Writ against revision order set aside defendant-tenant's eviction suit. Court found no initial rent default, rendering arrears compliance unnecessary. Fixed new monthly rent of Rs. 500 effective January 2019.
Petition disposed of; tenant to pay Rs. 500 per month rent from January, 2019 by 7th of each succeeding month.
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Court No. - 19
Case :- WRIT - A No. - 56507 of 2010
Petitioner :- Shiv Kumar Respondent :- Prahlad And Another Counsel for Petitioner :- Anoop Trivedi, Vikash Chandra Tiwari Counsel for Respondent :- D. S. Pandey
Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the parties.
The instant petition is directed against the judgement and decree dated 21.7.2005 passed by Additional District Judge, Court No.14, Ghaziabad in SCC Revision No.116 of 2002, whereby the revision filed by the defendant-respondent (herein after referred to as 'the tenant) was allowed and the decree passed by Judge Small Causes in SCC Suit No.73 of 1998 dated 30.11.2002 was set aside. The petitioner has also challenged the order passed by the revisional court dated 31.7.2010 dismissing the review application.
SCC suit in question was instituted by Parmatma Sharanrespondent no.2 against the tenant claiming arrears of rent and for eviction from the premises in his tenancy (House No.48, Mohalla Sohan Lal, Sihani Gate, Ghaziabad). It was alleged that the tenant had defaulted in payment of rent, which was Rs.250/- per month since 1st March, 1989; that his tenancy was terminated by a notice under Section 106 of the Transfer of Property Act dated 6.3.1998 which was duly served upon him, but still he failed to pay the arrears of rent nor vacated the demised
premises and consequently, the suit was instituted.
During pendency of the suit, the plaintiff-respondent transferred the tenanted premises to the petitioner, Shiv Kumar (since dead), now represented before this Court by his heirs and legal representatives.
The suit was contested by the tenant by taking a specific plea that no rent was due against him and it was duly paid to the erstwhile owner and landlord i.e. respondent no.2. He also claimed that rent till June 2000 had been duly deposited and that notice in question did not result in termination of his tenancy.
The trial court found that relationship of landlord and tenant between the petitioner and respondent no.1 was duly established upon purchase of the property by the petitioner; that provisions of U.P. Act No.13 of 1972 were applicable; that rate of rent was Rs.250/- per month; that the tenant had defaulted in payment of rent since 1.3.1989 and that he was not entitled to the benefit of Section 20 (4) of the Act.
The revisional court concurred with the finding recorded by the trial court regarding relationship of landlord and tenant between the parties and the rate of rent being Rs.250/- per month. However, the revisional court took specific note of the fact that PW-1 Shiv Kumar in his statement admitted that rent upto 6th March 1998 was duly paid by the tenant to the original plaintiff (respondent no.2). Accordingly, the finding recorded by the trial court that rent was not paid since 1.3.1989 was held to be illegal and perverse having been recorded ignoring the admission of PW-1. The
revisional court thereafter also proceeded to hold that the benefit of Section 20 (4) of the Act would be available, as there was a mere delay of 4 to 5 days in depositing the amount.
Learned counsel for the petitioner submitted that the tenant had not paid rent since a long time and the finding of the trial court regarding default in payment of rent was perfectly justified, but the revisional court wrongly interfered with the same. He further submitted that the rent of Rs.250/- per month was settled long back and that respondent no.1 should pay enhanced rent to the petitioner.
On the other hand, learned counsel for the respondent-tenant Sri D.S. Pandey submitted that the finding recorded by the trial court regarding default in payment of rent being wholly perverse, was rightly set aside by the revisional court. However, he states that the respondent has no objection to pay rent of Rs.500/- per month from January, 2019 onwards.
I have considered the submissions made by learned counsel for the parties and perused the evidence on record.
The revisional court has in the impugned judgement quoted an extract from the testimony of Shiv Kumar, PW-1 which is as under:-
"izgykn us ijekRek 'kj.k ds fookfnr edku dk fdjk;k fn0 063-98 rd dk fn;k gqvk FkkAß
Under Section 20 (2) of the Act, a suit for eviction of a tenant from
a building after the determination of the tenancy could be instituted on the
4.
ground that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Thus, the statutory requirement is that on the date of notice, the tenant should have been in default of rent of not less than four months. In the instant case, the notice is dated 6.3.1998 and it was admitted by PW-1 that rent upto the said date was duly received by Parmatma Sharan, the original plaintiff (respondent no.2). Consequently, there was no question of the tenant being in default within the meaning of Section 20 (2) of the Act.
Since the tenant was not in default, the issue relating to compliance of Section 20 (4) looses its significance.
Having regard to the above discussion, this Court does not find any illegality in the judgement of the revisional court to warrant interference in exercise of extraordinary jurisdiction, but in view of the statement made by learned counsel for respondent no.1 that the tenant is ready to pay rent in future at the rate of Rs.500/- per month, it is hereby provided that the rate of rent since January, 2019 would be Rs.500/- per month, which the tenant would be liable to pay by 7th of each succeeding month.
The petition stands disposed of accordingly.
(Manoj Kumar Gupta, J)
Order Date :- 11.1.2019 SL
2 issues framed by the court
Whether to interfere with the revisional court's finding that the tenant was not in default as rent was paid up to the date of the notice.
Whether the tenant needs to comply with Section 20(4) regarding arrears since the statutory default under Section 20(2) did not exist.
2 provisions across 2 enactments
Shiv Kumar
Prahlad
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
