JUDGMENT Prakash Krishna, J.
1. This is landlady's revision under Section 25 of the Provincial Small Causes Court Act against the judgment and decree dated 22.4.2004 passed by Shri Gopal Shanker Pathak, J.S.C.C./ Additional District and Sessions Judge, Court No. 15, Kanpur Nagar in S.C.C. suit No. 15 of 2002.
2. The applicant claiming himself as owner and landlady of house No. 111/98 (14A) Ashok Nagar instituted S.C.C. suit No. 15 of 2002 against the defendant opposite party on the allegations that she purchased the aforesaid house from its erstwhile owner Shri Salauddin son of Shamsuddin Ahmed by means of a registered sale deed dated 25th of November, 1999. The defendant (hereinafter described as tenant) was the tenant of ground floor on a monthly rent of Rs. 3,000 in addition to 18 per cent water and other taxes etc. He defaulted in making payment of rent w.e.f. 1.4.2000. to 31.12.2001 and is in arrears of rent amounting to Rs. 63,000 and a sum of Rs. 11,304 as water tax and sewer charges. The provisions of U.P. Act No. 13 of 1972 are not applicable as the house in question was got constructed after getting the map sanctioned in year 1988 and also the rent is more than Rs. 2,000 per month. The tenancy was determined by notice dated 16.2.2002 which was served on 21.2.2002. in spite of service of notice the tenant has not paid arrears of rent nor vacated the disputed premises, hence the suit was filed for recovery of Rs. 71,300 towards the rent, Rs. 12,834 towards the taxes and damages at the rate of Rs. 120 per day.
3. The relationship of landlord and tenant between the parties and that its earlier owner was Shri Salauddin was not disputed in the reply. However, it was pleaded that the defendant has been tenant since the time of erstwhile owner Shri Salauddinat the rate of rent of Rs. 500 per month and also 18 per cent towards the taxes. It was further pleaded that the defendant has paid the rent up to March, 2000 and has stopped the payment of rent as the plaintiff landlady refused to issue receipt since April, 2000. The arrears of rent since April, 2000 till date is being deposited in the court. Plea that the house was got constructed after getting the map sanctioned in year 1988 was denied and controverted and it was stated that the first assessment of the house in question was made on 1.10.1978. Therefore, it was pleaded that the provisions of U.P. Act No. 13 of 1972 are applicable.
4. The parties led evidence in support of their respective cases. On the basis of pleadings of the parties the court below framed five points for determination. It has been found under point No. 1 that the rate of rent was Rs. 500 per month plus Rs. 90 per month towards the taxes, as was pleaded by the defendant tenant. Under point No. 2 the court found that the provisions of U.P. Act No. 13 of 1972 are applicable as the first assessment of house in question is dated 1.10.1978. As regards the service of notice determining the tenancy it was found that the notice was validly served on the defendant tenant, under point No. 3. The suit for ejectment was dismissed only on the ground that the notice determining the tenancy is not valid, vide points No. 4 and 5. The suit was decreed for recovery of arrears of rent from 1.4.2000 to the date of filing of the suit at the rate of Rs. 500 per month as also for recovery of Rs. 90 per month for the aforesaid period. in the like manner it was held that the plaintiff is entitled for recovery of the rent, damages and pendente lite.
5. Feeling aggrieved against the aforesaid judgment and decree the present revision is at the in stance of the landlady.
6. Shri S.K. Gupta, the learned Counsel for the landlady, in support of the revision urged only two points. He challenged the finding recorded by the court below under the point No. 4 holding that the notice is in valid. He also challenged the finding of court below on the point No. 1, i.e., the point relating to determination of the rate of rent. in reply, Shri Sharfuddin Ahmed, the learned Counsel for the tenant opposite party supported the judgment by placing reliance upon it and submitted that the findings recorded by the court below being findings of fact cannot be challenged in revision under Section 25 of Provincial Small Causes Court Act. in other words it was submitted that this Court has got limited jurisdiction as circumscribed under the aforesaid section. The following two questions thus fall for determination before this Court:
(1) Whether notice dated 16.2.2002 determining the tenancy is valid in law or not?
(2) Whether the finding recorded by the court below on point No. 1 that the monthly rate of rent is Rs. 500 besides Rs. 90 towards the tax is perverse and/or based on the relevant material on record?
7. At the very outset it may be stated here that no other point was pressed by the learned Counsel for the parties.
8. It is significant to note here that the court below while dismissing the suit for ejectment has decreed it for recovery of arrears of rent for the period of 1.4.2000 to 30.3.2002. The tenant has not filed any revision challenging the aforesaid finding recorded by the court below with regard to the default. The said finding has attained finality. Even otherwise also it is the admitted case of the defendant tenant as is clear from the pleadings as well as evidence that he had paid the rent upto March, 2000 and stopped the payment of rent since April. 2000 as the landlady refused to issue rent receipt.
