advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, October 1, 2015

A building which can be used for residential as well as commercial purposes cannot be said to be excluded from the clutches of proviso to sub-section (4), if built, or acquired in vacant state within limits of the municipal area in which the house from which eviction is sought by the landlord. Needless to say in the present case building in question was let out for residential-cum-commercial purposes. It cannot be said that object of sub-section (4) of Section 20 is to protect those tenants who have built, or acquired in vacant state a house which can be used for residential as well as commercial purposes. If word “residential” mentioned in the proviso is taken to mean what has been interpreted by the High Court, the object of the proviso would get defeated. As such, in our opinion, the High Court has erred in law in reversing the judgment and decree passed by the Judge Small Cause Court. For the reasons as discussed above, we are unable to uphold the impugned order passed by the High Court. Therefore, the appeal is allowed and impugned order passed by the High Court in revision is set aside. The decree passed by the Judge Small Causes Court/Xth Additional District Judge, Meerut in SCC Suit No. 5 of 1983 is restored. The defendants are directed to vacate premises in question within a period of sixty days from today. No order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7988 OF 2015
               (Arising out of S.L.P. (Civil) No. 9202 of 2012)

Samar Pal Singh                                        … Appellant

                                   Versus

Chitranjan Singh                                       …Respondent





                               J U D G M E N T


Prafulla C. Pant, J.


         This  appeal  is  directed  against  judgment   and   order   dated
20.12.2011, passed by the High Court of Judicature  at  Allahabad  in  Civil
Revision No. 8 of 1990 whereby the revision filed by the defendant  No.1  is
allowed, and order of eviction against the tenants passed  by  Judge,  Small
Causes Court/Xth Additional District Judge, Meerut, is set aside.
2.    We have heard learned counsel for the parties and perused  the  papers
on record.

3.    Brief facts of the case are that  plaintiff  No.1/appellant  is  owner
and landlord of house bearing municipal no. 831 (old no. 446),  situated  in
Mowana, District Meerut. The house was let out to  Nawab  Singh  (father  of
the respondents) and a rent note (Annexure P-2) was executed on  15.02.1975.
The building under lease  consists  of  ground  floor  used  for  commercial
purposes  and the first floor for the residential purpose.  It  was  pleaded
by the plaintiffs that  the  defendants  stopped  payment  of  rent  of  the
building, after August, 1981.  Consequently,  a  notice  on  16.08.1982  was
served on the defendants, and when they failed to pay rent within one  month
of service of notice, a suit for eviction and recovery of  arrears  of  rent
was filed by  the  plaintiffs  before  Judge,  Small  Causes  Court/District
Judge, Meerut.

4.    Only defendant no.1 (respondent before  us)  contested  the  suit  and
filed written statement. It is admitted that the plaintiff/appellant is  the
landlord of the house in question. It is also  admitted  that  property  was
let out to Nawab Singh, father of answering defendant, on rent at  the  rate
of Rs.440/- per month. However, it is denied that there was any  default  in
payment of rent, on the part of the defendants. It is stated that no  notice
of demand of arrears of rent and termination of the tenancy  was  served  on
the defendants. In  the  additional  pleas,  the  answering  respondent  has
stated that the rate of rent was only Rs. 200/- per month which was paid  up
to December, 1981 to Kishan Pal Singh (father  of  plaintiff  no.1).  It  is
further pleaded that thereafter, the rent was not accepted by the  landlord.
It is pleaded that answering  defendant  tendered  amount  of  Rs.  20,000/-
before the trial court in May, 1984 which included  arrears  of  rent,  nine
percent interest and costs. As such, in view of the provision contained   in
sub-section (4) of Section 20 of Uttar Pradesh Urban  Buildings  (Regulation
of Letting, Rent and Eviction) Act, 1972 (for short  “U.P.  Act  No.  13  of
1972”), the defendants are protected from the decree of  eviction,  and  the
suit is liable to be dismissed.
5.    The trial court framed following issues on the basis of the  pleadings
of the parties:-
“1.   Whether defendants are in arrears of rent  from  01.09.1981  and  have
committed default?

