State of Chhattisgarh and Anr. Vs Smt.Ihyaunnishakhan

1. The present first appeal under Section 96 of the Code of Civil Procedure, 1908 has been filed by the appellant/ State against the impugned judgment and decree dated 21.08.2006 passed by learned 9th Additional District Judge, (FTC), Bilaspur, in Civil Suit No. 18-B/2005, whereby the decree for recovery of arrears of Rs. 55,000/-

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along with interest @ 6% per annum from 07.02.2004 has been passed in favour of the plaintiff.

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2. The brief facts of the case are that the plaintiff had filed the civil suit for recovery of arrears of rent of Rs. 55,000/- from the defendant. The pleadings made in the plaint that the plaintiff is the owner and possession holder of the suit house situated at Bharti Nagar, Bilaspur, which was rented to the defendant No. 3 for their official purposes on the monthly rent of Rs. 5000/- from 01.10.1992 and the tenancy agreement executed between them. The said agreement was renewed from time to time. It was the condition of the agreement that after every three years the rent of the house is to be enhanced to 10 % and thereafter, the defendant No. 3 shall pay the enhanced amount of rent. When the plaintiff was required the suit house for her own, she asked the defendant No. 3 to vacate the house and on 01.03.1999, the defendant No. 3 has delivered the vacant possession of the house of the plaintiff. However, the agreed rent as per the tenancy agreement has not been paid by the defendant No. 3 from March, 1998 till February, 1999 and therefore, the plaintiff has served a legal demand notice on 04.07.2002. In reply to that, the defendant No. 3 has stated that the issue with respect to payment of enhanced rent is under consideration before the higher authorities and as soon as they will get the instruction from the higher authority, they will inform her. Since, neither any information was given to her nor any arrears of rent has been paid to her, she filed a civil suit on 07.12.2004.

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3. The defendants have filed their written statement, though, they have admitted the tenancy agreement executed between the parties on

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01.10.1992, however, they denied their liability to pay the arrears of rent on the ground that the plaintiff herself violated the terms and conditions of the tenancy agreement and has not provided any facilities over the subject house. The rent excess to the rent fixed as per the collector rate has already been paid to her. The plaintiff has also obtained the rend to terrif which was required by the defendants to adjust in the total rent but the same has not been adjusted and therefore, there is no outstanding rent against the defendants to pay to the plaintiff and the suit is liable to the dismissed.

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4. On the basis of the pleading may by learned counsel for the parties, the learned trial Court has framed the following issues:-

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1- D;k okfnuh ,o izfrokfnuh dz03ds e/; gq, bdjkjukek ds vuqlkj edku dk ekfld fdjk;k 5]000@&:i;s Fkk\

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2- D;k bdjkjukek ds vuqlkj edku ds fdjk;s fd jkf’k 3 o"kZ ds I’prk 10 izfr’kr dh o`f) dh tkus dh ‘’krZ Fkh \

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3- D;k izfroknh x.k }kjk ekpZ 1998 l a s Qjojh 1999 dqy 11ekg dk fdjk;k 55]000@&:0 vnk ugh fd;k \

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4- lgk;rk ,oa O;; \

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vfrfjDr okn iz’u

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5- D;k okn edku fd Nr Hkh fdjk;snkjh esa lfEefyr jgh gS \

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;fn gka rks D;k izfroknh dza03 }kjk mi;ksax ugha fd;k x;k \

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6- D;k okn le;kof/k okgz; gS \

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5. In support of her claim, the power of attorney holder of the plaintiff Sarfarujul Haq has examined as PW/1 and they have relied upon the document (Ex-P/1 to P/16) which are the demand notice of the rent, reply filed by the defendant No. 3 and its postal receipts. The defendants have also examined (DW/1) T. Ekka, (DW/2) Sant Kumar and they relied upon the documents (Ex-D/1), which are the agreed map and details of the house which was given on rent to the defendant

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No. 3, Ex-D/2 which are the rent agreement dated 01.10.1992, (Ex-D/3) which are the document of handing over the possession of the suit house of the plaintiff and (Ex-D/4) which is the details of the rent pay to the plaintiff from 01.10.1992 till 28.02.1998.

