JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed with a prayer for quashing the impugned judgment and order dated 31.1.2002 passed by the Additional District Judge, Court No. 15, Mecrul in S.C.C. Revision No. 38 of 2000, Dinesh Kumar v. Smt. Krishna Rani and Anr. and also against the judgment and order dated 27.1.2000 passed by the Additional Judge Small Causes Court, Meerut, respondent No. 2 in S.C.C. Case No. 133 of 1997, Smt. Krishna Rani and Anr. v. Dinesh Kumar.
3. Smt. Krishna Rani and Sri Raisuddin plaintiff-respondents No. 3 and 4 filed S.C.C. Case No. 133 of 1997 against the petitioner for arrears of rent since 15.11.89 and ejectment from the shop No. 295/2, Sector-2, Scheme No. 7, Shastri Nagar, Meerut (hereinafter referred as the house in question) which was constructed in the year 1986. The house tax of the house in question was decided on 1.4.1992 for the first time and the shop in question was given on rent to the petitioner allegedly on 5.4.1989.
4. The house in question was for economically weaker sections and was purchased from U.P. Avas Evam Vikas Parishad by Sri Raisuddin allegedly in fully constructed position under the allotment order dated 22.3.1984 and was thereafter sold to Smt. Krishna Rani plaintiff No. 1 through registered agreement deed dated 11.6.1984.
5. Suit No. 35 of 1994 was filed by Sri Raisuddin interalia, that shop in question is of 1995, hence the provisions of the Rent Act are not applicable. The case of Sri Raisuddin plaintiff No. 2 in suit No. 35 of 1994 was that the shop in question was of 1995 and the relationship of landlord and tenant was specifically denied as Smt. Krishna Rani was stated to be the landlord as such subsequent suit was filed by Smt. Krishna Rani and Sri Raisuddin being suit No. 133 of 1997.
6. The counsel for the petitioner contends that in para 4 of the plaint the construction of shop in question is slated to be of year 1986 and assessed to house tax with effect from 1.4.1992. He submits that it was claimed by the plaintiffs that the period of limitation is to be counted from the date of assessment of house tax and not from the date of construction of shop, although it was admitted by her in her plaint that the construction of shop in question was of the year 1986.
7. It is urged by the counsel for the petitioner that the Additional Judge Small Causes Court did not consider the admission of the plaint and incorrectly held that the whole rent has not been deposited on the first date of hearing. It is also urged that the trial Court wrongly held that the service of notice was sufficient by misreading and misinterpreting the evidence on record regarding absence of petitioner from the shop in dispute since 22.4.1997 to 27.4.1997 and that earlier suit filed by Sri Raisuddin as not being filed by Smt. Krishna Rani although it was on the same facts and grounds and the relief.
8. Aggrieved by the judgment and order dated 27.1.2000 of the Additional Judge Small Causes Court, Meerut the petitioner filed revision before the District Judge, Meerut wherein it has been stated that the petitioner specifically pressed ground regarding service on the petitioner, applicability of the Rent Act and the Payment of rent on the first date of hearing apart from taking ground of admission of construction of the shop in question in 1986.
9. The Revisional Court also dismissed the revision filed by the petitioner confirming the judgment of the Court below regarding non-applicability of the Rent Act on the basis of house tax being fixed for the first time on 1.4.92.
10. Aggrieved by the order of the Revisional Court the petitioner has come up in this writ petition on the grounds that both the Courts below have failed to appreciate and consider that the shop in question could not fetch more than of Rs. 3,00/- as rent per month which the petitioner claims that he was always ready and willing to pay to the landlady. The impugned judgment and orders are also assailed on the ground that prima facie the claim of the plaintiffs that the tenant is in arrears of rent since 5.4.89 was wrong and illegal as per their own admission in para-5 of earlier suit in which the petitioner was stated to be in arrears of rent since 5.8.1992.
11. Per contra, the counsel for the respondents submits that the petitioner has admitted in paragraph 6 of the writ petition the first date of assessment as 1.4.92 and that even if building was occupied earlier, the first date of assessment is the crucial date. The counsel for the respondents then submits that no interference is required in writ if the rent is not deposited during the pendency of the suit. In this regard he has relied upon paragraph 7 in , Mariyam Begum v. Basheerunnisa Begum and Ors. and paragraph 6 in , Sugarbai M. Siddiq and Ors. v. Ramesh S. Hankare (Dead) by LRS.
12. In Mariyam Begum (supra) it has been held that non-payment of rent during pendency of interim application (under statutory provision dealing with amount of rent mandatorily payable by tenant as condition for receiving permission to contest eviction petition) amount to willful default. The Apex Cowl in paragraph 7 of its judgment has held that:
It is this dictum which is also relied upon by the learned Counsel to contend that the default in payment of rent is not a wilful default. The learned Counsel submits that she is an illiterate lady and on account of ignorance she could not pay the rent in time; she believed that as IA No. 11 was pending in the Court, she could pay the rent only when the IA is decided. We are unable to accept this contention. When the IA was pending in the Court, she was represented by an advocate in all the three cases noted above. She had the advantage of seeking advice from her advocate appearing on her behalf, if she had any doubt. This shows that there has been indifference, rather supine indifference, to the obligation of the payment of rent to the landlady. In this view of the matter we do not find any merit in the appeal. It is accordingly dismissed.
