1. This is a revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (Act No. 9 of 1887) preferred by a tenant against the order of the Judge, Small Causes Court, whereby landlord's suit for the arrears of rent and eviction has been decreed.
2. Briefly stated the facts are; the respondent-landlord had let out a shop, bearing Municipal number Shop No. 3 of House No. 457 (for short, "disputed shop") to one Madan Lal at the rate of Rs 450 per month. In November 2003 a dispute arose between parties in respect of enhancement of the rent. According to the Land lord a settlement arrived at between the parties to enhance the rent at the rate of 1250 per month and he also agreed that after every three years rent shall be enhanced at rate of 10%.
3. After the said settlement, it is stated that tenant continued to pay the rent at the enhanced rate but from November 2005 they stopped the payment of the rent completely. The tenant Sri Madan Lal unfortunately passed away on 7.1.2007. After his death his wife, revisionist no. 1 and his son revisionist no. 2, inherited his tenancy.
4. The respondent landlord made several request for payment of arrear of the rent but no attention was paid by the revisionists. Thereafter landlord sent a Notice dated 17.12.2008 whereby she demanded arrear of rent and determined their tenancy. The notice was duly served upon the revisionists and they replied the same. In their reply they denied any arrear of rent. Thereupon the landlord instituted a suit in the court of Additional District Judge for recovery of arrear of rent from 6th March 2006 to 5th March 2009, damages at the rate of Rs. 3500 per month and eviction of the revisionists from the disputed shop.
5. It was stated that the shop is more than ten years old, therefore, the provisions of the Uttar Pradesh Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) are applicable.
6. The tenant-revisionists filed their Written Statement and contested the case. It is stated that from 1.12.2008 the revisionists are regularly depositing the rent. They had offered the rent of two months from 1.12.2008 to 31.1.2009 at the rate of Rs 450 per month to landlord through money order but when she refused to accept it, the revisionists deposited it with 9% interest in the court of JSCC under the provisions of Order XV Rule 5 Civil Procedure Code (for short the "CPC") before the first date of hearing.
7. In the Written statement rate of rent was also disputed. It was averred that at the time when late Sri Madan Lal was tenant, the rent was Rs 225 per month only. It is also stated that the landlord did not issue any rent receipt.
8. The learned Judge, Small Causes Court framed five issues for determination. The issue no. 1 was framed with regard to the rate of rent; the second issue was framed whether the parties had some settlement for the enhancement of the rent in the year 2003 to Rs. 1250/- per month. Both the issues were decided in favour of the tenant and the court below has not accepted the stand taken by the plaintiff-landlord that the rent was enhanced to Rs. 1250/- per month. It was further held that there was no such agreement between the parties, The Court below has recorded a finding that rent was Rs.250 per month. It has relied on the municipal record filed by the tenants / revisionists to establish that rent was never enhanced and the landlord failed to prove that rent was enhanced from Rs. 450/- to Rs. 1250/- per month.
9. The Judge, Small Causes Court while deciding issue no. 3 found that the tenant has failed to establish that the rent has been paid by him regularly and there was no default. A finding has been recorded by the Court that the tenant has deposited the receipt of the Money Order 58-Ga and 59-Ga, which indicate that the tenant had offered the rent from 01 December 2008 to 31 January 2009 through the Money Order, but no evidence has been filed by the tenant to establish that before the said period the rent has been regularly paid.
10. The court below has recorded the finding that tenant was not entitled for the benefit of section 20(4) of Act No. XIII of 1972. It also noticed the fact that the tenant did not seek the benefit of Section 20(4) of the U.P. Act No. XIII of 1972 but it has claimed that it had deposited a sum of Rs. 1175/- on 15 April 2009 and on 01.12.2008 it had deposited the rent at the rate of Rs. 225/- per month, thus the tenant was not entitled for the benefit under Section 20 (4) of the U.P. Act No. XIII of 1972.
11. I have heard Sri N.C. Rajvanshi, learned Senior Advocate assisted by Sri M.K. Rajvanshi, learned Counsel for the revisionists and Sri Nipun Singh, learned Counsel for the opposite party.
12. Learned Counsel for the revisionists submits that the landlord does not issue rent receipts; there is no default. The rent, which was due from 01 December 2008 was sent through the money order, which was refused by the plaintiff-landlord. He further urged that under the provisions of Section 20(2)(a) of the U.P. Act No. XIII of 1972, burden was on the landlord to prove that revisionist-tenant has committed default. Learned Counsel cited a Full Bench judgement in the case of Gokaran Singh and others v. Additional District and Sessions Judge, Hardoi and others, 2000(41) ALR 405.
