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Amirul Hasan v. Mohd.Shaif - WRIT - A No. 24552 of 1989 [2006] RD-AH 6206 (22 March 2006)


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(Court No.51)

Civil Misc. Writ Petition No. 24552 of 1989

Amirul Hasan  Vs. Mohammad Shafi & Others


Heard learned counsel for the parties.  

This is tenant's writ petition. Original Landlord-respondent no.1 Mohd. Shafi since deceased and surived by legal representatives filed suit for eviction against tenant-petitioner in the form of SCC suit no.643 of 1984.  In the plaint of the suit it was pleaded that tenant had not paid the rent since 1.4.1982 inspite of notice of demand of rent and termination of tenancy dated 23.6.1984.  Admitted rate of rent is Rs.15/- per month.  It was also pleaded in the plaint that tenant had sublet the house to respondent no.2-Khalikur Rahman who is tenant's son in law.  Tenant pleaded that after receiving the notice he sent the rent through money order within one month which was refused hence he deposited the same under Section 30 of U.P. Act No.13 of 1972.  Landlord himself appeared as witness.  He gave only two lines statement English translation of which is quoted below:

"Defendant has kept Khalikur Rahman in the disputed tenanted portion.  In what capacity he has been permitted to reside I do not know" (Annexure-III to the writ petition)

Tenant did not cross-examine the said witness. Trial court/JSCC, Kanpur through  judgment and decree dated 23.9.1985 dismissed the suit for eviction.  Against the said judgment and decree landlord-respondent no.1 filed SCC revision no.146 of 1985.  VIth A.D.J., Kanpur Nagar through judgment and order dated 16.10.1989 allowed the revision, set aside the judgment and decree passed by the trial court and decreed the suit for eviction and recovery of arrears of rent hence this writ petition.

Trial court had held that even invalid deposit under Section 30 of the Act is to be taken into consideration.  I do not agree with the said finding.  The revisional court rightly set aside the said finding.

In para-7 of its judgment revisional court has held that in order to prove his plea that rent had been sent through money order after receipt of notice on 23.7.1984, money order receipt had already been filed by the tenant before the trial court.  Revisional court further observed that money order coupon containing the endorsement of refusal by the landlord had been filed in revision after seeking permision under Order 41 Rule 27 C.P.C. as additional evidence.  Revisional court did not dis-believe the version of the tenant that landlord had refused the money order.  Even otherwise it was fully proved on record by money order receipt and coupon containing refusal.  It has been held in a Full Bench authority of this Court reported in Indrasani Vs. Din Ilahi  1968 A.W.R. 167 followed in another full bench authority G.Singh vs. A.D.J. 2000 (1) A.R.C. 653 that in case rent sent through money order is refused by the landlord then tenant does not remain in arrears of rent even though rent remains in arrear.

In view of this, even if subsequent deposit of rent under section 30 of the Act is altogether ignored, the suit was liable to be dismissed on the ground of non-maintainability.  Under Section 20(2)(a) suit for eviction on the ground of default may be filed only if tenant is in arrears of rent for four or more months and has failed to pay the same inspite of notice of demand. Sending  the rent through money order by the tenant and refusal of the same by the landlord brought the tenant out of the defnition of defaulter.  The suit therefore could not be decreed on the ground of default.  Learned counsel for the landlord has argued that as held by the revisional court the money order which was refused was sent in May 1984 i.e. before notice (dtd 23.6.1984).  Firstly, there is nothing on record to substantiate this argument.  Secondly, even if it is assumed that rent was sent before notice and was refused by the landlord still the same result will follow i.e. tenant will not remain in arrears of rent even though rent will remain in arrears.

As far as sub-letting is concerned, the allegation is that the tenant-petitioner kept with him respondent no.2 Khalikur Rahman                     who is his son in law.  Learned counsel for the landlord has argued that by virtue of Section 12 (1) (b) if tenant has allowed the accommodation in dispute to be occupied by any person who is not a member of his family then it amounts to sub-letting.  Under Section 3(g) of the Act defnition of family is given and son-in-law is not included therein.  In this regard learned counsel has cited a Supreme Court authority reported in Harish Tandon Vs. A.D.M. A.I.R. 1995 S.C. 676.  According to the aforesaid authority, creating partnership with son-in-law amounts to vacancy.  However, if accommodation in dispute is residential in nature and tenant alongwith him allows any of his relations who may not be a family member under Section 3(g) of the Act like brother or son-in-law, no vacancy or sub-letting will take place.  It is only when tenant has completely withdrawn his possession and the tenanted house is exclusively occupied by brother or son-in-law or by any person who is not tenant's family member as provided under Section 3(g) of the Act that subletting or vacancy can be said to have taken place.  This point is squarely covered by the authority of the Supreme Court reported in G.Trivedi Vs. Sundar Devi A.I.R. 2002 S.C. 676.  

Accordingly  I find that the view of the revisional court on both the points is erroneous in law and is liable to be set aside.

Writ petition is therefore allowed.  Judgment and order passed by the revisional court is set aside  while judgment and decree passed by the trial court is restored.

I have held in Khursheeda Vs. A.D.J. 2004 (2) A.R.C. 64 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent.  Property in dispute is situate in Humayun Bagh, Chamanganj, Kanpur and consists of two rooms, veranda, kitchen, angan, latrine and bath room on the ground floor and tin shed on the first floor.  Kanpur is most expensive City of Uttar Pradesh.  Rent of Rs.15/- per month for such type of accommodation as is in dispute inthis writ petition is rather rediculous.  It is virtually as well actually no rent.  

Accordingly, it is directed that with effect from April 2006 onwards tenant-petitioner shall pay rent to the landlord-respondent at the rate of Rs.600/- per month inclusive of water tax etc.  No further amount shall be payable by the tenant.




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