Heard learned counsel for the parties and perused the record.
This writ petition has been filed challenging the validity and correctness of the order dated 22.02.2008 passed in S.C.C. Suit No. 91 of 2005 and order dated 07.02.2011, passed in S.C.C. Revision No. 23 of 2008.
The facts of the case are that the petitioner claims to be a tenant of the accommodation in dispute which has been purchased by the present respondent from its earlier owner Sri Devendra Kumar Chhabra, by registered sale-deed dated 5.7.2002. The landlord-respondent filed S.C.C. Suit No. 91 of 2005 in respect of shop in dispute being Shop No. 86 (new number 89) located at Mohalla Purva, Kamboh Gang in front of Jain Dharmshala, Railway Road, Meerut, inter alia that petitioner was tenant of the shop in question at the rate of Rs.180/- per month since its erstwhile owner Devendra Kumar Chabda and has not paid rent to the landlord since 5.12.2004. It was also averred in the plaint that the petitioner had changed the use of the shop in dispute without any written permission of the landlord as provided under U.P. Act No. 13 of 1972, as such the said shop was liable to be vacated.
The suit was contested by the petitioner-tenant by filing written statement, inter alia that the respondent-landlord had full knowledge about the change of user of the shop in dispute and that the respondent-landlord has not given any rent receipts for the period 4.12.2004 and 4.7.2005 amounting to Rs.1,260/-. It was also averred in the written statement filed by the petitioner that he had sent rent through money order, but the same was refused by the respondent-landlord.
It is stated that on the basis of the pleadings of the parties, the trial court framed four issues namely (1) whether the defendant has committed default in payment of rent? (2) whether the defendant is entitled to get benefit of Section 20 (4) of the Act?; (3) whether the defendant has changed the user of shop from commercial to residential purposes in respect of the back portion of the shop, and the defendant is liable to be ejected on this ground?
It is also stated that the trial court by its judgment and order dated 22.2.2008 illegally and erroneously held that the petitioner is a defaulter; that the deposit made by the petitioner under section 20 (4) was without permission of Court and therefore invalid, not only this the trial court also illegally held that the petitioner has changed the user of premises from commercial to residential in part. Upon such erroneous grounds the trial court decreed the suit no. 91 of 2005.
Aggrieved by the said order dated 22.2.2008, petitioner preferred S.C.C. Revision No. 23 of 2008 which has been dismissed on 07.02.2011 confirming the finding of the trial Court. The petitioner has challenged these findings of the trial court as well as revisional court on the grounds that the impugned orders are cryptic and has been passed without application of mind. It has also been submitted by the petitioner that the impugned order has been passed without taking into consideration the material evidence available on record.
Learned counsel for the petitioner has argued that the deposit made by the petitioner cannot be turned down on the basis that it was made without leave of the Court until and unless it is found that the deposit made under section 20(4) of the Act was either insufficient or was made after first date of hearing and in absence of finding to such effect, the deposit made under section 20 (4) of the Act cannot be illegally turned down by the Court.
It is lastly prayed that a writ of certiorari may be issued quashing the order dated 22.2.2008 passed in S.C.C. Suit No. 91 of 2005 and order dated 7.2.2011 passed in S.C.C. Revision No. 23 of 2008.
In support of his case, learned counsel for the petitioner has relied upon a judgment rendered in the case of Mahendra Nath Tandon Vs. VIth Addl. District Judge, Kanpur Nagar and others reported in ARC, 1997 (1) 139. Paragraphs 10, 11, 12, 13, 14, 15, 16 and 17 of the said judgment relied upon by the petitioner are as under:
"10. The main questions involved in the present case, are as to whether the petitioner committed default in payment of rent and as to whether the amount deposited by him under Section 30 of the Act was liable to be adjusted in the amount deposited by him under sub-section (4) of Section 20 of the Act and further whether the petitioner could be relieved from the liability of his eviction under the said sub-section (4) of Section 20 of the Act.
11. The Courts below have recorded concurrent findings of facts on the question of default against the petitioner. Clause (a) of sub-section (2) of Section 20 of the Act, provides as under:-
"20. Bar of suit for eviction of tenant except on specified grounds,-
(1).......................................
