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Sundar Lal v. A.D.J. - WRIT - A No. 44066 of 1992  RD-AH 17580 (11 October 2006)
Civil Misc. Writ Petition No.44066 of 1992
Sunder Lal and others
IV Addl.District Judge and another
Hon. Sanjay Misra, J.
Heard Sri Arvind Srivastava, learned counsel for the petitioners and Sri B.N.Agarwal, learned counsel appearing on behalf of the respondents.
This is a tenant's writ petition whereby he seeks to challenge the judgment and order dated 21.11.1992 passed in revision no.50 of 1986 by the court of IV Additional District Judge, Jhansi.
The respondent landlord had filed a suit for eviction and arrears of rent as also for water tax against the petitioners. The trial court upon considering the evidence of the parties had decreed the suit with respect to arrears of rent only and dismissed the suit for ejectment of the petitioners. Upon the revision filed by the landlord the revisional court had allowed the revision and decreed the suit for eviction as well as for water tax.
Learned counsel for the petitioners has contended that the trial court had recorded a specific finding of fact that the petitioners had tendered the rent from time to time by sending money order and therefore it could not be held that the petitioner was defaulter in payment of rent although the landlord refused to accept the said money orders. Learned counsel for the petitioners has contended that the petitioner had deposited the entire amount due on the first date of hearing i.e. 26.8.83 and as such he was entitled to the benefit of section 20(4) of U.P. Act No.XIII of 1972 and the trial court has
recorded a finding that the petitioner had deposited the entire amount due on the first date of hearing as such the finding to the contrary by the revisional court is illegal. It has also been contended that the trial court found that in so far as water tax is concerned there was no term or condition between the petitioner and the landlord for payment of the same and therefore the trial court has recorded a finding that the said amount was not payable by the petitioner. It has been contended that revisional court has illegally reassessed the evidence and found that the petitioner had not deposited the entire amount due on the first date of hearing and consequently denied the benefit of section 20(4) of Act No.XIII of 1972. The contention of the learned counsel for the petitioner is that the revisional court could not have ordered the eviction of the petitioner in as much as if the revisional court, in exercise of its jurisdiction u/s 25 of the Provincial Small Cause Courts Act, found that the finding of the trial court was perverse or not in accordance with law it should have set aside the same and remanded the matter to the trial court for deciding the same afresh. It has been further argued that the finding recorded by the revisional court to the effect that sending of money orders by the petitioner is not an indication that the petitioner was paying the rent regularly is illegal in as much as the trial court had specifically recorded a finding that the said money orders sent before and after the notices were not received by the landlord. Thirdly it has been stated that revisional court had found that the petitioner was liable to pay the water tax u/s 7 of U.P. Act No.XIII of 1972. He contends that since there was no agreement between the parties with respect to payment of water tax therefore the aforesaid finding is liable to be set aside.
In reply learned counsel for the respondents has contended that the finding of the trial court with respect to tendering of rent from time to time by money orders is quite vague in as much as a perusal
of the money order forms and report of the post man it is quite clear that the said report has been obtained by the petitioner since the postman has himself recorded the said fact. It has been contended that the finding of the trial court with respect to deposit of the amount due on the first date of hearing is also vague and short of any details and as such the said finding was perverse and not in accordance with law. On the third issue learned counsel for the respondents has contended that section 7 of the Act provides that the tenant is liable to pay the water tax subject to any contract in writing to the contrary. In the present case, according to learned counsel for the respondents, there was no contract to the contrary between the parties hence by virtue of section 7 the tenant was required to pay the water tax. It is therefore contended that the aforesaid three findings recorded by the trial court were perverse and not in accordance with law and were rightly set aside by the revisional court.
Having heard learned counsel for the parties this court finds that finding of the trial court with respect to tendering of rent by money orders from time to time has been set aside by the revisional court and the revisional court has recorded that apart from the averment and the evidence that money orders were sent the petitioner has not made any other effort to deposit the rent in court or in any other manner. The revisional court was of the view that mere sending the money orders is not sufficient evidence to indicate that the petitioner had deposited the rent or made bonafide effort to pay the rent. The report of the postman was made at the instance of the petitioner. With respect to deposit of rent on the first date of hearing it is seen that the trial court has recorded that the petitioner has deposited the entire rent on 26.8.1983 i.e. first date of hearing and therefore he was entitled to the benefit of section 20(4) of the Act. No details of amount of deposit were considered by the trial court. The
revisional court while setting aside the finding of the trial court had found that the petitioner admittedly deposited Rs.5744.60 on 27.8.83 as has been stated in paragraph 14 of the written statement. The revisional court found that the aforesaid statement in paragraph 14 related to the rent and interest only. However, other requirements as provided in the Act with respect to deposit of amount due have not been followed and the trial court has not mentioned the amount which was due and the amount which was deposited hence revisional court found that the petitioner had not deposited the entire amount due being Rs.6960/- on the first date of hearing. It found that an amount of Rs.1215.40 was not deposited as required under law hence the petitioner was a defaulter. Having recorded the said finding the revisional court was of the view that the benefit of section 20(4) can not be extended to the petitioner. Since the amount required to be deposited on the first date of hearing is determined from the pleadings of the landlord brought on record therefore it can not be said that the revisional court has proceeded to reassess the evidence while setting aside the finding of fact recorded by the trial court. On the third issue with respect to liability of the petitioner to pay the water tax the trial court found that there is no evidence to indicate that there was any condition between the parties that the petitioner shall have to pay the water tax also. Consequently it has recorded that the petitioner was not liable to pay the water tax. The revisional court had found that liability to pay the water tax is on the tenant under section 7 of the Act unless there is some agreement to the contrary between the parties. Admittedly in the present case there was no such condition to the contrary between the parties for non-payment of water tax by the tenant. In the case of Smt. Shanti Devi Vs. Smt. Bhagwati Devi reported in 1983(2) ARC 74 this court has
held that water tax has to be paid as part of rent as provided in section 7 of the Act.
In view of aforesaid, the writ petition lacks merit and it is accordingly dismissed. No order is passed as to costs.
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