9. The trial court has found that the notice given by the landlady was in fact a notice under Section 106 of the Transfer of Property Act and since the provisions of U.P. Act No. 13 of 1972 are applicable to the premises in question, the said notice is illegal as no notice under Section 20 of the U.P. Act No. 13 of 1972 was given. The question, therefore, is whether there is any requirement of giving notice under Section 20 (2)(a). The U.P. Act No. 13 of 1972, like other Rent Control Acts of different States makes provision for determination of standard rent, it specifies ground on which a landlord can seek eviction of a tenant, it prescribes forum for adjudication of disputes between the landlord and tenants, and the procedure which has to be followed in such proceedings. The present Act namely U.P. Act No. 13 of 1972 has come in operation w.e.f, 15.7.1972. This Act, as is apparent from its objects and reasons, is enacted to provide, in the interest of general public, for regulation of letting, rent and eviction of tenant from certain classes of buildings situate in urban areas and for matters connected therewith. Before the Apex Court in the Dhanapal Chettiar v. Yesoda Ammal , Constitution Bench examined the necessity of giving a notice under Section 106 of Transfer of Property Act by a landlord to determine the tenancy of a tenant in respect of an accommodation governed by State Rent Control Act and come to the conclusion that the determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplus age because a landlord cannot get eviction of a tenant even after such determination. The tenant continued to be so even thereafter. "That being so, making out a case under the Rent Act eviction of a tenant by itself is sufficient and it is not obligatory to find the proceedings on the basis of determination of lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.
10. The above decision of Apex Court was considered by this Court with reference to the provisions of U.P. Act No. 13 of 1972, with which presently we are concerned, in Jagdish Kumar Khanna v. Smt. Shakuntla Devi and Ors. 1980 ARC 535. It was held that the aforesaid authority of Supreme Court will not be applicable as there is no provision to determine the tenancy in the Rent Control Act; one has necessarily to look for the provisions of Transfer of Property Act. Section 111 of Transfer of Property Act provides determination of tenancy. At this stage it is necessary to have a look on the relevant statutory provision, i.e., Section 20 of the Act. The relevant portion is extracted below:
20. Bar of suit for eviction of tenant except on specified grounds.--(1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered in to by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in court or otherwise reduced to writing and signed by the tenant.
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year".
11. The expression "after determination of his tenancy" occurring in sub-section (2) of Section 20 refers determination of tenancy in accordance with law, i.e., in accordance with the provisions of Transfer of Property Act as held in the case of Jagdish Kumar Khanna (supra). This brings in Section 106 of Transfer of Property Act. That being so, reverting to the facts of the present case, it has been found that notice under Section 106 of Transfer of Property Act was validly given and served on the defendant tenant. The trial court has not found any illegality or irregularity in the said notice. It has been held to be in valid only on the ground that no notice as required under Section 20 (2)(a) was given. At this stage, it is necessary to produce the relevant portion from the notice:
4. That you are habitual defaulter in the matter of payment of rent as you have not paid the rent to my clientess with effect from 1.4.2000 to 31.12.2001 amounting to Rs. 63,000 and water tax and drainage @ 18% for the same period amounting to Rs. 11,340 in spite of repeated demand and request of my clientess.
5. That since the rent is Rs. 3,000 per month, therefore the premises in question is exempted from the purview of U.P. Act No. 13 of 1972, which is not applicable in the premises in question.
6. That my client does not want to keep you as tenant and as such your tenancy is terminated and shall stand determined on the expiry of 30 days from the date of service of this notice. I. therefore call upon you on behalf of my above mentioned clientess that you please pay the entire arrears of rent alongwith 18% water tax and Drainage as referred above, with in a month of the receipt of this notice. You are also called upon to vacate the portion under your tenancy and hand over its physical and vacant possession to my clientess on the expiry of 30 days from the date of service of this notice, failing which you shall be ranked as trespasser, for which you shall be liable to pay Rs. 120 per day damages for unauthorised use and occupation and my clientess shall institute a suit for your ejectment, arrears of rent, realization of taxes and damages in the competent court of law, for which you shall be burdened with all cost, risk and responsibility, which may be noted very carefully.