13. Lastly it was urged that the Trial court has failed to frame the issue about the validity of the notice under Section 106 of the Transfer of Property Act, 1882 (Act No. 4 of 1882). The said notice is full of incorrect facts.
14. Learned Counsel for the respondent Sri Nipun Kumar submits that the landlady in paragraph-6 of the plaint had categorically mentioned that from November 2005 no rent was paid by the tenant-revisionists but she claimed the arrears of rent for the period of three years from 06 March 2006 to 14 January 2009; the finding of fact has been recorded by the court below that no rent for the period of three years from 06 March 2006 to 14 January 2009 was paid thus the default was proved. He further submitted that though the shop in question comes within the purview of the U.P. Act No. XIII of 1972 but no benefit under Section 20(4) of the U.P. Act No. XIII of 1972 can be given to the tenant-revisionists on account of non-payment of the unconditional amount mentioned in Section 20(4) of the Act No. XIII of 1972.
15. It was further urged that the tenant-revisionists could not prove that there was no default. The learned Counsel has drawn the attention of the Court to the cross-examination of the defendant-revisionist no. 1 Smt. Mauni, wherein she has admitted that she does not remember when the rent was paid. Her entire statement is full of contradiction. It was also contended that tenant has miserably failed to prove that they have paid the entire rent.
16. I have heard learned Counsel for the parties and has considered the submissions advanced by them.
17. The landlord claims that the rent of the disputed shop was enhanced from Rs. 450/- to 1200/- per month, has not been accepted by the court below and it found that in fact the rate of the rent was Rs. 450/-. From the evidence on record it is evident that the finding recorded by the court below under the issue nos. 1 & 2 do not suffer any error of the law.
18. Learned Counsel for the landlord could not satisfy the Court that the said finding warrants any interference under the revisional jurisdiction. Moreover, he has not challenged the said findings.
19. As regards the finding on the issue no. 3 regarding the arrears of rent, admittedly, the tenant has failed to adduce any evidence that she has paid the rent prior to 01.12.2008. The revisionist/ tenant has admitted that after receiving the notice under Section 106 of the Act No. 4 of 1882 they sent the rent from 01 December 2008 to 31 January 2009 at the rate of Rs. 450/- through a money order.
20. It is true that the tenant has deposited on 15.04.2009 a sum of Rs. 1175/- rent from 01.12.2008 to 30.04.2009 at the rate of Rs. 225/- per month and Rs. 50/- against the interest at the rate of 9% under Order XV Rule 5 of the CPC but the benefit under Section 20(4) has been rightly denied by the court below as the revisionist tenant has not deposited interest on the admitted rent and the expenses of the suit etc. on the first date of hearing.
21. It is significant to mention that the tenant in her statement clearly admitted that she does not remember that whether she has given rent prior to 2008 or not. Her statement reads as under;
**uxjikfydk esa 225 :i;s izfr ekg fdjk;k fdl :i esa fy[kk x;k] ;g ;kn ugha gS A ;g dguk xyr gS fd eSaus 2008 ls dksbZ fdjk;k u fn;k gks A ge bUgsa fdjk;k nsrs Fks] ijUrq ;s fy[krs ugha Fks A 2007 esa geus fdjk;k fn;k ;k ugha A tc bUgksaus ugha fy;k] rks geus vnkyr esa tek fd;k Fkk A eq>s ugha irk eSaus fdl lu rd fdjk;k fn;k gS A eSaus fdjk;k flQZ dksVZ esa vkdj fdjk;k tek fd;k Fkk A okfn;k us dc ls fdjk;k ugha fy;k ;g ugha crk ldrh A 2008 ls igys dk fdjk;k dc ls dc rd dk fn;k] ;g ugha irk A 2008 esa fdl eghus rd dk fdjk;k fn;k A ;g Hkh ;kn ugha gS A geus 2008 esa dksbZ efuvkMZj ugha Hkstk A ;g dguk xyr gS fd geus fdjk;k ugha fn;k blhfy, ;g eqdnek okfn;k us fn;k A blhfy, ;g eqdnek okfn;k us fd;k gS A eq>s ugha irk iz'uxr~ nqdku ds vklikl 15000 :i;s izfr ekg fdjk;s dk jsV gksA ;g dguk xyr gS fd geus vnkyr esa iwjk fdjk;k tek u fd;k gks A ;g Hkh xyr gS fd geus x`gdj o tydj vnkyr esa tek u fd;k gks A** (emphasis supplied)
22. From a perusal of the said statement it is demonstrably established that finding of court below in respect of the default committed by the revisionist-tenant, does not suffer any illegality.