2.    Whether rate  of  rent  is  Rs.440/-  per  month  as  alleged  by  the
plaintiff or is Rs.200/- per month as alleged by the defendant?

3.    Whether the plaintiff has served valid notice upon the defendants  u/s
106 Transfer of Property Act?

4.    Whether defendant is entitled to the benefits of the    provisions  of
Section 20 (4) of the U.P. Act 13 of 1972?

5.    To what relief, if any, is the plaintiff entitled?”


6.    The parties led their oral and documentary evidence before  the  trial
court. After hearing the parties, all the issues were decided in  favour  of
the plaintiffs, and the suit was decreed for  ejectment  of  the  defendants
from accommodation in question, and  also  for  arrears  of  rent  amounting
Rs.5,632/- and mesne  profits  at  the  rate  of  Rs.440/-  per  month  till
dispossession of the defendants.  Aggrieved  by  said  judgment  and  decree
dated 06.12.1989, passed in SCC Suit No. 5 of 1983 by  Judge,  Small  Causes
Court/ Xth Additional District  Judge,  Meerut,  Civil  Revision  was  filed
under Section 25 of Provincial  Small  Causes  Court  Act,  1887  which  was
allowed by the High Court vide impugned  order,  challenged  before  us,  in
this appeal.

7.    The High Court has not disturbed the findings of trial court on  issue
Nos. 1, 2 and 3.  The  High  Court  has  observed  in  its  order  that  the
defendants have not disputed the findings of the trial court on  issue  Nos.
1, 2 and 3, as such, the same have attained finality. The only  findings  on
issues No. 4 to 5 were challenged before the  High  Court  which  relate  to
provision contained in sub-section (4) of Section 20 of U.P. Act No.  13  of
1972.

8.    Clause (a) of sub-section (2) of Section 20 of  U.P.  Act  No.  13  of
1972 allows a landlord to seek eviction of  tenant  from  a  building  after
determination of his tenancy, on the 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 of notice  of  demand
upon him.  But sub section (4)  of  Section  20  protects  the  tenant  from
decree of eviction if he deposits entire arrears of rent with  nine  percent
interest and costs before date of first hearing in the suit.

9.    Sub-section (4) of Section 20 of the Act reads as under:-
“(4) In any suit for eviction on the ground mentioned in clause (a) of  sub-
section (2), if at the first hearing of the suit the tenant  unconditionally
pays or tenders to the landlord or deposits in Court the  entire  amount  of
rent and damages for use and occupation of the building due from  him  (such
damages for use and occupation being calculated at the same  rate  as  rent)
together with interest thereon at the rate of nine per cent  per  annum  and
the landlord’s costs  of  the  suit  in  respect  thereof,  after  deducting
therefrom any amount already deposited by the tenant under  sub-section  (1)
of Section 30, the Court may, in lieu of passing a decree  for  eviction  on
that ground, pass an order relieving the tenant against  his  liability  for
eviction on that ground:

Provided that nothing in this sub-section, shall  apply  in  relation  to  a
tenant who or any  member  of  whose  family  has  built  or  has  otherwise
acquired in a vacant state,  or  has  got  vacated  after  acquisition,  any
residential building in the same city, municipality, notified area  or  town
area.


Explanation:- For the purpose of this sub-section-

 the expression “first hearing”  means  the  first  date  for  any  step  or
proceeding mentioned in the summons served on the defendant;

the expression “cost of  the  suit”  includes  one-half  of  the  amount  of
counsel’s fee taxable for a contested suit.”


