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Ram Bahadur And Others v. Iii A.D.J. And Others - WRIT - A No. 8742 of 1982 [2005] RD-AH 4709 (24 October 2005)


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Civil Misc. Writ Petition No.8742 of 1982

Ram Bahadur and others  Vs. IIIrd A.D.J, Shahjahanpur and nine others


Property in dispute consists of two adjoining shops.  Western shop numbered as shop no.1 was owned by Munshi Lal eastern shop numbered, as shop no.2 was owned by Babu Ram.  Respondents nos. 2 to 8 are legal representatives of Munshi Lal while respondent nos. 9 and 10 are legal representatives of Babu Ram.  According to the landlords respondents western shop was let out to Ram Bahadur petitioner no.1 and eastern shop to Hazari Lal-petitioner no.2.  It has further been stated by the respondents that Ram Bahadur was a Government servant hence he asserted that his son i.e. Rajendra Singh - petitioner no.3 was the tenant of the western shop.  Rent of western shop is Rs.16/-per month and of eastern shop initially it was Rs.10/- per month however, later on it was enhanced to Rs.12.50.   Petitioner nos. 2 and 3  Hazari Lal and Rajendra Singh filed an injunction suit being O.S. no.36 of 1979 against landlords-respondents 2 to 10 seeking to restrain them from evicting the plaintiffs forcibly from the tenanted accommodation.  In the said suit petitioners 2 and 3 asserted that respondents 2 to 10 were joint owners of both the shops.  It appears that in the said suit some rent was also deposited by the plaintiffs of the said suit.  After filing of the said suit respondents 2 to 10 terminated the tenancies of petitioners and demanded the rent.  Thereafter respondents 2 to 10 filed two suits against the petitioners being SCC suit no.50 of 1979 which related to eastern shop no.2.  The number of the other suit was SCC suit no.51 of 1979 which related to the western shop bearing no.1.  In the notices as well as plaints all the petitioners were made noticees and defendants and all the respondents i.e. respondent nos. 2 to 10 were made plaintiffs in the suit and they all had given the notices jointly.  In the plaints it was categorically stated that even though heirs of Munshi Lal were owners-landlord of western shop bearing no.1 and heirs of Babu Ram were owners-landlord of eastern shop bearing no.2,  however in case court found all the plaintiffs to be joint owners then decree for possession and recovery of arrears of rent might be passed accordingly.  This was done in order to avoid the confusion which was created by the tenants in respect of ownership/landlordship and tenancy of the shops in dispute.  Trial court/ JSCC / Munsiff, Shahjahanpur dismissed both the suits on 23.2.1982.  Against the judgment and decree passed by the trial court respondents 2 to 10 filed two revisions being SCC revision no.27 of 1982 and SCC revision no.28 of 1982.  IIIrd A.D.J., Shahjahanpur by separate but similar orders dated 25.5.1982 allowed both the revisions and decreed the suits for eviction as well as recovery of arrears of rent/damages for use and occupation. Through this writ petition tenants have challenged the aforesaid judgments and orders of the revisional court.  

The trial court held that the notice of demand was not in accordance with the Act as no proper demand of rent was made in the said notice.  Revisional court differed with the said view and held that a clear demand was made in the notice.  Annexure-1 to the writ petition is the copy of the notice. In the notice it was clearly stated that in respect of eastern shop rent was due since 1.7.1978 and in respect of western shop was due with effect from 1.3.1976 and the rent should be paid within a month from receipt of the notice.  It is not understandable as to how the trial court held that the notice did not confirm to a valid notice of demand.  In the notices as well as in the plaints it was stated that whichever noticeee or defendant considered himself to be a tenant of whichever shop should pay the rent and vacate the shop.  This was done in view of the fact that in the earlier injunction suit petitioners had created confusion regarding their tenancies.  There was variance in between the stand of the landlords and of the tenants regarding tenancy i.e. which of the petitioners was tenant of which of the shop. In order to avoid the controversy joint notice was given.  In the facts and circumstances of the case the notice was perfectly valid.

