JUDGMENT S.U. Khan, J.
1. This is tenant's writ petition arising out of S.C.C. Suit No. 135 of 1980 on the file of J.S.C.C., Muzaffarnagar, filed by landlady respondent No. 3 Smt. Anwari against tenant petitioner Nisar. J.S.C.C., Muzaffarnagar on 21.1.1985 decreed the suit for eviction and recovery of arrears of rent and damages for use and occupation pendente lite and future. However, the trial court decided the question of rate of rent in favour of the tenant. Landlady had asserted that the rate of rent was Rs. 75 per month while tenant asserted that it was only Rs. 5 per month. Against judgment and decree passed by the trial court two revisions were filed one by the tenant petitioner being S.C.C. Revision No. 15 of 1985 and the other by landlady respondent No. 3 being S.C.C. Revision No. 70 of 1985. In the revision filed by landlady grievance was made against that finding of the trial court through which instead of Rs. 75 per month rent had been determined to be Rs. 5 per month. Revisional court/Vth A.D.J., Muzaffarnagar, on 14.1.1988 dismissed both the revisions. This writ petition has been filed by the tenant against the aforesaid judgments, decree and order.
2. The first argument placed by learned Counsel for the petitioner is that notice of termination of the tenancy was not valid. On 4.7.2005, as well as 25.7.2005, learned Counsel for the petitioner was directed to file copy of the notice. However, learned Counsel for the petitioner states that his client could not get copy of the notice. Learned Counsel for the petitioner has argued that ground Nos. 1 and 2 of the writ petition relate to invalidity of the notice and as no counter-affidavit has been filed hence said ground must be taken to be correct.
3. Firstly, it is only a question of fact which under certain circumstances can be taken to be correct in the absence of denial through counter-affidavit and not question of law. Whether notice is valid or not can be decided only after perusing the notice. The party which asserts invalidity of the notice is duty bound to file copy of the notice. Validity of the notice cannot be decided on the basis of allegation in writ petition. Secondly, counter-affidavit in the writ petition is filed rebutting or admitting points of fact stated in the writ petition and no denial or admission is ever made in respect of ground of writ petition in the counter-affidavit. It is also important to note that the trial court framed five issues none of which related to validity of the notice meaning thereby that this question was not raised before the courts below.
4. The next argument of learned Counsel for the petitioner is that landlady did not examine herself, hence allegation of petitioner that he had paid rent till July, 1981, shall be taken to be correct. There is no requirement of law that plaintiff landlord or landlady shall necessarily examine himself or herself to prove his or her case. (Vide Ram Kubai v. H. D. Chandak ). Both the courts below recorded a finding of fact that rent had not been paid since August, 1979. There is no such error in the said finding which can warrant interference in exercise of writ jurisdiction.
5. The next argument of learned Counsel for the petitioner is that lower revisional court in its judgment on page 64 of the paper book held that tenant had paid rent till July, 1981, hence he was defaulter for only three months when notice was given, therefore, notice of demand was invalid (Admittedly U. P. Act No. 13 of 1972 was applicable to the building in dispute when the suit was filed and under Section 20(2)(a) default in order to be a ground of ejectment must be at least of four months at the time of giving notice). In this regard the revisional court has only noted that defendant himself admitted to be defaulter for at least three months. However, on that very page, i.e., page 64 of the paper book revisional court has recorded categorical finding that tenant was defaulter since August, 1979.
6. The last point argued by learned Counsel for the petitioner is that after recording the finding that rate of rent was Rs. 5 per month, trial court had no jurisdiction to award pendente lite or future damages at the rate of Rs. 40 per month. Learned Counsel for the petitioner is partly right in this regard. Till the date of decree for eviction damages at higher rate than the rent cannot be awarded. However, since the date of decree higher damages may be awarded (vide C.K. Bail v. J.S. Thakur ).
7. The Judges of Small Cause Courts shall be very particular in awarding reasonable future damages for use and occupation in case such a prayer has been made in the plaint, while passing decree of eviction of tenant in a suit filed by landlord. There is a great lacuna in U. P. Rent Regulation Act (U. P. Apt No. 13 of 1972) inasmuch as it does not provide for enhancement of rent. Supreme Court in M.V. Acharya v. State of Maharashtra , has very urnestly urged the Legislature to make such provision after noting grave evil consequences resulting from omission of such a provision in Rent Control Acts of different States. On the basis of this judgment I made a similar recommendation to the Legislature of U. P. in the case of Bal Kishan v. A.D.J. 2003 (4) AWC 3183 : 2003 (2) ARC 545, but of no avail. In case of old tenancies the rent becomes so inadequate by passage of time that it remains virtually no rent. In view of this situation it is all the more necessary to award future damages at the rate of rent prevalent for similar buildings at the time of passing of decree of ejectment, provided that it is pleaded & asked for in the plaint and evidence is led to that effect.
8. Accordingly judgments and orders passed by both the courts below are modified to the extent that until 21.1.1985 the date on which suit was decreed by J.S.C.C. petitioner shall be liable to pay damages only at the rate of Rs. 5 per month. Thereafter he shall pay damages at the rate of Rs. 40 per month. Decree and order of eviction against the petitioner is maintained.
9. Petitioner is granted six months time to vacate provided that within one month from today he files an undertaking before the J.S.C.C. to the effect that on or before 9.2.2006, he will willingly vacate and hand over possession of property in dispute to landlady respondent No. 3. For this period of six months petitioner shall deposit Rs. 3,000 as damages for use and occupation (at the rate of Rs. 500 per month). The said amount when deposited shall at once be paid to landlady respondent No. 3. Within one month from today tenant petitioner shall also deposit the entire decreetal amount due till date for immediate payment to the landlady respondent No. 3. In case of default in compliance with any of these conditions tenant petitioner shall be evicted after one month through process of the Court.
10. Writ petition is accordingly disposed of.