During the course of argument much stress was given on the ground that the rate of rent has wrongly been fixed by the trial court. The assertion is that the rent was payable at the rate of Rs. 500/- per month and not at the rate of Rs. 5,000/- per month. This issue has been decided in favour of the plaintiff on the basis of the rent receipts produced by the plaintiff. The defendant never came forward to lead his evidence in rebuttal and in fact, he never came forward to argue the case. A perusal of the order dated 07.07.2018 at page 155 of the paper book clearly indicates that at least 8 dates were fixed for evidence of the defendant and his applications to recall the orders, whereby his opportunity to lead evidence were closed, were allowed on payment of cost on several occasions, but still he did not come forward to lead any evidence. He even after seeking time for argument did not come forward to argue the case and therefore, it cannot be said that the defendant was not afforded proper opportunity of hearing by the court below to rebut the evidence of the plaintiff on the issue of rent deed of land.
IN THE HIGH COURT OF ALLAHABAD
S.C.C. Revision No. 97 of 2018
Decided On: 04.12.2018
Bobby Vs. Raj Kumari
Hon'ble Judges/Coram:
V.K. Birla, J.
Citation: AIR 2019 (NOC) 647 ALL
1. Heard Sri B.B. Paul, learned counsel along with Sri A.P. Paul, learned counsel for the revisionist and Sri H.N. Singh, learned Senior Counsel assisted by Sri Som Veer Singh, learned counsel for the opposite party and perused the record.
2. Present revision has been filed challenging the judgment and order dated 9.7.2018 passed by the Additional District Judge, Court No. 6, Mathura in SCC Suit No. 18 of 2011 (Smt. Raj Kumari vs. Bobby).
3. Facts, in brief, of the case are that the SCC suit was filed by the plaintiff-landlord (respondent herein) against the defendant-tenant (revisionist herein) for rent and eviction on the ground that the defendant is tenant in the shop measuring 18 feet x 40 feet at the rate of Rs. 5,000/- per month. The shop was let out in February, 2009 and it was also agreed that the defendant shall also pay a sum of Rs. 70,000/- as advance (pagdi) within six months, but he did not pay the same. The rent is due from 01.06.2009 and despite of repeated request the same was not paid. The shop is a new construction and the provisions of the U.P. Act 13 of 1972 are applicable because of being new construction as well as rent of shop being Rs. 5,000/- per month. A registered notice dated 15.09.2011 was given to the petitioner and his tenancy was terminated. It was further asserted in the notice that the defendant was liable to pay arrears of rent for the period of 27 months to the tune of Rs. 1,35,000/- and tenancy was also terminated after expiry of notice period of 30 days. Damages at the rate of Rs. 10,000/- were also claimed till the vacation of the shop. The notice was duly received by the defendant and was replied. In his reply he claimed that the rate of rent is Rs. 500/- and default in payment of rent was denied. It was asserted that U.P. Act 13 of 1972 was applicable. In view of this reply it was further asserted in the plaint that after the shop in question was let out, three other shops were let out to other persons on higher rent. A shop measuring 18 feet x 40 feet was let out to Sri Anoop Agrawal at the rate of Rs. 8,000/- per month who had also given advance of Rs. 1,00,000/-. The second shop measuring 20 feet x 40 feet was let out to Sri Rajesh Agrawal at the rate of Rs. 8,000/- per month and a sum of Rs. 1,00,000/- was received in advance and third shop measuring 6 feet x 45 feet was let out to Sri Nazim Khan at the rate of Rs. 3,000/- per month and therefore, it was asserted that there is no question of letting out this big shop at the rate of Rs. 500/- per month to the tenant.
4. The suit was contested by the defendant on the ground that the rate of rent was Rs. 500/- per month and Rs. 70,000/- were paid to as advance (pagdi) to the plaintiff, which is refundable after termination of tenancy. The notice was correctly replied and rent was regularly paid, however, the plaintiff never issued any receipt. It was also asserted that rent was paid upto August, 2011 and thereafter the plaintiff refused to accept the rent. It was also asserted that the defendant was entitled for benefit of Section 114 of Transfer of Property Act. The defendant subsequently came to know about the fact that the shop is an old construction and the provisions of U.P. Act 13 of 1972 are applicable and as such, the defendant is entitled for benefit of Section 20(4) of the Act. In replication, the assertions made in the written statement were denied.