As far as deposit of rent by the tenants in their injunction suit O.S. No.36 of 1979 is concerned, the revisional court rightly held that such deposit could not be taken to be payment to landlord as landlord was not entitled to withdraw the said amount.  As far as benefit of Section 20(4) of U.P. Act no.13 of 1972 is concerned, the trial court in just one sentence mentioned that on the first date of hearing entire amount had been deposited by the tenants. The revisional court rightly reversed the said findings.  The revisional court held that the summons for 30.8.1979 was served upon Ram Bahadur on 19.8.1979.  He sought time to file written statement on 30.8.1979, which was granted.  Thereafter Ram Bahadur filed written statement on 6.2.1980.  However, the first deposit was made by him on 7.5.1980.  He claimed that he presented the tender on 1.3.1980.  The revisional court held that 30.8.79 was the date of first hearing hence deposit was made late.  With this finding I do not agree.  In my opinion the first date of hearing was 6.2.1980 when written statement was filed as on that date court was in a position to apply its mind.  I have discussed this matter in detail in the authority reported in K.K.Gupta Vs. A.D.J. 2004(2) A.R.C.659, and  after considering five authorities of the Supreme Court held that no date prior to the date on which written statement is filed with the permission of the court can be taken to be date of first hearing.  However it will not make any difference for the reason that even on 6.2.1980 no deposit was made.  Even the deposit made on 7.5.1980 was not complete.  Rent had not been paid since 1.3.1976.  On 7.5.1980 rent was deposited since 1.3.1977.  The balance rent from 1.3.1976 to 1.3.1977 was deposited on 31.7.1980.  In view of this deposit was not at all complete on the first date of hearing.  Similarly revisional court found that tenant Hazari Lal petitioner no.2 was served with the summons on 19.8.1979 for the date 30.8.1979.  On 30.8.1979 he sought time to file written statement. Written statement was filed on 12.11.1979 and first deposit was made by him on 2.8.1980.  Revisional court held that first date of hearing was 30.8.1979 hence deposit was much beyond the date of first hearing.  Here also I find that the date of first hearing shall be taken to be 12.11.1979 when Hazari Lal filed written statement.  However the first deposit was made by him after about eight months from the date of filing of written statement hence it was clearly much beyond the first date of hearing.  The deposit made by Hazari Lal was also short, as he had deposited the rent at the rate of Rs.10 per month while it was found to be Rs.12.50.  The remaining amount was deposited by Hazari Lal on 13.8.1981 i.e. more than one year from the date of first deposit.  The revisional court at that juncture also rightly criticized the trial court for granting the benefit of Section 20(4) of the Act to the tenant by writing just one sentence to the effect that as entire rent had unconditionally been deposit hence tenant was entitled to the benefit of said sub-section.  However, I do not agree with the view of the revisional court that the deposit was conditional.  This finding was recorded by the revisional on the basis that the tenant had asserted that they had paid some rent to the landlord, which was not found to be correct.   In my opinion such assertion does not render the deposit conditional.  However as deposit was made much beyond the date of first hearing hence tenant was not entitled to the benefit of Section 20(4) of the Act.

In respect of joint notice revisional court held that the admitted position was that heirs of Munshi Lal were owners landlord of western shop bearing no.1 and heirs of Babu Ram, were owners landlord of eastern shop bearing no.2 and further Ram Bahadur was tenant of western shop and Hazari Lal tenant of eastern shop.  The revisional court held that joint notice was valid.  In my opinion this finding is perfectly correct.  In view of confusion created by the petitioners in their suit no.36 of 1979 joint notice was given. Even otherwise,  if there was any chance of confusion and likelihood of tenant's objection regarding ownership and tenancy joint notice by landlords of both the shops given jointly to the tenants of both the shops was perfectly valid.  In such situation neither the notice nor the suits can be held to be bad for joinder of unnecessary parties or for containing unnecessary material.  Similarly suits cannot be held to be bad for mis joinder of causes of actions.  

Similarly notice cannot be held to be bad for uncertainty.

Ram Bahadur in his written statement took the plea that the notice was not served upon him.  However, he did not pursue this point.  Neither any issue was framed in that regard by the trial court nor any request was made on behalf of Ram Bhadur for the same.  Before revisional court also this point was not argued.  In any case notice was jointly addressed to Ram Bahadur, his son Rajendra Singh and Hazari Lal.  Notice was served upon Rajendra Singh.  There is no dispute on this point.  A notice addressed to tenant Ram Bahadur and served upon his son is a validly served notice by virtue of Section 106(4) of T.P. Act which says that the notice be tendered or delivered to such party or be sent by-post to the party which may be served either upon him or one of his family members or servants at his residence.

Accordingly, I do not find any error in both the judgments of the revisional court.

The writ petition is dismissed with cost of Rs.20,000/-.  Out of this cost Rs.10,000/- shall be paid by Ram Bahadur petitioner no.1 to respondents 2 to 8 heirs of Munshi Lal.  Rest of the cost of Rs.10,000/- shall be paid by legal representative of Hazair Lal petitioner no.2 who has since died and survived by his son Ram Murtee.  This cost shall be paid to respondents 9 and 10 heirs of Babu Ram.

The Supreme Court in Atma Ram Properties Vs. Federal Motors 2005 (1) SCC  705 has held that since the date of eviction order passed by the first court tenant may be made liable to pay damages for use and occupation at a higher rate than the agreed rent.  Rent of the shops is highly inadequate being Rs.16/- in one case and Rs.12.50 in the other case.  Eviction order was passed by IIIrd A.D.J. on 25.5.1982.  Since then tenants are liable to pay reasonable damages for use and occupation.  In the year 1982 no shop in a city like Shahjahanpur could be available on rent for less than Rs.400 or Rs.500/- per month.  Accordingly it is directred that with effect from 25.5.1982 petitioner nos. 1 and 2 shall be liable to pay damages for use and occupation at the rate of Rs.200 per month for each of the shops i.e. Ram Bahadur petitioner no.1 shall pay Rs.200/- per month as damages and similarly Ram Murtee substituted at the place of petitioner no.2 Hazari Lal shall also pay Rs.200/- per month damages with effect from 25.5.1982.  Tenants petitioners are granted time till 31.12.1005 to vacate.  However if they do not vacate by 31.12.2005 then each of the two petitioners i.e. petitioner no.1 and legal representative of petitioner no.2 shall be liable to pay damages for use and occupation at the rate of Rs.1,000/- per month from January, 2006 till the date of actual vacation.




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