23. In the present case the revisionists-tenant themselves have admitted that they have deposited the amount from 2008 onwards. The court below has recorded a finding about the default prior to 2008.
24. The submission of learned Counsel for the revisionists Sri Rajvanshi that the court below has not framed any issue in respect of the validity of the notice, I am unable to accept the submission of the learned Counsel.
25. Section 15 of the Act No. 9 of 1887 provides that the jurisdiction under the said Act is of the summary nature. It is an established law that in summary proceedings framing of the issue is not mandatory. The provisions of the Order-XIV of the CPC which deals with the settlement of the issues have no applicability to the proceedings before the Small Causes Court. The reference may be made to the following decisions;
(i) Dau Dayal Tandon v. Addl. District Judge, Naini Tal and others, 1982 (1) ARC 356;
(ii) Abdul Rahman v. Prasony Bai and another, AIR 2003 SC 718;
(iii) Rameshwar Dayal v. Banda (dead) through his L.Rs. And another, 1993 (1) ARC 249;
(iv) Yasin and another v. Murari Lal, 2013 (2) ARC 376.
26. The next submission of Sri Rajvanshi is that the burden of proof was on the landlord to prove that the tenant has failed to make the payment of the rent. He further urged that the landlady did not issue any rent. It is a well established law that that the initial burden is on the landlord to prove that the tenant has committed default in the payment of rent. If the landlord has adduced that the tenant has made a default then the onus is shifted on a tenant to prove that no default has been committed by him. As regards the submission that the landlady did not issue the rent receipt, it was to the tenant to take recourse to the Section 26(4) of the U.P. Act No. XIII of 1972. This issue has been considered by this Court in the case of Satya Prakash v. District Judge, Ghaziabad and others, 1982 (1) ARC 225. The relevant part of the order is extracted herein below;
"4..........If there had been a breach on the part of the landlord to comply with sub-section (4) of Section 26 of the Act, he had to be dealt with under the provision of the said Act. However, the question of burden is a different question, under the Indian Evidence Act the burden is always on the person who alleges payment and it is not for the plaintiff to prove the negative.........."
27. The Supreme Court in the case of Madan Mohan and another v. Krishan Kumar Sood, 1994 Supp (1) SCC 437 has considered the same view and observed as under;
"16. Surely the Rent Control Acts, no doubt, are measures to protect tenants from eviction except on certain specified grounds if found established. Once the grounds are made out and subject to any further condition which may be provided in the Act, the tenants would suffer ejectment. Again the protection given in the Acts is not to give licence for continuous litigation and bad blood."
28. The said judgement was followed by this Court in the case of Sukhanand v. The IV Additional District Judge, Bulandshahar and another, AIR 1994 Allahabad 59; Gokaran Singh v. Ist Additional District and Sessions Judge, Hardoi and others, 2000(1) ARC 653. The similar view was taken in the case of Sri Ram Mehrotra v. Sabhapati Dwivedi, 1998 (32) ALR 21; Mahesh Chandra v. Smt. Angoori Devi, 1989 (1) ARC 540.
29. Learned Counsel for the revisionists has placed heavy reliance on the judgement of Gokaran Singh v. Ist Additional District and Sessions Judge, Hardoi and others, 2000 (1) ARC 653. In the said judgement the Court held that the initial burden of proof about the arrears of rent lies upon the landlord. Once the same burden is discharged by the landlord the tenant will have to prove the payment of rent. The Court observed as under;
"35. This Court while dealing with cases under Section 20 (2) (a) of the Act, held that where the plaintiff claims arrears of rent and where the rate of rent is disputed by the tenant, the burden of proof of the rate of rent and arrears lies on the plaintiff. However, the burden of proof of the fact that rent was already paid or there were no arrears as claimed by plaintiff, lies on the defendant. A reference in this regard may be made to the decisions in Mahesh Chandra v. Smt. Angoori Devi, 1989 (1) ARC 540; Smt. Vijai Laxmi Gangal v. Mahendra Pratap Garg, 1985 (2) ARC 298; Sukhanand v. IV ADJ, Bulandshahr and Ors., 1993 (2) ARC 39 and Smt. Pushpa Kumari v. Smt. Sukuntala Shukla, 1984 (2) ARC 259."
30. As regards the validity of notice in the present case, as discussed above, the notice was duly served on the tenant and a reply has been submitted on 14.01.2009.