5. Initially seven issues were framed by the trial Court, which were recasted and ten issues were framed by the trial Court. In support of his case, apart from the oral evidence and other documents plaintiff filed rent receipts as paper no. 13(Ga)/1 to 13(Ga)/3 and House Tax Assessment and Water Tax Assessment as paper no. 55Ga and copy of notice sent by Tax Assessment Officer, Nagar Palika Parishad, Mathura to the plaintiff. The defendant filed his statement in the shape of affidavit and filed few photographs as documentary evidence. At the time of hearing, defendant did not appear.
6. Issue No. 1 regarding landlord-tenant relationship was decided in affirmative; Issue no. 2 regarding rate of rent was decided in favour of the plaintiff holding that the rate of rent was Rs. 5,000/- per month. On issue no. 3 regarding applicability of the U.P. Act 13 of 1972 it was held that the first assessment was of the year 2006-08 and therefore, the Act is not applicable. Apart from that it was also held that since the rate of rent is more than Rs. 2000, therefore, in view of the provisions of Section 2(1)(g) of the Act, the shop in question was exempted from operation of the Act. On issue no. 4 it was found that the defendant has defaulted in making payment of rent from June, 2009 to August, 2011. On issue no. 5 it was held that the notice dated 15.9.2011 was duly served on the defendant, which was also replied by him and as such, it was validly served. On issue no. 6, the benefit of Section 20(4) of the Act was denied on the ground that the Act itself is not applicable in the present case. On issue no. 7 it was found that since there was no rent deed and there is no document in this regard, therefore, the provisions of Section 114 of Transfer of Property Act are not applicable and the defendant is not entitled to claim any benefit under the aforesaid provisions. On issues no. 8, 9 and 10, it was found that the plaintiff is entitled for possession of the shop and regarding payment of arrears it was found that the plaintiff is entitled for a sum of Rs. 1,40,000/- for the period from 01.06.2009 to 30.09.2011. It was further found that since in the year 2009 the rate of rent was Rs. 5,000/- per month, therefore, the plaintiff is entitled for damages at the rate of Rs. 7,000/- per month, however, it was held that the plaintiff was not entitled for rent for the period w.e.f. 06.06.2014 to 02.09.2015 for the period during which the defendant was not in possession. The suit was decreed in favour of the plaintiff.
7. Challenging the aforesaid judgment, submission of learned counsel for the petitioner is that the building is old and provisions of the Act are applicable; the defendant is entitled for benefit of Section 20 (4) of the Act and the rate of rent was Rs. 500/- per month only and not Rs. 5,000/- as held by the court below. Elaborating the argument, it was submitted that in paragraph 4 of the written statement the rate of rent being Rs. 5,000/- was categorically denied and assertion regarding non-applicability of Act being a new construction was also denied as plaintiff has not discharged his burden to prove the same. It was further submitted in his affidavit given as DW-1, the defendant in paragraph 8 has stated that initially the defendant was not aware as to whether the shop is a new construction or a old construction but after enquiry he came to know that the shop in question is a very old construction. Regarding default in payment of rent, it was submitted that court below has wrongly relied on forged and manufactured receipts of rent produced by the plaintiff; the defendant is regularly paying the rent fixed by the landlord-plaintiff and advance of Rs. 70,000/- was also paid but court below has not considered the same; the issue regarding arrears of Rs. 1,40,000/- has been decided merely on the basis of assumption whereas rate of rent of shop in question is Rs. 500/- only; the rate of rent of the shop for the future use has been illegally fixed at Rs. 7,000/- per month whereas the shop is far away from the main market; the plaintiff has claimed that there were two other tenants on the adjoining shop, but none of them was produced to prove the rate of rent and the entire proceedings have been decided in a hasty manner.
8. Placing reliance on provisions of Order 13 Rule 1 C.P.C., it is submitted that plaintiff had not filed rent deed, assessment register with deliberate intention to conceal the material facts. Placing reliance on Sections 62 and 103 of the Indian Evidence Act, it was submitted that without establishing the loss of the original rent deed, which is the basis of the suit, the secondary evidences could not have been produced by the plaintiff. Provisions of Section 2(2) of the U.P. Act 13 of 1972 and Section 106 of the Act were also placed before this Court and it was further submitted that the plaintiff has failed to prove his case and in view of the assertions already made, it was further submitted that the plaintiff must stand on his own leg and he cannot take any benefit of any defect or weakness in the case of the defendant.