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6. After considering the entire evidence produce by the parties, the learned trial Court partly decreed the suit and held that the plaintiff is entitled for recovery of Rs. 55000/- as arrears of rent from March, 1998 to February, 1999 along with the interest @ 6% per annum which is under challenge in the present appeal.

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7. Learned counsel for the appellant would submit that there was no condition of enhancement in the rent agreement that the rent may be enhanced in every three years @ 10%. The limited part of the suit house was provided by the plaintiff for which the rent has been paid to her and the vacant possession of the subject house was handed over to the plaintiff. Since the plaintiff has failed to provide the proper accommodation as per the rent agreement and excess rent have been paid to her, she is not entitled for any further rent and there is no arrears of rent outstanding against the defendants. The notice of the plaintiff has been replied by the defendants denying their liability to pay any further rent yet the civil suit has been filed since the entire rent have been paid to the plaintiff, she is not entitled for any further rent.

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8. I have heard learned counsel for the parties and perused the record of the trial Court.

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9. The execution of the agreement between the parties on 01.10.1992 is not disputed by the defendants. The agreement dated 01.10.1992 was filed by the defendants as (Ex-P/2) in which it has been clearly

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mentioned that the subject house was lease out in favour of the defendant No. 3 for monthly rent of Rs. 5000/-. Execution was also admitted by the (DW-1) T. Ekka and (DW/2) Sant Kumar. Though, they have stated that the entire part of the subject house was not handed over to the defendant No. 3 and only some part of the house was handed over for which the monthly rent of Rs. 1696/- was fixed, however, in view of their admission made in their evidence as well as the agreement, the learned trial Court has comes into conclusion that the subject house of the plaintiff was lease out to the defendant No. 3 for monthly rent of Rs. 5000/-. Although, the plaintiff has claimed that there was a condition that every three years, the rent should be enhanced to the extent of 10%, however, from perusal of the agreement (Ex-D/2), there is no such condition for enhancement of the rent to the extent of 10% and it is only mentioned that the leasee intimates in writing by a notice delivered by registered post to the leaser, his desire to renew this lease, the leaser shall grant to the leasee by way of removal of fresh lease for such further period as the leasee may desire on the terms and conditions in all aspects as are hearing contents or as may agreed upon between the parties. In absence of any condition specifically about enhancement of the rent in every three years or in any fixed period during the currency of the tenancy, it cannot be said that there was a condition for enhancement of the rent @ of 10 % in every three years, which the learned trial Court has rightly considered that the plaintiff cannot get benefit of enhancement of rent @ 10% in every three years. So far as, the arrears of rent for about 11 months is concerned, though, the defendants have denied in their written statement about their liabilities

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but they have not specifically denied that the plaintiff is not entitled for recovery of the arrears of rent. In their written statement, they have submitted that since, the plaintiff has not provided any accommodation on the tarries to the defendant No. 3, the excess payment of Rs. 55,000/- is liable to be adjusted towards the main amount of Rs. 35000/- which is an appears to be admission made by the defendants that an amount of Rs. 55000/- is outstanding against them towards the rent of the subject house. The room of the tarries is also one part of the tenancy agreement, however, when the defendant has paid the entire amount of rent @ Rs. 5000/- per month from 01.10.1992 till 22.08.1998, it cannot be said that the plaintiff had not provided any accommodation much less than the accommodation provided in the agreement (Ex-D/2). Had it been so, the defendants may not have paid the entire amount of @ Rs. 5000/- per month.

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10. Considering the entire evidence led by the parties, learned trial Court has passed the decree in favour of the plaintiff for recovery of Rs. 55,000/- towards outstanding amount of rent, in which this Court does not find any perversity or illegality in granting decree in favour of the plaintiff.

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11. The appeal filed by the appellant being devoid of merits liable to be and hereby dismissed.

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12. The parties shall bear their own cost.

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13. The appellate decree withdrawal accordingly.

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Sd/(Ravindra Kumar Agrawal) Judge

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sagrika

State of Chhattisgarh and Anr. v. Smt.Ihyaunnishakhan

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State of Chhattisgarh and Anr. v. Smt.Ihyaunnishakhan

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