12. From the above, it is clear that there was unequivocal intention on the part of the landlady to terminate the tenancy of the defendant tenant on the expiry of 30 days from the date of service of notice. The other thing which is apparent is that the defendant tenant was in arrears of rent w.e.f. 1.4.2000 to 31.12.2001. It is axiomatic that the period from 1.4.2000 to 31.12.2001 is more than four months. It was neither disputed nor could have been disputed by the defendant tenant that the said period is in any way short of the period as required under Section 20 (2)(a) of the Act. The requirement under the aforesaid statutory provision is that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him a notice of demand. The arrears of rent was demanded through the notice in question, as is apparent from the face of the notice itself. The said requirement is fulfilled in the present case. At the cost of repetition it may be noted that as a matter of fact the suit for recovery of arrears of rent for the aforesaid period was decreed even by the trial court by the order under revision. From the above discussion, it is clear that a valid notice determining the tenancy was given and the defendant tenant was in arrears of rent for not less than four months on the date of notice and has failed to clear the arrears even after the service of the impugned notice. in this view of the matter, it is but obvious that the ingredients of Section 20 (2)(a) of the Act are fully made out. On a plain reading of the aforesaid provision there is no other requirement to be fulfilled to enable a landlady to institute a suit for eviction of tenant.
13. But, however, the trial court non-suited the plaintiff landlady on the ground that no notice under the aforesaid Section 20 (2)(a) was given by the landlady to the tenant. Giving of any such notice does not spell out from a plain reading of the aforesaid section. Even in the course of argument the learned Counsel for the defendant tenant could not give any reply and was unable to substantiate the contrary view taken by the trial court in the matter. He could submit only this much that since the case of the plaintiff landlady was that the provisions of U.P. Act No. 13 of 1972 are not applicable being a new construction, the notice in question is in valid as it was found that the disputed construction is not a new construction. It is difficult to agree with the aforesaid submission of the defendant tenant. in the present case, the tenant is in arrears of rent for more than four months which is one of the grounds for institution of suit for eviction.
14. In view of the above discussion, the finding of the court below under point of determination No. 4 for holding that the notice is in valid cannot be sustained. The said finding is illegal being contrary to law. It is, therefore, held that there is no requirement of giving any separate notice under Section 20 (2)(a) of the Act and the tenancy of the defendant tenant was validly terminated by giving a notice under Section 106 of the Transfer of Property Act and the statutory ground for eviction of defendant tenant under the aforesaid clause has been made out in view of the fact that he was in arrears of rent for not less than four months.
15. The next and last point urged by the learned Counsel for the plaintiff landlady is that the defendant was a tenant on a monthly rent of Rs. 3,000. The case of defendant tenant is that he took the disputed premises on a monthly rent of Rs. 500 besides Rs. 90 per month towards the taxes and has paid the rent accordingly up to 31.3.2001 and has not paid any rent thereafter as the plaintiff landlady refused to issue rent receipts. in support of her case, the landlady filed a licence deed dated 26.11.1999 and also produced her husband Sarvesh Awasthi P.W. 1 and Aditya Nath Shukla P.W. 2. The case of the plaintiff landlady is that the property in question was purchased for a sum of Rs. 15 Lakhs from Sri Salauddin by means of a registered deed. From the description given in the sale deed it is clear that the house No. 111/98/14A Ashok Nagar has an area of 175.75 sq. metres. Out of it 107.157 sq. metres is the constructed area on the ground floor. Similar construction is on the first floor and the constructed area of second floor is 85.426 sq. metres and the remaining land is vacant land. During the argument Shri S.K. Gupta, the learned Counsel for the plaintiff landlady submitted that there are 5 rooms on the ground floor besides bathroom, latrine and kitchen etc., in occupation of the defendant tenant. The descriptions of the rooms are not mentioned in the sale deed. A sum of Rs. 1,50,000 has been paid towards stamp duty. in addition to the filing of the aforesaid sale deed, the plaintiff landlady also filed an agreement dated 26.11.1999 entered in to in between the plaintiff landlady and the defendant tenant, evidencing that the defendant tenant has been put in as a licensee over the disputed accommodation on a licence fee of Rs. 3,000. The said agreement has been signed by both the parties and has been witnessed by the vendor, i.e., Salauddin. Copy of the statement of account for the Assessment Year 2000-2001 showing the receipt of the licence fee for four months total Rs. 12,000, assessment order, balance sheet for the year ending on 31.3.2001 showing a sum of Rs. 36,000 as outstanding against Mohd. Shafique, the defendant tenant, have also been filed, to show that the defendant tenant was initially permitted to occupy the disputed property as a licensee on a monthly licence fee of Rs. 3,000 and subsequently his status was changed from licensee to tenant. As against the above documentary evidence, the defendant tenant filed his affidavit stating that he took the disputed premises on a monthly rent of Rs. 590. He denied his signatures of the said licence deed dated 26.11.1999. The trial court discarded the documentary evidence filed by the plaintiff landlady on the ground that there being no pleadings with regard to the execution of the licence preceding the commencement of the tenancy and that in the balance sheet filed before the income-tax Department, the landlady has not mentioned the payment of taxes at the rate of 18 per cent, are sufficient to discard the documentary evidence and it preferred to believe the affidavit of defendant tenant that the total rent including tax was Rs. 590.
