Dismissed

Naveen Dixit v. Smt. Kamla Gandhi and 12 Others

Allahabad HC6 Dec 2018A227/8717/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court dismissed the challenge to a lower court decree restoring an eviction suit for non-payment of rent. The court held the petitioner defaulted as direct payment claims lacked evidence, while admitting deposits in court or with authorities.

What did the court decide?

The petition under Article 227 was dismissed; the impugned decree of eviction and recovery of arrears of rent stands upheld.

Naveen Dixit Vs Smt. Kamla Gandhi and 12 Others — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 19

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Case :- MATTERS UNDER ARTICLE 227 No. - 8717 of 2018

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Petitioner :- Navneet Dixit Respondent :- Smt. Kamla Gandhi And 12 Others Counsel for Petitioner :- Madhav Jain Counsel for Respondent :- Sumit Daga

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Hon'ble Manoj Kumar Gupta,J.

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The instant petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution has been filed by the defendant/ petitioner assailing the judgement dated 31.3.2017 passed by Judge Small Causes Court in SCC Suit No.568 of 1974 decreeing the suit for recovery of arrears of rent and eviction. The petitioner has also challenged the judgement and decree dated 10.8.2018 passed by First Additional District Judge, Agra in SCC Revision No.17 of 2017 dismissing the revision.

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In brief, the facts giving rise to the instant petition are that SCC Suit No. 568 of 1974 was instituted by Sukhdev Das Gandhi, predecessor-ininterest of the present plaintiff/respondents against Shyam Sundar Sharma, predecessor-in-interest of the petitioner herein. The suit was founded on the allegation that the defendant, who was tenant of a premises in pursuance of an allotment order, had defaulted in payment of rent since the inception of tenancy i.e., from 10.7.1958 and had failed to pay the same despite notice dated 8.12.1973 served upon him on 10.12.1973. It was alleged that the rent of the premises as agreed between the parties was Rs.40/- per month besides house tax and water tax.

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However, the defendant got the premises allotted at the rate of Rs.17/- per month. It was further alleged that after enforcement of U.P. Act No.13 of 1972 (for short 'the Act'), the plaintiff became entitled to claim rent at the rate of Rs.25.56 per month besides taxes.

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The defendant contested the suit by filing a written statement claiming that the rent of the tenanted premises was Rs.17/- per month as fixed under the allotment order issued by Rent Control & Eviction Officer. He disputed that there was any agreement for rent being paid at the rate of Rs. 40 per month. The defendant also pleaded that since rent was less than Rs.25/- per month, therefore, the plaintiff never became entitled to claim enhanced rent after enforcement of U.P. Act No.13 of 1972 nor was entitled to house tax and water tax. It was also the categorical case of the defendant that he had paid the entire rent at the rate of Rs.17/- per month to the plaintiff from time to time and after receipt of notice only rent of two month was due, which was duly remitted by two money orders each of Rs.17/-, thus there was no default in payment of rent.

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The trial court, after considering the oral and documentary evidence filed by the parties, decreed the suit and it accepted the contention of the petitioner that the rent was Rs.17/- per month. The trial court also held that rent would stand enhanced to Rs.21.25 per month in view of Section 5 read with Section 3(k) of the Act. The trial court further held that the plaintiff/ respondent would not be entitled to claim house tax, rent being

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less than Rs.25/- per month. However, while deciding the issue relating to default in payment of rent, the trial court held that the only evidence filed by the petitioner regarding payment of rent was two money order receipts each of Rs.17/- . No other evidence was filed to prove payment of rent till the date of receipt of notice. The tenant had not deposited any amount under Section 20(4) for claiming benefit of the said provision and consequently found him to be a defaulter in payment of rent within the meaning of Section 20(2) of U.P. Act No.13 of 1972 and accordingly decreed the suit for eviction and recovery of arrears of rent.

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The petitioner feeling aggrieved thereby filed a revision. Before the revisional court, the petitioner filed a chart showing the manner of payment of rent. The revisional court discussed the said chart in great detail in its judgement. Under Item No.2, the petitioner claimed deposit of Rs.510/- in Misc. Case No.9 of 1961; under Item No.3, he claimed deposit of Rs.672/- with Nagar Mahapalika, Agra against house tax due on the building and under Item No.7 alleged remittance of Rs.204/- as rent by money order on 7.1.1974 but which was refused. The trial court held that certain documentary evidence was filed by the petitioner in support of these deposits. Thus, if the aforesaid amounts are taken into consideration, it adds upto Rs.1386/-, while the total amount found due was Rs.2913/-, after deducting Rs.34/- sent by two money orders. The trial court refused to accept the claim relating to payment of rent for the remaining period directly to the landlord as no documentary evidence was brought on

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record in this regard. The revisional court held that even if Rs.1386/which the petitioner claim to have deposited under item No. 2, 3 and 7 is deducted, the balance amount which remained unpaid, being more than 4 months' rent on the date of notice, the petitioner had committed default in payment of rent. It accordingly upheld the judgement and decree of the trial court.

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The sole submission of learned counsel for the petitioner is that the defendant in his oral statement categorically stated about payment of rent to the plaintiff and also took plea that rent receipts were not issued. However, trial court nor the revisional court has adverted to the oral testimony of the defendant.

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The Court, with the assistance of learned counsel for the parties examined the oral testimony of DW1. It found that in cross-examination the defendant has stated thus :-

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From the above statement of DW1 made during cross-examination, it is abundantly clear that the defendant did not pay rent to the landlord directly. He admitted in his testimony that whatever rent was paid by him that was by depositing the rent in court or with the Nagar Mahapalika and receipts in respect whereof, according to him, were filed in the case. On the face of it, the aforesaid admission clearly demolishes the case of the

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petitioner that he paid rent directly to the landlord for the remaining period and against which receipt was not issued to him. The trial court, in its judgment has duly considered the statement of DW1. However, it did not place reliance upon the bald oral statement of DW1 that he had paid the entire rent, but receipts were not issued to him. Concededly, the period in respect of which the defendant claimed payment of rent directly to the landlord is more than four months, which definitely constitutes a default in payment of rent within the meaning of Section 20(2) of the Act.

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No other submission has been made by learned counsel for the petitioner.

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The petition lacks merit and is dismissed.

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Order Date :- 6.12.2018 skv

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(Manoj Kumar Gupta, J.)

Naveen Dixit v. Smt. Kamla Gandhi and 12 Others

Case brief

What is this about?

What did the court decide?

Naveen Dixit v. Smt. Kamla Gandhi and 12 Others

Case brief

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What did the court decide?

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