9. In support of his argument, learned counsel for the revisionist has placed reliance on judgments of Maneklal Mansukhbhai vs. Hormusji Jamshedji Ginwalla & Sons, MANU/SC/0037/1950 : AIR (37) 1950 SC 1; Sital Das vs. Sant Ram and others, MANU/SC/0156/1954 : AIR 1954 SC 606; A.J. Peiris vs. State of Madras, MANU/SC/0157/1954 : AIR 1954 SC 616; H. Siddiqui (Dead) by LRs vs. A. Ramalingam, MANU/SC/0174/2011 : 2011 All. C.J. 1133; Vishnu Agarwal vs. State of U.P. and another, MANU/SC/0147/2011 : 2011 All. C.J. 1138; Om Prakash Gupta vs. Dig Vijendrapal Gupta, MANU/SC/0209/1982 : (1982) 2 SCC 61; Thakur Narain Singh vs. State of Rajasthan, (1982) S SCC 66; Nand Kishore Marwah and others vs. Samundri Devi, MANU/SC/0540/1987 : (1987) 4 SCC 382; Rashpal Malhotra vs. Mrs. Satya Rajpur and another, MANU/SC/0550/1987 : (1987) 4 SCC 391; Suresh Kumar Jain vs. Shanti Swarup Jain and others, MANU/SC/0576/1997 : (1997) 9 SCC 298; Saleem vs. District Judge, Muzaffarnagar and others, MANU/SC/0623/1998 : (1998) 7 SCC 242; Ram Kumar Das vs. Jagdish Chandra Deo, Dhabal Deb and another, MANU/SC/0056/1951 : AIR (39) 1952 SC 23; Mohammad Rihan Ansari vs. Sardar Jaswant Singh, MANU/UP/0759/2009 : 2010 (1) ARC 94; Anil Kumar Verma vs. Smt. Manju Gupta, 2017 (2) ARC 409; and Brahma Nand Puri vs. Neki Puri since deceased represented by Mathra Puri and another, MANU/SC/0295/1964 : AIR 1965 SC 1506.
10. Per contra, Sri H.N. Singh, learned Senior Advocate submitted that in the present case it was a categorical assertion that the Act is not applicable on the shop in dispute as the shop is new construction, which was assessed for the first time in the year 2008 and also for the reason that the rate of rent is Rs. 5,000/- per month. It was further pointed out that undisputedly the shop in question is measuring 18 ft. x 40 ft. and is a big shop and therefore, it is not thinkable that the same could or would have been let out at the rate of Rs. 500/- per month only whereas it has been specifically stated that the other adjoining shop of the same size shops were rented out on a higher amount i.e. at the rate of Rs. 8,000/- per month. He further submitted that nothing contrary to the same was proved by the defendant. It was further submitted that the defendant never came forward to lead his evidence and did not appear at the time of hearing. He submitted that the receipts, which were filed before the Court, were duly proved. It is submitted that nothing contrary was given in evidence by the defendant. It was submitted that once the Act itself is not applicable, the question of grant of any benefit of Section 20 (4) of the Act does not arise. It was submitted that when there is no written agreement between the parties and the tenancy has been terminated under Section 106 of the Transfer of Property Act, the defendant-revisionist is not entitled for benefit of Section 114 of the Transfer of Property Act. It was further submitted that in any view of the matter, defendant has not proved any rent agreement to claim benefit of Section 114 of the Transfer of Property Act. It is submitted that in such case the service of notice under Section 106 of Transfer of Property Act is sufficient and undisputedly a notice was received by the defendant and was also replied. In support of his argument learned counsel for the opposite party has placed reliance on judgment of Hon'ble Apex Court in the case of Arjun Khiamal Makhijani vs. Jamnadas C. Tuliani and others, MANU/SC/0031/1989 : (1989) 4 SCC 612 and Judgment of this Court passed in the S.C.C. Revision No. 53 of 2018 (M/s. Superhouse Leather Ltd. vs. Waqt S. Ahmadhasan-44 Ex. II, Kanpur) decided on 15.05.2018.