16. in the sale deed itself it is mentioned that the vacant possession is being delivered to the vendee. The learned Counsel for the plaintiff landlady has placed reliance on various municipal extracts to show that the disputed property was never in possession or occupation of any tenant and was under the occupation by the vendor till the date of sale deed. He further argued that the defendant tenant by manipulating the municipal records got his name entered surreptitiously for a limited period w.e.f. 1.4.1983 to 31.3.1987 in the municipal record. A copy of the said extract has been filed as Annexure-13 to the affidavit. The name of the defendant tenant is recorded as tenant over three rooms, store, two latrine, kitchen on a monthly rent of Rs. 450. There are cuttings and interpolations. No reason has been assigned by the defendant tenant even if the aforesaid document is correct as and when the rate of rent was enhanced from Rs. 450 to Rs. 500. Except the aforesaid municipal extract the correctness of which is disputed and doubted, there is no document to support the case of the defendant tenant. The finding recorded by the court below is based on appreciation of evidence on record and this Court even if is of the view that a different view is possible, has no jurisdiction to interfere with the said finding in the exercise of revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act. Although it does not appeal to reason that such a big accommodation which consists of five rooms more so in the industrial city of Kanpur with all the amenities including the vacant piece of land around it could be let out on a sum of Rs. 590 per month in the year 1999. The fact remains that the said accommodation was purchased by the plaintiff landlady for a sum of Rs. 15 lakhs after paying stamp duty of Rs. 1,50,000 therefore the total in vestment comes to Rs. 16,50,000. One fact which has been noticed in the judgment is that the defendant tenant has a criminal history and was a history sheeter having been involved in thirty-two criminal cases. The defendant tenant in his deposition as D.W. 1 admitted the above position and has stated that he has been acquitted in all the criminal cases and they have come to an end. His elder brother who was having a criminal history was shot dead and that is the reason that the defendant tenant was falsely implicated by the police.
17. in view of the above discussion the finding on the question of rate of rent as recorded by the trial court is not being disturbed being finding of fact.
18. Before parting with this case it is with great anguish to bring on record that Shri Gopal Shanker Pathak, Judge Small Causes Court/ Additional District and Sessions Judge, Court No. 15, Kanpur Nagar is unaware of the law relating to the validity of a notice terminating tenancy under Section 106 of Transfer of Property Act under Section 20 (2)(a) of U.P. Act No. 13 of 1972. Needless to say he must have put in number of years in judicial service and must have decided hundreds of suits of Judge Small Causes nature between landlord and tenant. in suits relating to landlord and tenant matter, for eviction, validity of notice is usual defence and it involves adjudication in variably in good number of such suits. A Judge Small Causes dealing with such matters is expected to know the basic law relating to notice. The court below apparently took no pains to go through the relevant legal niceties and decided the case on his own notions without making reference to any precedent or principles of law. Such casual approach of a judicial officer certainly erode the confidence of public in judiciary. He is advised to be more cautious and desist to repeat the mistake in future.
19. The extent of accommodation in possession of the defendant tenant, according to his own saying, as per municipal record relied upon by him, is three rooms, two latrines, kitchen and store on the ground floor besides vacant piece of land surrounding it in city Kanpur. At the modest rate it can easily fetch more than Rs. 5,000 per month. Taking in to consideration that the property was purchased in year 1999 for a sum of Rs. 15 Lakhs and Rs. 1,50,000 was paid as stamp duty and that the defendant tenant is in occupation of ground floor only, the damages for its use and occupation is fixed at Rs. 5,000 per month w.e.f. 1.9.2006 till the date of actual physical possession to the landlady, as against Rs. 300 per day as claimed by the plaintiff. The defendant tenant would also be liable to pay simple interest @ 10 per cent per annum on the arrears of rent and damages pendente lite from the date of Judgment of the trial court decree, le., 22.4.2004 till the date of actual payment.
20. With regard to the above discussion the judgment of the court below refusing to grant the decree for eviction is liable to be set aside. Rest part of the decree is confirmed, subject to above modification.
21. The revision is allowed in part and the suit for recovery of possession is also decreed with proportionate costs of both the costs. The Registrar General is directed to keep a copy of this judgment on the personal file of Shri Gopal Shankar Pathak, the then J.S.C.C./Additional District Judge, Kanpur.