13. Similary in Sugrabai M. Siddiq and Ors. v. Ramesh S. Hankare it has been held that no scope for interference is made out where there is no material on record to show that payment of arrears was made or sent within the lime period stipulated by statute. The Apex Court in paragraph 6 has held that There can be little doubt that an application under Article 227 of the Constitution, the High Court has to see whether the lower court/tribunal has jurisdiction to deal with the matter and if so, whether the impugned order is vitiated by procedural irregularity : in other words, the Court is concerned not with the decision but with the decision-making process. On this ground alone the order of the High Court is liable to be set aside.
14. In this regard the counsel for the respondents has referred to the findings of the trial Court regarding default even on first date of hearing. Reference in this regard has been made to paragraph 8 of the case R.C. Tamrakar and Anr. v. Nidi Lekha wherein it has been held that the benefit of Section 20(4) of the Act can not be given to the tenant regarding default on the first date of hearing even if the rents are deposited under Section 30 of the Act. It is also stated that as per second proviso of Section (2) Sub-section (2) of the Act, the Act would apply to the building in dispute in the year 2026, i.e. after 40 years of the construction of building as the petitioner himself has admitted in para 6 of the writ petition that the construction was made in the year 1986, hence the ruling cited by the counsel for the petitioner regarding limitation of 12 years for filing the suit is of no avail. The counsel for the respondents has relied upon paragraphs 4 and 5 of 1996(1) ARC-48, Majid Ali v. Smt. Shyama Mishra in which it has been held that where defence of tenant in suit for arrears of rent and eviction that Act is applicable and he is entitled to benefit of Section 20(4). The Court below found that first assessment of building was of 1987, Thus, Act was not applicable, and hence there is no question of giving benefit of Section 20(4) of the Act to him.
15. It is then urged that principle of res-judicata will apply only when parties to issue and controversy are the same and any issue must be decided in the earlier suit. He has relied upon Indian Bank v. Maharastra Slate Co-operative Marketing Federation Ltd. and submits that in earlier suit No. 1935 of 1994 the plaintiff was Raisuddin whereas in the present suit No. 133 of 1997, the plaintiff is Krishna Rani (present landlord) who was not the plaintiff in the earlier suit and the parties are not the same even though Raisuddin might have joined himself in the present suit and the relief claimed by Raisuddin in the earlier suit would come in the ambit but not in the present case as claimed by the petitioner. As in the present case, the suit property i.e. shop is also different from the earlier suit. He has urged that earlier suit No. 1935 of 1994 was filed for another shop whereas the present suit No. 133 of 1997 was filed For shop No. 295/2, as such in view of explanation 1 of Section 11 of the Code of Civil Procedure the "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
16. It is also urged that the petitioner has not paid any amount/rent /damages to the respondent-landlord since August, 1992 as admitted by the petitioner in paragraph 45 of the written statement filed before the trial Court, hence he is not entitled for any relief under Article 226 of the Constitution as has been held in paragraphs 2,3,5 to 11 reported in 2006(2) ARC-258, Hoti Lal Sharma v. SDM.
17. It is lastly urged that the petitioner has not filed any rejoinder affidavit and has not controverted the facts mentioned in the counter affidavit which will amount to admission. It is stressed in the present case that time was repeatedly granted for filing rejoinder affidavit and even stop order was passed but he did not file rejoinder affidavit as he is enjoying the stay order.
18. After hearing the counsel for the parties 1 am of the view that when the firs! date of assessment is available the date of first letting out of building can not be taken into consideration as has been held in paragraphs 5,6 and 7 in 1996 (I) ARC-348, Punjab National Bank, Ghaziabad v. Dr. Rajendra Nath Azad, paragraph 2, 2001(2) ARC-282, Girish Chandra Goyal v. Bimla Devi and Ors. and paragraph 7 of 1998(2) ARC-323, Phool Singh v. Additional Judge, Small Causes Court, Bareilly and Ors. In the instant case, the building assessed towards house tax on 1.4.1992 which is admitted fact, the Court below has come to the conclusion that it is the aforesaid date from which the Act became applicable.
19. The tenant has not paid any amount to the landlord since 1992 although has defaulted in payment on the first date of hearing as such he is not entitled to any interference by this Court, The principle of res-judicate in so far as in the case of Krishna Rani is concerned, it would not apply as she was not made party to the earlier suit filed by Raisuddin in view of Indian Bank v. Maharastra State Cooperative Marketing Federation Ltd. Even other wise, the suit property is different, hence explanation 1 of 11 C.P.C. would denote a suit which has been decided prior to the suit in question and whether or not it was instituted prior thereto.
20. The averments made in the counter affidavit have not been denied or rebutted by filing rejoinder affidavit inspite of several opportunities granted to the petitioner, hence they are to be taken as correct in view of 2004(2) L.C.D. 1445, Ravindra Pratap Yadav alias Mahajan v. State of U.P. and Ors. The Court has held that-
Various other allegations have been made in the writ petition but in our opinion it is not necessary for us to go into same in view of the allegations in the counter affidavit of the Nagar Nigam, Allahabad, respondent No. 4 to which no rejoinder affidavit has been filed and hence these allegations in the counter affidavit have to be treated as correct.
21. The same view has been followed in 2004(2) ESC-681 Sharda Ram v. State of U.P.
22. For the reasons stated above, the writ petition is dismissed, No order as to costs.