Partly allowed

Naveen Kumar and Another v. Mukesh Kumar

Allahabad HC4 Dec 2018CLRE/54/2011

Case brief

AI extract

What is this about?

In a civil revision challenging a decree for eviction and rent arrears, the High Court relied on precedent to hold that a notice demanding excessive rent does not invalidate the termination. The Court modified the monetary decree to allow for security deposit adjustment but maintained the eviction order, granting temporary stay via an undertaking.

What did the court decide?

Decree modified to allow adjustment of Rs. 25,000 security deposit against arrears; eviction order upheld with six-month stay subject to undertaking and payment terms.

Naveen Kumar and Another Vs Mukesh Kumar — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 19

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Case :- CIVIL REVISION No. - 54 of 2011

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Revisionist :- Naveen Kumar & Another Opposite Party :- Mukesh Kumar Counsel for Revisionist :- J.P.S. Chauhan Counsel for Opposite Party :- Antesh Dwivedi,Anuj Chaudhary,C.P.Mishra,Lalji Pandey,Swarn Kumar Srivastava,Umesh Chandra Tripathi

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Hon'ble Manoj Kumar Gupta,J.

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The instant revision has been filed under Section 25 of the Provincial Small Cause Courts Act, 1887 by the defendants (for short 'the tenants') of SCC Suit No. 5/2008 challenging judgment and decree dated 27.11.2010 passed by Judge Small Cause decreeing the suit of the plaintiffrespondent (for short 'landlord') for recovery of arrears of rent and for eviction. The trial Court had granted three months' time to the tenants to vacate the demised premises. It has also passed a decree for recovery of arrears of rent since 1.12.2005 till date of delivery of possession @ Rs. 700/- per month and has awarded cost of Rs. 150/- towards expense of notice.

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The trial Court has held that the provisions of U.P. Act No. 13 of 1972 are not applicable to the demised premises; that the tenancy was terminated by means of a valid notice under Section 106 of the Transfer of Property Act, 1882 duly served upon the tenants; that the determination of tenancy not being under Section 111(g) of the Transfer of Property Act, the provisions of Section 114 thereof would not apply; that rate of rent was Rs. 700/- per month and not Rs. 1000/- as claimed by the landlord.

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The sole submission of learned counsel for the revisionist-

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tenants is that the notice by which tenancy was terminated demanded rent @ Rs. 1000/- per month, although the trial Court has found that rate of rent was Rs. 700/- per month, and thus, according to him, notice demanding rent at a higher rate would be illegal. In other words, the submission is that the suit founded on such a notice could not have been decreed. He further submitted that the tenants have given a security of Rs. 25,000/- at the time they entered into tenancy, but the said amount had not been adjusted.

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Counsel for the landlord submitted that even if rent was demanded at a higher rate, it would not render the notice invalid and in support of the said contention, he has placed reliance on a Full Bench judgment of this Court in Gokaran Singh and others Versus Ist Additional District And Sessions Judge, Hardoi and others, 2000 (40) ALR 405. He admits that Rs. 25,000/- was given as security by the tenants at the time of entry into the demised premises and he has no objection, in case, such amount is directed to be adjusted from the decretal amount.

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The Full Bench in Gokaran Singh (supra) has specifically dealt with the issue whether notice of demand would be rendered invalid on the ground rent had been demanded at a higher rate than the correct rate and if so, whether the tenants would stand absolved from the duty of complying with such a notice. The Full Bench, after considering a number of precedents on the point, held as under : -

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"22..... But if the plea taken by the tenant is found to be false and incorrect, he will suffer the consequence in the form of ejectment from the building in his tenancy.

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Therefore, in the above noted decisions, this Court was right in holding that the notice whereby exaggerated amount of rent was demanded or where no amount or lesser amount of rent is mentioned, was a valid notice but in case tenant did not want to comply with the said notices, it was ruled that he was bound to remit or pay the amount of rent at the rate admitted to him, if he wanted to save his tenancy, in view of provisions of Clause (1) of Section 108 (B) of the Transfer of Property Act and Sections 37, 38 and 46 of the Contract Act, which are applicable, being the General Law in regard to landlord and tenant, and not provided for in the Act specifically, to the contrary. The view taken in all aforesaid decisions seems to be quite reasonable. We, therefore, agree with and approve the aforesaid decisions rendered by the Division Benches and Single Judges of this Court."

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That apart, in the instant case, since provisions of U.P. Act No. 13 of 1972 were not applicable and the tenancy was terminated not on ground of default in payment of rent, but by notice simpliciter under Section 106 of the Transfer of Property Act, therefore, even if rent was demanded at a higher rate, it would not render the notice invalid.

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Since, counsel for the landlord has no objection, in case, security amount of Rs. 25,000/- is directed to be adjusted in the decretal amount, the judgment of the trial Court decreeing arrears of rent is modified so that the tenants would be entitled to claim adjustment of Rs. 25,000/while calculatilng the decretal amount payable under the decree.

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The impugned judgment stands modified to the extent stated above. The other part, relating to eviction, is maintained.

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At this stage, counsel for the revisionist-tenants prayed for some time to vacate the demised premises to which

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counsel for the landlord has no objection.

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Accordingly, six months' time is granted to the revisionisttenants to vacate the demised premises subject to their furnishing an undertaking before Judge Small Cause that they would handover vacant possession of the demised premises to the landlord at the expiry of six months from today, and that they shall not induct any third party in the demised premises. It is further provided that the tenants shall pay entire arrears of rent, after adjusting Rs. 25,000/towards security within a period of three weeks from today, and shall also deposit future rent/damages @ Rs. 700/- per month for next six months within the same period. In case of default in any of the above conditions, the protection granted by this order shall stand vacated automatically and it shall be open to the landlords to execute the decree forthwith.

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The revision stands disposed of accordingly.

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(Manoj Kumar Gupta, J.) Order Date :- 4.12.2018 AM/-

Naveen Kumar and Another v. Mukesh Kumar

Case brief

What is this about?

What did the court decide?

Naveen Kumar and Another v. Mukesh Kumar

Case brief

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What did the court decide?

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