10.   From the record, it appears that initially suit was  decreed  ex-parte
against the defendants, and they got the same set  aside  vide  order  dated
25.05.1984. On the next day i.e. 26.05.1984, on behalf of the defendants,  a
tender was submitted for depositing Rs. 20,000/- in favour of  the  landlord
towards arrears of rent, 9% interest and costs  of  the  suit.  It  is  also
apparent from the record that after the tender was passed by the Court,  the
amount was deposited on 28.05.1984.  It  is  not  disputed  by  the  learned
counsel for the appellant that the amount deposited was sufficient to  cover
what was required to be deposited under the sub-section quoted above. As  to
the date of first hearing, also no argument is advanced before  us  as  such
there is no scope of interference with the conclusion of the High  Court  on
that point.

11.   What is vehemently argued before us on behalf of the landlord is  that
in view of  the  proviso  to  sub-section  (4)  of  Section  20,  since  the
defendants have acquired as many as four houses within municipal  limits  of
the city, as such, they are not entitled to protection  provided  under  the
sub-section. On the other hand, on behalf of the tenants,  it  is  contended
that the proviso to sub-section (4) deprives a tenant only if he  has  built
or otherwise acquired a residential house in a vacant state in the city  and
in this connection it is further submitted that properties acquired  by  the
tenants are commercial.

12.   From the language of sub-section quoted above, it is clear that  under
the proviso it is provided that nothing in the sub-section  could  apply  in
relation to a tenant who or any member of whose  family  has  built  or  has
otherwise acquired in a vacant state, or has got vacated after  acquisition,
any  residential  building  in  the  same  city.  Learned  counsel  for  the
tenant/respondent  did  not  dispute  that  the  respondent   has   acquired
property Nos. 621,  42,  43  and  72  in  the  municipal  limits  of  Mowana
(District Meerut). What  the  High  Court  has  held  is  that  the  proviso
deprives the tenant of the protection under sub-section (4) only if  he  has
acquired residential building.  On carefully going through  the  record,  we
are unable to agree  with  the  High  Court  that  none  of  the  properties
acquired by the tenant are residential. From the evidence on record,  it  is
clear that only property no. 621 and property no. 42 are shops.  The  record
reveals that property no. 43 consists of two rooms, one hall on  the  ground
floor, and one room with  Sehan  on  the  first  floor  and  property  no.72
consists of five rooms. There is no specific  finding  that  the  nature  of
these two buildings is exclusively commercial. In our  opinion,  High  Court
has erred in law by treating these  two  properties  as  commercial  without
there being evidence to that effect.  A  building  which  can  be  used  for
residential as well as commercial purposes cannot be  said  to  be  excluded
from the clutches of proviso to sub-section (4), if built,  or  acquired  in
vacant state within limits of the municipal area in  which  the  house  from
which eviction is sought by the landlord. Needless to  say  in  the  present
case  building  in  question  was  let  out  for  residential-cum-commercial
purposes.

13.   It cannot be said that  object of sub-section (4) of Section 20 is  to
protect those tenants who have built, or acquired in vacant  state  a  house
which can be used for residential as well as commercial  purposes.  If  word
“residential” mentioned in the proviso  is  taken  to  mean  what  has  been
interpreted by  the  High  Court,  the  object  of  the  proviso  would  get
defeated. As such, in our opinion, the  High  Court  has  erred  in  law  in
reversing the judgment and decree passed by the Judge Small Cause Court.

14.   For the reasons as discussed  above,  we  are  unable  to  uphold  the
impugned order passed by the High Court. Therefore, the  appeal  is  allowed
and impugned order passed by the High Court in revision is  set  aside.  The
decree passed by  the  Judge  Small  Causes  Court/Xth  Additional  District
Judge, Meerut in SCC Suit No. 5 of 1983  is  restored.  The  defendants  are
directed to vacate premises in question within a period of sixty  days  from
today. No order as to costs.



                                                           ……………….....…………J.
                                                               [Dipak Misra]



                                                             .……………….……………J.
                                          [Prafulla C. Pant]

New Delhi;
September 28, 2015.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.