31. This issue has been considered in Gajendra Singh v. Smt. Ratna Kewalramani, 2009(3) ARC 402, in the following terms;
"9. In my considered view, the said notice fulfills all the ingredients of Section 106 of the Transfer of Property Act as also that of Section 20(2)(a) of U.P. Act No. 13 of 1972. Time and again, it has been held that a notice under Section 106 of the Transfer of Property Act should not be considered in a pedantic manner. It should be read as a whole and be interpreted not with a view to find out fault therein. If on a fair reading of the notice, the intention of the notice giver to terminate the tenancy after 30th day of receipt of the notice and also demand of arrears of rent is there, the notice is valid. In the case on hand, it is clearly stipulated that the tenancy of the noticee is terminated and 30 days' time to vacate the disputed accommodation has been granted."
32. In the present case admittedly the provisions of Rent Control Act is applicable thus the only requirement is to send a notice of demand and determination of the tenancy is sufficient. The only requirement is that from reading the notice as whole, the intention of landlord should be clear that he wants that tenant should vacate the premises.
33. A simple tenancy can be terminated by service of notice under Section 106 of the Act No. 4 of 1882 but in case the premises is covered under the provisions of the Uttar Pradesh Urban Buildings (Regulations of Letting, Rent and Eviction) Act (U.P. Act No. XIII of 1972) the legislature has provided the cushion to the tenant by giving him an opportunity in terms of Section 20(4) of the U.P. Act No. XIII of 1972 to save his tenancy in spite of arrears of rent by providing him an opportunity to deposit the rent etc. on the first date of hearing.
34. Learned Counsel for the revisionists submits that the revisionists have deposited the rent from 2008 onwards under Section 30 of the U.P. Act No. XIII of 1972. As discussed above, admittedly, the tenant has not deposited the entire rent to take the benefit under Section 20 (4) of the U.P. Act No. XIII of 1972. It is necessary that the tenant deposits entire rent including time barred rent. Reference may be to the judgement in Sunil Kumar, Mukherji v. Kabiraj Bindu Madho Bhattacharyaya and others, 1978 ARC 74; Khadi Gram Udyog Trust v. Ram Chandraji Virajman Mandir, Sarsaiya Ghat, Kanpur, 1978 ARC 59.
35. Concededly, the tenant-revisionists have not paid the court fee, counsel fee, clerk fee etc.
36. This Court in the case of Gopal Yadav v. Special Judge (Anti Corruption)/ Additional District and Session Judge, Varanasi and others, 2002 (1) ARC 197, has considered the cause of the suit as mentioned under sub-section (4) of Section 20 of the Act and came to hold as under;
"14. The legislature has used the expression ".....Landlord's costs of the Suit...." and that it avoided to use expression "which would have been finally found payable" or "which should have been finally found to be payable on the reliefs granted by the Court."
15. Learned Counsel for the Petitioner submitted that the aforesaid provision is beneficial piece of legislation to confer benefit upon the tenant and it should be interpreted accordingly.
16. In my considered opinion aforesaid aimed to confer provision is not solely benefit upon 'tenant' only but to confer benefit upon both landlord and tenant. Secondly this Court cannot do violence with a given statutory provision while interpreting it and particularly when there is no for ambiguity in the language requiring interpretation.
17. Perusal of the impugned judgment and order, with reference to the charts annexed with the Writ Petition as Annexures 6 and 7 to the Writ Petition, clearly shows that considerable amount of Court Fee as well as half lawyers on taxable side and clerkage have not been deposited by the tenant-petitioner.
18. It is abundantly clear that tenant has not deposited the required amount towards "landlords" cots of Suit contemplated under Section 20 (4) of the Act and, therefore, he cannot claim benefit to Section 20 (4) of the Act and protect, himself from eviction from the accommodation in question."
37. For the aforesaid reasons, the revisionists are not entitled for the benefit of rent deposited by them under Section 30(1) of the U.P. Act No. XIII of 1972.
38. After careful consideration of the submissions made by the learned Counsel for the parties, I do not find any error in the order of the court below. The revision lacks merit and is accordingly dismissed.
39. The tenant-revisionists are granted four months' time to vacate the premises subject to the following conditions;
(i) the tenants shall submit an undertaking in the court below that they will handover the vacant and peaceful possession to the landlord on or before 01 December 2014;
(ii) they will continue to pay the rent on each succeeding month till vacation of the accommodation on 07th day of each month.
(iii) they will not create any third party interest in the disputed shop.
40. No order as to costs Order Date :-28.8.2014 DS/-