1.Heard Mr M. Islam, Advocate, for the petitioner.
2.Suit of respondent-landlord i.e. SCC Suit No. 62 of 1998, filed for ejectment of petitioner-tenant from accommodation in question, which is a residential building, on the ground of default in payment of rent, has been decreed by trial court vide judgement and order dated 15.12.2009 and the said judgement has also been confirmed by revisional court vide judgement dated 10.10.12 by dismissing SCC Revision No. 4 of 2010, whereagainst this writ petition has come up.
3.It is evident from record that petitioner-tenant deposited entire rent and other dues before the first date of hearing as contemplated under section 20(4) of the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (in short, Act, 1972), but the courts below have declined to grant benefit by virtue of proviso to section 20(4), which reads as under:
"20. Bar of suit for eviction of tenant except on specified grounds.
(4) ...
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."
4.Learned counsel for petitioner contended that there are two manifest errors of law committed by courts below: (1) there was no pleading about the residential building in the same city, etc. so as to attract proviso to Section 20(4) of Act, 1972; and, (2) the alleged residential accommodation belong to petitioner's father and bequeathed to petitioner's brother by a registered will, which defence has wrongly been discarded by the courts below. In support of submission about specific pleadings he placed reliance on a decision of this Court in (2005 All. C.J. 1953): Girish Chandra Gupta and others Vs. State of U.P. and others.
5.However, I find no force in the submission.
6.Act, 1972 basically protects tenants from exploitation of landlords. The availability of accommodation on rent was in scarcity and compelling demand thereof used to give upperhand to the landlords to exploit entire lot of homeless or otherwise needy persons of tenanted accommodation. The situation was realised even before Independence by the State and in the Province of Uttar Pradesh, a statute, namely, the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (UP Act No. 3 of 1947) was enacted. The State legislature thereafter gave effect to its experience of rent laws working for almost three decades and enacted a more comprehensive statute, I.e. Act 1972, repealing UP Act NO. 3 of 1947.
7.This Act, 1972 governs only such buildings, as are situated in urban areas. Primarily, the entire statute is meant for protection of tenants but there are two provisions which recognise right of landlord to evict his tenant or get release of tenanted accommodation i.e. Section 20 and 21 of Act, 1972.
8. Section 20 of Act of 1972, on the one hand, deprives a landlord from exercise of his right of re-entry as available under Common Law and in particular under the provisions of the Transfer of Property Act, 1882 (hereinafter referred to Act, 1882) by stating in sub-section (1) that no suit shall be instituted by a landlord for eviction of a tenant from a building, notwithstanding determination of tenancy, by efflux of time or on expiration of a notice to quit or in any other manner. It, however, makes an inroad by way of exception I.e. to the extent it is permissible under sub-section (2). Meaning thereby there is a complete embargo on the right of a landlord for evicting a tenant by filing a suit for whatsoever reason available under any other law, unless the landlord is able to make out a case under sub-section (2) of section 20. Needless to say that embargo applies to the buildings within the ambit of Act, 1972.
9.Sub-section (2) provides certain conditions whereupon the landlord gets right to file a suit for eviction of a tenant from a tenanted accommodation, after determining his tenancy. One such ground, if the tenant is in arrears of rent for not less than four months and has failed to pay the same to landlord within one month from the date of service upon him, of a notice of demand. In respect to certain limited category of tenants, proviso to section 20(2)(a) has extended period of four months to one year. However, this Court is not concerned with this limited category of tenants.
10.Therefore, to attract sub-section (2)(a) of section 20 of Act 1972, a landlord, when files a suit for eviction, is required to plead that there is a relationship of landlord and tenant, in respect to a building governed by Act, 1972, and that tenant has committed default in payment of rent, for not less than a period of 4 months and despite service of a demand notice, has continued with default by not paying demanded rent, within one month, after receipt of notice. Whenever a suit based on the ground under section 20(2)(a) of Act 1972 is to be filed, these are the basic facts which, ordinarily are required to be pleaded by landlord.
11.As already said, the Act, 1972 leans in favour of tenants. The legislature, therefore, in its wisdom, though has provided default in payment of rent for a period of not less than four months, a ground for eviction of tenant, yet has further provided a little more protection to the tenant, by permitting him to pay arrears of rent, within one month from the date of service of a notice of demand upon him. This is one additional protection available to a tenant who has committed default in payment of rent for a period of four months or more.
