Singh Baghel,J.
The revision is dismissed.
For order, see my order of the date passed on the separate sheets (ten pages).
Dt.- 21st November, 2014.
SKT/-