11. I have considered the rival submissions and perused the record.
12. On perusal of record, I find that on issue no. 2 regarding rate of rent the court below has considered the rent receipts filed by the plaintiff for the months of March, April and May 2009 wherein the name of the tenant is shown as Bobby and the name of the landlord is shown as Dayal Singh and Dayal Singh has received the rent and the rate of rent shown is shown Rs. 5,000/-. These receipts were proved by PW-1. The defendant except filing his affidavit did not produce any evidence whatsoever to contradict these receipts. He filed his statement in the shape of affidavit and he never came forward for cross-examination despite of having been several opportunities. I also find that that except the bald denial, there was nothing on record to prove otherwise. In view of the specific case of the plaintiff that the other adjoining shop of same size that have been let out at the rate of Rs. 8,000/- per month and also considering the size of the shop (18 feet x40 feet), which is a new construction as per the first assessment of the year 2008, I find that there is no perversity in the finding recorded by the court below in this regard so as to attract exercise of revisional powers in the findings of fact.
13. Insofar as the issue no. 3 regarding applicability of the U.P. Act 13 of 1972 is concerned, once it is found that the shop in question was assessed for the first time in the year 2008 on the basis of documentary evidence, which was though rebutted by the defendant, the finding has correctly been recorded by the trial court that the U.P. Act 13 of 1972 is not applicable. Apart from that once a finding has been recorded that the rate of rent was Rs. 5,000/- per month, whether it was a new construction or the old construction, the provisions of the Act are not applicable. For the same reasons once the provision of the Act are not applicable, the court below was perfectly justified in refusing to grant any benefit of Section 20(4) of the Act.
14. It is also pertinent to note that in the present revision no challenge has been raised to the finding recorded on non-applicability of the Act and the due service of notice. As such even this argument has been raised before this Court, without there being any ground in the memo of revision. Hence, there is no reason to disturb the findings recorded by the Court below on this issue.
15. During the course of argument much stress was given on the ground that the rate of rent has wrongly been fixed by the trial court. The assertion is that the rent was payable at the rate of Rs. 500/- per month and not at the rate of Rs. 5,000/- per month. This issue has been decided in favour of the plaintiff on the basis of the rent receipts produced by the plaintiff. The defendant never came forward to lead his evidence in rebuttal and in fact, he never came forward to argue the case. A perusal of the order dated 07.07.2018 at page 155 of the paper book clearly indicates that at least 8 dates were fixed for evidence of the defendant and his applications to recall the orders, whereby his opportunity to lead evidence were closed, were allowed on payment of cost on several occasions, but still he did not come forward to lead any evidence. He even after seeking time for argument did not come forward to argue the case and therefore, it cannot be said that the defendant was not afforded proper opportunity of hearing by the court below to rebut the evidence of the plaintiff on the issue of rent deed of land.
16. In view of the discussions made hereinabove, the argument of learned counsel for the defendant-revisionist on this issue is liable to be rejected and it is for this reason the argument advanced by learned counsel for the revisionist placing reliance on provisions of Order 13 Rule 1, Sections 62 and 103 of the Indian Evidence Act and Section 2 (2) of the U.P. Act 13 of 1972 are clearly not required to be gone into in detail.
17. It is case where provisions of U.P. Act 13 of 1972 are not applicable and a notice under Section 106 of the Transfer of Property Act was admittedly duly served on the defendant, therefore, there is no illegality in passing the order of eviction of the defendant. Once it is found that the rate of rent is Rs. 5,000/- per month, there is no infirmity in the order of the trial court, however, in the facts and circumstances of the case, the rate of damages for future use fixed at the rate of Rs. 7,000/- per month is reduced to Rs. 5,000/- per month and the impugned judgment and order stands modified only to that extent.
18. Insofar as the claim of benefit of Section 114 of the Transfer of Property Act is concerned, no such ground has been taken in the present case to challenge the judgment impugned herein, however, even otherwise no written agreement between the parties was proved and as such, the petitioner is not entitled for benefit of Section 114 of Transfer of Property Act.
19. Present revision is accordingly dismissed.
20. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that:
(1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 28.2.2019.
(2) The tenant-revisionist shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-revisionist shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-revisionist shall pay damages @ Rs. 5,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 28.2.2019 or till the date he vacates the premises whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-revisionist shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-revisionist shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the shop is not vacated as per the undertaking given by the tenant-revisionist, he shall also be liable for contempt.
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