12.Not being satisfied with this, the legislature has further provided another leverage to the tenant in the shape of sub-section (4) of section 20 of Act, 1972. This, however, comes at the stage when a landlord has filed a suit for eviction in an appropriate court of law. This indulgence has been granted by legislature, permitting tenant to deposit the entire amount of rent and damages for use of accommodation or building, due from him, together with interest thereon, at the rate of 9 percent per annum, and also the cost of suit, in the court, where suit has been filed by landlord, at the first hearing of the suit. Here it partially helps the landlord by taking care of expenses he has incurred in filing suit and also the interest on the defaulted amount and damages for use of accommodation. If such payment is deposited by tenant, the court in which the suit is pending, may refuse to pass decree for eviction on the ground of default in payment of rent, that is, on the ground under section 20(2)(a) of Act, 1972, and instead may pass an order relieving tenant from liability for eviction on that ground.
13.Sub-section (4) of section 20, therefore, is an exception to the right of re-entry of landlord recognised by section 20(2)(a) of Act, 1972, which defeats landlord's attempt for eviction of a tenant, which has reached the court by way of a suit, if the tenant pays dues as provided in sub-section (4) of section 20, at the first hearing of the suit. This sub-section, therefore, is an additional protection to the defaulting tenant at a stage when matter has reached the Court. However, in order to attract sub-section (4), the entire onus and responsibility lie upon tenant to satisfy that from all four corners he is entitled to invoke section 20(4), failing which it is the tenant who is bound to suffer.
14.Sub-section (4) is superadded with a proviso. This proviso disentitles tenant from claiming benefit of sub-section (4), where he/she or any member of his/her 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. This proviso is virtually a kind of making an odd man out. Meaning, it provides such a condition which otherwise has nothing to do to attract or not, any of the grounds entitling a landlord to file a suit for eviction enumerated in sub-section (2) of section 20. In normal course, if a tenant or any member of his family has acquired or built any residential accommodation or has got a vacant residential accommodation in the same city, etc. it would be a wholly irrelevant consideration for attracting any of the grounds for eviction enumerated in sub-section (2) of section 20. The conditions provided in proviso to sub-section (4) is virtually a repetition of proviso of section 12(3) of Act, 1972, which, except the phrase for a period of one year's gestation to make the building under tenancy, deemed vacant, if the conditions prescribed therein are satisfied', in all other manner, is virtually pari materia with proviso of sub-section (4). The ground attracting Section 12(3) relating to "deemed vacancy" per se does not bring into force section 20(2)(a) of Act, 1972 or any other ground under section 20(2) of Act, 1972. Still the legislature in its wisdom has chosen to make it a condition while giving an opportunity for making a suit for eviction virtually infructuous on tenant's depositing the arrears of rent, etc., that are detailed in sub-section (4) of section 20, on the first hearing of suit. In other words, a tenant who claims benefit under sub-section (4) of section 20 may check a decree for eviction on the ground of default in payment of rent, only if, he satisfies the Court that proviso to sub-section (4) of section 20 is not attracted in his case. The proviso deprive him from claiming benefit under sub-section (4) of section 20. In order to give effect to scheme under Section 20(2)(a), the tenant who is claiming benefit under sub-section (4), must satisfy that it is attracted and applicable from all four corners entitling him relief thereunder. The facts contemplated in proviso to section 20(4) are the facts ordinarily within his personal knowledge, whether he or any member of his family has acquired or built a residential accommodation in the same city, etc. or not. As already said, if facts satisfying requirements of sub-section (4) is not at all stated by one who invokes sub-section (4) of section 20, he is bound to fail. He has to satisfy by necessary pleading and evidence that sub-section (4) of section 20 is fully attracted in his case and he is entitled for the benefit thereunder. Therefore, it is the tenant who is to plead necessary facts to show that sub-section (4), section 20 is attracted in his case in its entirety and he cannot be non-suited on the ground of proviso thereof. To expect pleading attracting or not sub-section (4), at the stage when the suit is filed, is not only unwarranted but unnecessary and improbable. When suit is filed under section 20(2)(a), the landlord has no concern with the fact whether tenant or any member of his family has got a residential accommodation in the same city, etc. since this fact has nothing to do with his ground entitling him to seek eviction of a tenant on the ground enumerated in section 20(2)(a). The statement of facts, so as to attract or not, proviso to sub-section (4) of section 20 would arise only if the tenant deposits dues contemplated under sub-section (4) of section 20, at the first hearing of suit, and, claims that a decree for eviction against him should not be passed on the ground provided in section 20(2)(a) of Act, 1972. It is at this stage that court will have to find out whether tenant is entitled to any such benefit or not. Thus, it is the tenant who is first to satisfy that sub-section (4) of section 20 is fully attracted in his case and his claim is not obstructed by proviso. He has to plead the requirements thereunder from all four corners.