(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 the following grounds, namely :-
(a)that the tenant is in arrears of rent for not less than four months and failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
Provided................................."
12. A perusal of the aforesaid provision reveals that a tenant must be in arrears of rent for more than four months and he should have failed to make the payment of the amount of rent within 30 days of the receipt of the notice of demand, only then he can be held to be a defaulter.
13. In the instant case, admittedly, the notice was sent by respondents nos. 3 and 4 on 26.12.92, which was served upon the petitioner on 28.12.1992. On the said date, according to the case set up by the respondents nos. 3 and 4, petitioner was in arrears of rent for more than four months and has failed to pay the same within 30 days of the receipt of the notice. While the petitioner pleaded that the rent for the period 21.11.91 to 30.6.92 was not accepted by the landlords, the same thereafter sent through money order, but the said money order was also refused by them on 15.7.92 and the rent was, thereafter, deposited in the Court on 22.12.92 under Section 30 of the Act. Thus, on the date of the receipt of notice of demand and termination of tenancy, petitioner was not in arrears of rent for more than four months and the rent for the subsequent month was also deposited by the petitioner and he, according to his own case, was not in arrears of any amount.
14. The Courts below have taken the view that the petitioner has failed to prove that the respondents no. 3 and 4 refused to receive the money order. It was further held that the deposit made by the petitioner under section 30 of the Act, cannot be said to be valid and that the petitioner was committed default in payment of rent. The findings recorded by the Courts below are concurrent findings of fact, which are based on relevant evidence on the record. The said findings cannot be challenged under Article 226 of the Constitution of India, therefore, the submission made by the learned counsel for the petitioner that the petitioner was not a defaulter, is not acceptable to me.
15. So far as the question of benefit of sub-section (4) of Section 20 of the Act is concerned, petitioner pleaded that after the money order sent by him was refused by the contesting respondents, an amount of Rs.1809 was deposited under section 30 of the Act and, thereafter, on receipt of summons issued by the trial Court, an amount of Rs.3000 was deposited on 30.10.93. According to the findings recorded by the Court below, the date of first hearing in the case was 8.12.1993. Thus, petitioner has deposited the requisite amount according to his calculation, even much before the date of first hearing. The Court below has refused to give the benefit of sub-section (4) of Section 20 of the Act to the petitioner on the ground that the said amount was found short of Rs.899.13, and that the deposit made by the petitioner under Section 30 of the Act has been held to be a invalid. Thus, the question is as to whether the amount deposited by the petitioner under Section 30 of the Act was liable to be adjusted in the amount required to be deposited under sub-section (4) of Section 20 of the Act. Sub-section (4) of Section 20 of the Act provides as under:-
"20. (4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2) if at the first hearing of the suit the tenant unconditionally pays or (tenders to the landlord or deposits in Court) the entire amount of rent and damages for use and occupation of the building due from him ( such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord's costs of the suit in respect thereof, after deducting there from any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against him liability for eviction on that ground:
Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area."
16. From a plain reading of the aforesaid provision, it is apparent that the amount deposited under Section 30 of the Act by a tenant, is liable to be adjusted in the amount required to be deposited under the said provision."
It is apparent from the reading of the judgment passed by Judge, Small Causes Court in S.C.C. Suit No. 91 of 2005 that there is no dispute regarding relationship of landlord and the tenant between the parties. The landlord had also given notice terminating tenancy of the petitioner. The receipts filed by the petitioner are rent receipts of which first receipt is from 6.7.2002 to 6.11.2002 (Rs.720/-), from 6.11.2002 to 6.1.2003 (Rs.360/-), from 4.2.2004 to 4.9.2004, from 4.6.2004 to 4.12.2004 and from 4.7.2004 to 4.7.2005 amounting to Rs.1260/-. The Court has recorded categorical findings of fact that the tenant has deposited rent up to 6.12.2006 and as regards paper no. 52-Ga regarding payment of rent under section 20 (4) of the Act is concerned, it has been deposited on 16.3.2007. The Court noticed that first date of hearing in the case was 14.10.2005 and the tenant had filed his written statement on 22.9.2005 and the evidence was adduced on 21.11.2005, as such, the deposit made by the petitioner under section 20 (4) of the Act, cannot be said to be a deposit on the first date of hearing. The Court further held that the said amount has been deposited after more than one and half years without taking any permission from it.
