Over 2 lakh Indian cases. Search powered by Google!

Case Details

SUNDAR LAL versus A.D.J.

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Sundar Lal v. A.D.J. - WRIT - A No. 44066 of 1992 [2006] RD-AH 17580 (11 October 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.20

Civil Misc. Writ Petition No.44066 of 1992

Sunder Lal and others  

Vs.

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

-2-

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

-3-

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

-4-

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

-5-

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.

11.10.06

Gc.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.