15.The principle of pleading and evidence is well established that such person will have to make the pleading or furnish proof who shall fail, in case, such pleading or evidence is not available.
16. A suit shall be framed as per broad guidelines in Order II, Code of Civil Procedure (in short, CPC). Rule 1 Order II CPC says that every suit as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. In order to direct a decree for eviction on the ground under section 20(2)(a) of Act, 1972, the ground for a final decision, at the best, would be, whether the tenant is in arrears of rent for a period not less than 4 months, whether he has failed to pay such arrears of rent within one month of receipt of demand notice from landlord. Of course, the question of relationship of landlord and tenant is a pre-condition. In order to prevent further litigation, the suit obviously must include the entire claim and not part thereof. Here this Court finds that by any stretch of imagination, ground or fact regarding availability of residential building with the tenant or any member of his family in the same city, etc. is neither relevant nor necessary in connection to the issue or grounds or subjects in dispute, as set out in a suit for eviction, under section 20(2)(a) of Act of 1972.
17.As already said, sub-section (4) of section 20 is a respite to the tenant, that is, providing an opportunity to him, after a suit for eviction has already been filed on the ground set out in section 20(2)(a). It is the tenant who has to comply with the requirement of sub-section (4) at the first hearing of suit to request the court not to grant decree for eviction on the ground of section 20(2)(a) of Act of 1972. It presupposes that tenant is not disqualified by virtue of proviso to section 20(4). He should not be disentitled for the reason enumerated under proviso to sub-section (4) of section 20. This disentitlement is by operation of law depending on the factum of or acquisition of a residential building in the same city, etc. This acquisition, if so exist, would disentitle a tenant from claiming benefit under sub-section (4) of section 20. This disentitlement is not dependent upon any volition or act of the parties but a particular kind of act, if accomplished, would decide whether or not toattract proviso to section 20(4), and, shall disentitle a person who claims benefit under sub-section (4) in case one fails to show otherwise. That, obviously, would be the tenant. Therefore, the pleading, if any, in this regard has to be made out first by the tenant. And, if not disputed by landlord, the court shall proceed according to law.
18.There is one more reason for which I am prepared to take the above view. A fact which is in special knowledge of a person must be pleaded by him. The fact as contemplated in proviso to section 20(4) must be in the knowledge of tenant and members of his family. Therefore, the tenant must come forward with a specific pleading in this regard.
19.In the present case, the plaintiff-landlord, i.e. respondent nos. 1 to 1/10 filed Suit No. 62 of 1998, alleging that Smt. Maqsood Beg, who is the petitioner before this Court, is occupying House No. 24/343-A, Gali Umar Khan, Pai Chauki Nai Basti, Kotwali Ward, Agra, on a monthly rent of Rs. 40/- besides electricity and water taxes. From January 1994 and on, rent was not paid despite demand. A notice dated 9.12.1996 was served upon tenant demanding rent which went unheeded. It is, in these circumstances, the plaintiff-landlords pleaded for a decree for eviction of petitioner-tenant from the house in dispute, besides recovery of rent, damages, etc. Petitioner-tenant, that is, the defendant in the suit, filed his written statement admitting his tenancy vis-a-vis plaintiff-landlords but denied quantum of rent by stating that rate of rent is Rs. 40/- per annum, including all taxes. He pleaded that there was an agreement for sale of tenanted accommodation. The sale consideration was already transferred to plaintiff-landlords by petitioner-tenant, hence the question of continued tenancy and default in payment of rent does not arise since the petitioner-tenant continued in occupation of the building in dispute, as an owner thereof.
20.Though on an earlier occasion relationship of landlord and tenant has not been disputed, in paragraph 12 of the written statement it is said that tenant has come to know that the plaintiff is not the owner of property in dispute.
21.The suit was filed on 2.5.1998, The first date of hearing was 21.10.1998, when petitioner-tenant appeared before trial court and deposited Rs. 5,000/- by tender form no. 45-C/1. The aforesaid amount satisfied entire dues which the petitioner-tenant ought to have deposited claiming benefit under section 20(2)(4) provided other part of that provision is also satisfied. The petitioner-tenant was aware of this fact inasmuch as tenant's witness, i.e. DW 1, admitted in his oral deposition that there is a house no. 25/46, Mohalla Gariwan, owned by his father, who died long back. Being legal heir, the petitioner-tenant became owner, or, may be, co-owner of the said residential property. To dispel effect of proviso of section 20(4), the petitioner's witness DW 1 stated in his deposition that the said house bequeathed by petitioner's father to petitioner's brother, but this part of statement he could not prove by adducing any evidence including copy of will before trial court. Therefore, it has been disbelieved by court below.
