High Court of Judicature at Allahabad
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Ram Shankar v. A.D.J. And Others - WRIT - A No. 34901 of 2006  RD-AH 11127 (7 July 2006)
Civil Misc. Writ Petition No. 34901 of 2006
Additional District Judge, Kanpur Nagar & Others...Respondents
Hon'ble Krishna Murari,J.
Heard learned counsel for the parties.
This is a tenant's petition arising out of JSCC Suit No. 850 of 1984 filed by respondent-landlord no. 3 against the petitioner.
The eviction was sought on the ground of default in payment of rent. The defence set up by the tenant-petitioner was that on refusal by the landlord to accept the rent, the same was deposited in the Court of Munsif City in Misc Case No. 273/70 of 1980 under Section 30(1) of U.P. Act No. 13 of 1972 (for short the ''Act') and accordingly he was not a defaulter. The trial Court held that deposit under Section 30 of Act, made by the tenant-petitioner, was not valid and accordingly the suit filed by the respondent-landlord was decreed vide judgment and order dated 18.2.1998. The tenant-petitioner went up in revision. During the pendecy of the same, an application was filed by him under Order XIII, Rule 10 C.P.C. for summoning the record of the proceedings under Section 30 of the Act. The revisional Court did not find it proper to summon the record of the case under Section 30 of the act and the revision filed by the petitioner was dismissed on 25.2.2000. Aggrieved, he approached this court by filing writ petition no. 24902 of 2000. This Court vide judgment dated 27.1.2006 allowed the writ petition and remanded the case back to the revisional court for fresh decision, wherein it was observed as follows:
"Accordingly, writ petition is allowed. Judgment and order passed by the revisional court dated 25.2.2000 is set aside and the revision is remanded for decision on the above point. In case before the revisional court landlord disputes the assertion of the tenant that he has withdrawn the total amount deposited by the tenant under Section 30 of the Act then the revisional Court shall summon the file of the case under Section 30 of the Act and verify the said fact. If the entire amount was withdrawn by the landlord then suit for eviction shall be dismissed otherwise, it shall be decreed. In case landlord has withdrawn only some of the amount deposited by the tenant then effect of the same shall be determined by the revisional court in the light of observation made above i.e. whether at the time of notice dated 20.1.1983 tenant was defaulter for four or more months after treating the withdrawn amount as validly paid."
After remand the revisional Court summoned the record of Misc. Case No. 273/70 of 1980. It was reported that the same has been weeded out. However, the record keeper was examined. On the basis of the available records produced by him it was held by the revisional court that various amounts deposited on various dates between 19.11.1981 to 17.2.1984 was not withdrawn and the said amount lapsed and was transferred to the account of AGUP, Allahabad. The revisional Court has also recorded a finding that this fact stands verified from Register Form No. 35 that the amount which was deposited between this period has not been withdrawn and stands transferred to the account of AGUP Allahabad.
On the basis of the aforesaid finding, the revisional court dismissed the suit in view of the observations made by this Court in writ petition no. 24902 of 2000 between the parties.
I have heard Sri Ashok Mehta learned counsel for the petitioner and Sri R.K. Mishra appearing for the contesting respondent.
It has been urged by the learned counsel for the petitioner that the finding recorded by the revisional court that landlord has not withdrawn the amount of rent deposited by the petitioner is a perverse finding in view of fact that the record of the said case was weeded out and there was no other evidence with regard to the withdrawal of amount.
Learned counsel for the contesting respondent has tried to justify the impugned order.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
It is no doubt correct that record of Misc. Case No. 273/70 of 1980 under Section 30 of the Act was weeded out but on the basis of available record produced by the record keeper, the revisional court has recorded a categorical finding that the amount said to have been deposited by the petitioner had lapsed and the same was transferred to the account of AGUP Allahabad and this fact stands verified from the Register Form No. 35 which was produced before him.
I see no illegality in the aforesaid finding recorded by the revisional Court. The total amount deposited by the petitioner between 19.11.1981 to 17.2.1984 was transferred to the account of AGUP Allahabad after it lapsed, this itself goes to show that the said amount was not withdrawn by the respondent-landlord. This Court had categorically mentioned in the judgment passed in the earlier writ petition between the parties that in case the entire amount was withdrawn by the respondent-landlord then the suit for eviction shall be dismissed otherwise, it shall be decreed. Once the revisional court found that no amount was withdrawn by the respondent-landlord it rightly decreed the suit against the tenant-petitioner and there is no illegality in the same.
The writ petition accordingly fails, and is dismissed.
A prayer was made by the learned counsel for the petitioner to grant some time to vacate the premises in dispute. Considering the facts and circumstances, the tenant-petitioner is allowed six months' time to vacate the premises in question subject to condition that:
i) The tenant-petitioner shall give an undertaking before the Prescribed Authority to hand over vacant and peaceful possession of the premises in dispute to the respondent-landlord on or before 15th January 2007.
ii) The tenant-petitioner shall continue to pay rent at the rate of Rs. 500/- per month as directed by this Court vide order dated 27.1.2006.
iii) In case of default in any of the condition mentioned above, the tenant-petitioner shall be liable to be evicted forthwith by the process of the Court.
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