These are two connected writ petitions between the same parties based on same set of facts raising common question of law, hence, have been heard together and are being disposed of by this common judgment.
Facts giving rise to the dispute are as under :
Respondent-landlord filed two SCC suit numbered as 4 and 5 of 2010 for recvoery of arrears of rent and ejectment on the allegation that the tenant-petitiner was in arrears of rent and tenancy was terminated vide notice dated 22-5-2010, which was duly served on 24-5-2010. The two suits were in respect of two shops situated in Mohall Khushimal district Pilibhit and were in the tenancy of the petitioner. The suits were contested by the petitioner by filing written statement alleging that the land-respondent was not deliberately accepting the rent. It was further stated that rent for the period 01-04-2008 to 31-07-2008 was tendered to the landlord by means of a money order dated 22-08-2008 but it was refused and thereafter, the rent of the two shops was deposited in misc. case nos. 142 of 2008 and 143 of 2008. It was also alleged that on receipt of notice the entire rent for the period 01-04-2008 onwards amounting to Rs.1645/- for one shop and Rs. 1495/- for another shop was tendered by money order dated 14-06-2010, which was again refused. The tenant-petitioner also claimed benefit of Section 20(4) of U.P. Act No. XIII of 1972 (hereinafter referred to as the 'Act') alleging that the alleged entire arrears including the other amount contemplated have been deposited on 23-9-2010.
The Judge, Small Causes Court vide two separate judgment and decree dated 23-9-2012 dismissed both the suits.
The respondent-landlord challenged the judgments passed by the Judge, Small Causes Court by filing two revisions, which were numbered as SCC Revision No. 7 of 2012 and 8 of 2012.
Revisional Court vide separate judgment dated 28-01-2013 allowed the revision and set aside the judgment of the Small causes Court and decreed the suit and directed ejectment of the tenant-petitioner. Aggrived by the said order, two writ petitions have been filed.
Judge, Small Causes Court recorded a finding that rent was tendered to the respondent-landlord by money order dated 14-6-2010 and again on 28-6-2010, as such, there was no default in payment of rent and the notice was invalid and consequently, the suit is liable to be dismissed. Small Causes Court further held that there was no occasion to consider the question whether tenant was entitled to any benefit under Section 20(4) of the Act as the said issue did not arise inasmuch qw the tenant was not in any arrears. The revisional court, however, reversed the finding of the Small Causes Court on the ground that the cost imposed upon the tenant-petitioner before filing the written statement was not included in the deposit made on the first date of hearing and thus the he was a defaulter and not entitled to be extended the benefit under Section 20(4) of the Act. The finding of the Small Causes Court that since the rent tendered by money order, even though it was returned back, was a valid tender and the tenant was not in arrears, was also set aside by the revisional court holding that since the receipts of money orders produced in evidence did not bear the complete address of the tenant and it only recorded ''Rs.1495 Rajendra Prasad Pilibhit'' and in the absence of the complete address, it cannot be presumed that it was sent on the correct address of the landlord and was not a valid tender.
Learned counsel for the petitioner submitted that the revisional court has committed a manifest error in law in reapprising the evidence while exercising the jurisdiction under Section 25 of the Provincial Small Cause Courts Act, which is not permissible. It has next been submitted that the revisional court has wrongly and illegally set aside the findings of the Small Causes Court that rent was tendered and there was no arrears, by reassessing the evidence and thus the judgment is bad in law. Learned counsel for the petitioner next contended that the entire amount was deposited by the tenant on 23-09-2010 on the first date of hearing and thus was protected in view of Section 20(4) of the Act and the revisional court has wrongly and illegally held that non deposit of cost of Rs.150/- imposed till the filing of the written statement will disentitle him to the benefit of Section 20(4) of the Act.
In reply, Sri Ravi Kant, learned Senior Advocate appearing for the respondent submitted that since the finding of the trial court that rent was tendered by money order and as such, the tenant was not in arrears was based on total misreading of evidence and thus the revisional court, after looking into the evidence, set aside the finding and the same does not amount to reasessment of evidence as suggested by learned counsel for the tenant-petitioner. He further submitted that the tenant entered appearance before the trial court on 23-09-2010 and sought permission to deposit the rent and other expenses through challan, which was allowed by the court and 18-10-2010 was fixed for filing of written statement. However, no written statement was filed and in the meantime, 18-10-2010, 1-11-2010 and 16-11-2010 were fixed. On the said dates the costs were imposed total amounting to Rs.150/-. He further submitted that the written statement was filed on 08-12-2012 but the cost imposed on various dates were neither deposited nor paid to the counsel of the respondent-landlord and thus the revisional court rightly held that tenant-petitioner was not entitled to be extended the benefit under Section 20(4) of the Act.
I have considered the argument advanced by learned counsel for the parties and perused the record.