22.The copy of will, however, was placed before revisional court. This additional evidence was admitted by revisional court. Its consequences have also been considered. The revisional court found that under Muslim law relating to succession, no person can bequeathe more than one-third of his property to an individual, unless other legal heirs have consented thereto. The revisional court declined to accept and believe defence taken by petitioner-tenant that entire house stood transferred to his brother, under the will, executed by petitioner's father. The reason given by the Court for not accepting petitioner's defence is not shown to be illegal or bad in law.
23.Moreover, though learned counsel for petitioner advanced the submission that petitioner-tenant possessed any other accommodation was not a fact pleaded in the plaint, but when enquired, how and in what circumstances such pleading can be expected or required at the time of filing of suit by landlord on a ground under section 20(2)(a) , he could not give any reply at all. Further, here is a case where on the factum whether proviso to sub-section (4) of section 20 is attracted or not, the parties have led evidence inasmuch as DW 1, that is, tenant's witness, himself has made a statement and additional evidence on this aspect has been admitted by revisional court also. Before this Court, there is no pleading at all that petitioner-tenant has not acquired a residential accommodation, namely, House No. 25/46, Mohalla Gariwan, Agra and, therefore, obviously proviso to sub-section (4) of section 20 is attracted in this case.
24. The counsel for the petitioner drew my attention to para 20 of the writ petition. A vague pleading has been made thereto, which reads as under:
"20. That the petitioner has got no other accommodation in the city of Agra for the residence and shall be on the street with his family if evicted during the pendency of this writ petition."
25. Interestingly, this paragraph has been sworn on the basis of legal advice. Even otherwise, when called upon learned counsel for petitioner to show as a matter of fact whether petitioner has not acquired any residential accommodation in a vacant state, or has got vacated after acquisition, any residential building in the city of Agra so as to entitle him benefit under sub-section (4) of section 20, he could not place any such statement of fact made even before this Court. Therefore, in a case where a finding of fact has been recorded by both the courts below, concurrently, and not shown perverse, I do not find any reason to interfere in exercise of my jurisdiction under Article 226/227 of the Constitution. In matters like the present, scope of judicial review is extremely limited. Though the petitioner has filed writ petition mentioning only Article 226 of the Constitution, but from the very nature of proceedings/orders challenged before this Court, the jurisdiction of this Court in such matters is referrable to Articles 226 and 227 both. Here ambit of judicial review is not like that of an appellate court. The scope of judicial review under Article 227 has been discussed in detail by this Court in Writ-A No. 11365 of 1998 (Jalil Ahmad Vs. 16th Addl. District Judge, Kanpur Nagar and others) decided on 30.7.2012. There is nothing which may justify judicial review of orders impugned in this writ petition in the light of exposition of law, as discussed in the above judgement.
26.The decision of this Court in the case of Girish Chandra Gupta (supra), has been relied upon by petitioner. A bare reading thereof would show its inapplicability to the case in hand. Therein, the factum regarding availability of accommodation so as to attract proviso to sub-section (4) of section 20 was considered suo moto by revisional court. The reference to sub-section (4) and also the proviso for the first time came to be considered before revisional court on its own and not on the basis of pleadings of any of the parties. The question was raised whether a revisional court can consider such a question of fact and record a finding on its own in respect whereto no party has led evidence, in absence of pleadings. It is in these circumstances the Court remanded the matter to consider entire matter afresh.
27.In my view, in the present case, when petitioner-tenant sought to claim benefit of sub-section (4) of section 20 before the trial court, in order to dispel the effect of proviso to sub-section (4) of section 20, he must have pleaded the necessary facts and led evidence. In his oral deposition, about the residential building that belonged to his father, to which he succeeded the right of ownership after father's death, he has stated his case. The Courts below then have discussed the matter. It is in these circumstances factual aspect has been considered and a finding has been recorded by trial court which has been confirmed by revisional court. The judgements cited at bar, in my view, is thus not attracted to the facts and circumstances of present case.
28.No other issue has been argued.
29.In view of the above, I find no justification to interfere with the impugned judgements and orders.
30.The writ petition lacks merit.
31.Dismissed.
32. No costs.
Order Date :- 29.11.2012 sks-grade iv