The relevant finding recorded in this regard are thus:-
^^bl lEiw.kZ i=koyh dk voyksdu djus ls Li"V gS fd izfroknh ds }kjk fnukad 06-12-2006 rd fdjk;k izdh.kZ okn esa tek fd;k gSA rFkk tgka rd isij ua0 52 x dk iz'u gS tks fdjk;s dh /kujkf'k izfroknuh ds }kjk 20 ¼4½ dk ykHk izkIr djus ds fy, tek dh x;h gSA og fnukad 16-03-2007 dks tek fd;k x;k gSA tc fd bl dsl esa lquokbZ dks izFke frfFk 14-10-2005 Fkh rFkk izfrokn i= fnukad 22-09-2005 dks nkf[ky gqvk gS rFkk lk{; esa fnukad 22-11-2005 dks nkf[ky gqvk Fkk ;fn lk{; dh frfFk ds vuqlkj Hkh lquokbZ dh izFke frfFk dks ns[k tk; rks ;g fnukad 22-11-2005 cSBrh gS tcfd izfroknuh ds }kjk fnukad 16-03-2007 dks /kkjk 20 ¼4½ dk ykHk izkIr djus ds fy, /ku jkf'k dks tek fd;k x;k gS rFkk lEcU/k esa dksbZ vuqefr U;k;ky; ls izkIr ugha dh x;h gSA** It is settled law that if due amount of rent is not deposited on or before the first date of hearing, the benefit of Section 20 (4) of the Act will not be applicable to the tenant. Admittedly, the petitioner-tenant is defaulter in paying the rent. She has failed to prove her case before the Court below that she is not defaulter. As such, Judge Small Causes Court has recorded finding to the effect that she was defaulter and is not entitled to get the benefit of Section 20 (4) of the Act.
The facts of the instant case are different from the case of Mahendra Nath Tandon Vs. VIth Addl. District Judge, Kanpur Nagar and others (supra) relied upon by the petitioner. In that case the Court below had refused to give benefit of Section 20 (4) of the Act, finding the tenant to be defaulter. In that case, the petitioner had deposited rent under section 30, but there was a short fall in the amount of Rs.1809 and as the Court refused to give benefit of Section 20 (4) on the ground that deposit made by him cannot be taken into consideration for the purpose of adjustment of rent deposited by him under section 30 of U.P. Act No. 13 of 1972. In the instant case, petitioner though had deposited some of the amount under section 30 of the Act, but thereafter had deposited the amount under section 20 (4) of the Act, claiming adjustment though this amount was deposited under section 20 (4) of the Act after one and half years of first date of hearing. Therefore, there was no case of adjustment.
The contention of the petitioner that the deposit made under section 20 (4) of the Act cannot be legally turned down on the ground that no leave of the Court was granted, is incorrect. The petitioner had admittedly not deposited full arrears of rent under Section 30 up to the first date of hearing and for this reason also he is not entitled to get benefit of Section 20 (4) of the Act.
In the circumstances, the petitioner cannot get any benefit of ratio laid down in the case of Mahendra Nath Tandon Vs. VIth Addl. District Judge, Kanpur Nagar and others (supra).
Therefore, the Court is of the view that the findings recorded by the Courts below are concurrent findings of fact by which it has been held that petitioner is a defaulter in payment of rent. No illegality or infirmity in the orders passed by the Court below could be shown by the counsel for the petitioner.
For all the reasons stated above, the writ petition is dismissed. No order as to costs.
As requested, the petitioner is permitted to handover the peaceful possession of the accommodation in dispute to the respondent-landlord within a period of two months from the date of production of a certified copy of this order.
Dated: 24.03.2011 RCT/-