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Smt. Nirmal Kanta v. Ist A.D.J. - WRIT - A No. 15208 of 1988 [2006] RD-AH 6188 (21 March 2006)


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(Court No.51)

Civil Misc. Writ Petition No. 15208 of 1988

Smt Nirmal Kanta Versus I Additional District Judge, Saharanpur and others

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

This is landlady's  writ petition. Original landlady filed SCC Suit No. 76 of 1980 against original tenant respondent No.3 Furqan Ahmad for eviction on the ground of default and for recovery of arrears of rent. Property in dispute is a shop. According to the landlady rate of rent was Rs. 120/- per month while according to the tenant rent was only Rs. 60/- per month. The tenant deposited the entire arrears of rent at the rate of Rs. 120/- per month (as asked for by the landlord) on the first date of hearing and claimed benefit of section 20(4) of U.P Act No. 13 of 1972. Even though defence of the tenant had been struck off still the trial court / JSCC, Saharanpur / III Additional Civil Judge, Saharanpur held that tenant was entitled to the benefit of section 20(4) of the Act. The trial court therefore through judgment and decree dated 13.3.1987 dismissed the suit for eviction and decreed the suit for recovery of arrears of rent at the rate of Rs. 120/- per month and permitted the landlady to withdraw the said amount. Against judgment and decree dated 13.3.1987, both the parties filed revisions being SCC Revision No. 154 and 166 of 1987. I A.D.J Saharanpur through judgment and order dated 5.5.1988, allowed both the revisions, set-aside the judgment and decree of the trial court dated 13.3.1987 and the matter was remanded back to the trial court " for retrial under the general provisions of the Transfer of Property Act". This writ petition has been filed by the landlady against the aforesaid order of the revisional court dated 5.5.1988. Tenant did not file any writ petition against the said judgment.

The revisional court held that when the defence is struck off, the suit is to be decided under general law i.e. Chapter of lease under Transfer of Property Act. The view of the revisional court is utterly erroneous in law. If defence has been struck off it does not mean that Rent Control Act i.e. U.P Act No. 13 of 1972 becomes non-applicable to the building in dispute or the suit filed for eviction against the tenant thereof. If otherwise the Act is applicable, striking off the defence or non-striking off the defence cannot have any bearing upon its applicability or non-applicability Transfer of Property Act applies even if Rent Control Act is applicable subject to the condition that in case of any conflict latter Act prevails upon the former Act.

The defence was rightly struck off. However still tenant was entitled to the protection of section 20(4) of the Act which was done by the trial court. There was absolutely no fault in the judgment and decree of the trial court. Judgment and order passed by the revisional court is clearly erroneous in law. Revisional court should have dismissed the revision.

Accordingly writ petition is disposed of with the direction that no further proceeding shall be taken up by the trial court in pursuance of remand order dated 5.5.1988 passed by I A.D.J Saharanpur. The said order is set-aside and both the revisions are dismissed.

I have held in Khursheeda Vs. A.D.J 2004(2) ARC 64 and H.M.Kichlu Versus A.D.J 2004(2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.

Property in dispute is a shop situate in Saharanpur. Rent of Rs. 120/- per month is highly inadequate.

Accordingly, it is directed that with effect from April 2006 onwards tenant respondent shall pay rent to the landlord petitioner at the rate of Rs. 650/- per month inclusive of water tax etc. No further amount shall be payable by the tenant.




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