Before the Judge, Small Causes Court the receipts of money order were produced in evidence. The money order amounting to Rs.1495/- towards outstanding rent of one shop was returned back with the postal endorsement that "Addressee was out of station and was not avilable and it was not known when he will come back". Other money order amounting to Rs.1645/- for rent of the other shop, the postal department's endorsement was "on inquiry it was found that the addressee has gone to Haridwar and resides there and it is not known when he will come back and despite inquiry the address of Haridwar was not informed". In cross-examination P.W.1 admitted that he is a permanent resident of Mohalla Khushimall in district Pilibhit and often goes to Haridwar.
On the basis of the aforesaid evidence, the Judge, Small Causes Court recorded a finding that rent was tendered to the landlord through money order on his correct address and since it was returned back the tenant cannot be said to be in arreas of rent. The revisiional court reversed the finding of the Small Causes Court relying upon paper nos. 64Ga/1 and 64Ga/2, which were money order receipts, on the ground that only the name of the landlord and Mohalla Khushimall is mentioned and neither the father's name nor house number is mentioned and as such, it cannot be held that rent was tendered through money order at the correct address.
The revisional court reversed the findings of the Small Causes Court only on the ground that address mentioned in the money order did not either record the house number or the father's name of the landlord and as such, it cannot be presumed that it was sent to a correct address. The finding of the trial court that rent was tendered through money order at the correct address was also based on the fact that the landlord himself has mentioned same address in the notice to the tenant and also in the plaint and thus there was no dispute with regard to his address. The revisional court failed to take into account this fact and merely on the basis of surmises and conjectures held that since the address did not contain house number and parentage of the landlord, as such, it cannot be held that rent was tendered at the correct address.
In so far as the delivery of money order is concerned, the same was returned with the postal department remarks that the addressee was not available and had gone to Haridwar and his Haridwar address was not disclosed. In his cross-examination, the landlord admitted the fact that he is a resident of Mohalla Khushimall, district Pilibhit and very often goes to Haridwar. Even in his examination-in-chief and cross examination, the landlord never stated this fact that money order was sent to an incorrect and incompete address. He also did not disclose any house number and thus the finding of the trial court in this regard cannot be faulted with. The revisional court merely on the basis of the surmises and conjectures and without considering the evidence, which formed the basis the findings of Judge, Small Causes Court upset the same on a non-existant ground that the address was incomplete as the house number and parentage was not mentioned in the receipts and thus the money order was not sent to correct address and cannot be held to be a valid tender. The findings of the revisional court in this regard are vitiated on account of non-consideration of material evidence and based on misreading of evidence and thus are not liable to be sustained.
Judicial notice can also be taken of the fact that normally the Post office while issuing receipts for money order, receipts etc. does not record the complete address and only the name of addressee and district is recorded. The revisional court failed to notice that money order coupons which were retained and on record of the case recorded complete and correct address of the landlord.
Under Section 20(2)(a) suit for eviction on the ground of default may be filed in case the tenant is in arrears of rent for four or more months and has failed to pay the same inspite of notice of demand. Tender of rent through money order sent by the tenant at the address of the landlord is tender of rent bringing him out of the definition of 'defaulter' and the suit cannot be decreed on the ground of default. In case the rent is either refused by the landlord or is not received by him due to some technical reason such as his non-availability at the address except in cases where it has not been sent at the correct address, the tenant cannot be held to be in arrears even though the rent may remain unpaid.
Once it is found that the outstanding rent was validly tendered by the tenant he cannot be held to be a defaulter even though the rent was not received by the landlord. The admitted facts go to show that notice to terminate tenancy and the demanding arrears of rent was sent by the landlord on 22-05-2010 which was served on the tenant on 24-5-2010. The notice provided one month period to deposit rent. The tenant tendered the rent through money orders on 14-06-2010 and thus the demanded rent tendered was within the notice period of one month and he cannot be said to be in arrears of rent and thus the tenancy would not stand terminated.
Once it is found that the tenant validly tendered the outstanding rent, he was not in arrears and his tenancy would not stand terminated. The issue of extending benefit of Section 20(4) of the Act and also whether the entire amount including the cost was deposited by the petitioner on the first date of hearing and he was entitled to the benefit under Section 20(4) of the Act looses its significance inasmuch the tenant was not in arrears of rent on the date of the suit and the tenancy did not stand legally terminated by the notice and thus the suit itself was not maintainable. In this view of the matter, there is hardly any reason for this Court to enter into lengthy arguments advanced by the parties with respect to Section 20(4) of the Act qua non-deposit of cost and the voluminus case laws cited by them, just to overburden this judgment.
In view of above facts and discussins, the impugned judgment of the revisional court dated 28-01-2013 is not liable to be sustained and is hereby quashed and that of the Small Causes Court is affirmed.
Both the writ petitions are allowed.
However, there shall be no order as to costs.
Order Date :- 25.4.2014 nd