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SH. VIRENDRA KUMAR AGARWAL & OTHERS versus XVITH A.D.J., KANPUR NAGAR & OTHERS

High Court of Judicature at Allahabad

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Sh. Virendra Kumar Agarwal & Others v. Xvith A.D.J., Kanpur Nagar & Others - WRIT - A No. 2558 of 2001 [2006] RD-AH 18124 (26 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

Hon'ble Rakesh Tiwari, J

Heard counsels for the parties and perused the record.

Briefly stated, the facts of the case are that the petitioners are the landlords of the premises no. 43/165 Chauk Dhobi Marg, Kanpur Nagar with their brother Sri Rajendra Kumar Agarwal.  Respondent no. 3- Sri Pramod Kumar Maheshwari, the tenant of a shop of 9' x 13' in the aforesaid premises on a monthly rent of Rs.60/- together with Rs.8.40  as water tax and Rs.2.40 as sever tax per month. He deposited a sum of Rs.7000/- on 9.5.1994 after first date of hearing and  filed written statement on 30.1.1993.

  It is alleged by the petitioners that the respondent no. 3 paid a sum of Rs.7000/- only on 9.5.1994 towards the rent although he was occupying the shop since 1.1.1988 and, therefore, notice dated 24.5.1990 was sent for the recovery of rent and termination of tenancy.  

The aforesaid notice was replied by the respondent no. 3 through his counsel on 30.5.1990 accepting the petitioner as landlord.  Relevant paragraph 2 of the reply dated 30.5.1990 of respondent no. 3 is as under :-

" ;g fd esjk vkns'kd vkidks fdjk;k ges'kk nsus dks rS;kj jgk gS vkSj vkt Hkh rS;kj gS c'krsZ vki fdjk;k ysdj mldk j'khn nsus dks rS;kj gksa A esjk eqofDdy dbZ ckj vkidks vjk;k nsus x;k ijarq vki yksxksa usa fdjk;k ysus ls bUdkj dj fn;k] bl rjhds ls vki yksx yxkrkj xyr c;kuh dj jgs gSa A

;g fd esjs eqofDdy usa vkidks euhvkMZj Onkjk fdjk;k eqcfyx 1801@& #Ik;k 21-12-87 rd Hkstk tks vkius fnukad 29-1-88 dks euhvkMZj Onkjk izkIr fd;k ftldh j'khn dh QksVksdkih bl uksfVl ds lkFk Hksth tk jgh gSA"

Thus, the petitioner accepted the money order dated 29.1.1988 for Rs.1801/- towards rent due against the tenant till 31.12.1987.

Second notice dated 18.7.1990 was served on the tenant-respondent no. 3 by the petitioner demanding actual arrears of rent since 1.1.1987.  It was claimed that Rs.2130/- towards rent and taxes was due from 1.1.1988 to 30.6.1990.  The petitioners claimed that as their family members were unemployed, they needed the shop, in dispute, for the purpose of their own business. The respondent no. 3 was asked to vacate the disputed shop within 30 days of notice, aforesaid.

On non-compliance of aforesaid notice, the petitioners filed suit no. 398 of 1990 before the Judge, Small Causes Court, Kanpur Nagar.  Even after filing of the suit, compliance of Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act') was not made and the requisite amount was not deposited on the first date of hearing, thereby, the respondent-tenant  failed to comply with the provisions of Section 24 of the Act.

During the pendency of the suit, Smt. Annapurna Devi, mother of the petitioners died and they were substituted as legal heirs and representatives of Smt. Annapurna Devi.

Tenant-respondent no. 3 filed additional written statement denying the title of the petitioners as landlords. However, after the death of Smt. Annapurna Devi, after lapse of three years from the date of institution of suit, they accepted the petitioners as landlords.

The suit was decreed in favour of the petitioner vide judgment and order dated 30.11.1999 passed by Ist Addl. Judge, Small Causes Court, Kanpur Nagar- respondent no. 2.

Aggrieved by the judgment and order dated 30.11.1999, the respondent no. 3 preferred S.C.C Revision No. 259 of 1999 under Section 5 of the Provincial Small Cause Court Act, which was disposed of on the basis of another proceeding wherein a permanent prohibitory injunction was granted restraining the landlords fro converting the motor garage into a shop. In that proceeding, being suit no. 648 of 1980 and appeal no. 610 of 1998, the tenant- respondent no. 3 had accepted Sri Rajendra Kumar Agarwal as landlord and claimed that Sri Virendra Kumar Agarwal was receiving rent on behalf of Sri Rajendra Kumar Agarwal.  The appellate Court accordingly held that the tenant had not raised any construction or structural alteration as such, was not liable to be evicted. The petitioners claim that they could not challenge the appellate order dated 24.11.1982 owing to some personal difficulties.

It is alleged by the petitioners that after lapse of six years, when the tenant did not pay rent, the petitioners served notice through counsel on the tenant and filed a suit, which was decreed on the basis of earlier suit.  However, in revision, the finding of fact recorded by the trial Court was reversed by the revisional Court by the impugned order, hence this petition.

Dr. Ms. Madhu Tandon counsel for the petitioners states that the owner of the disputed shop (area 9 ft x 13 ft) was Smt. Surja Devi. On her death Sri R.K. Agarwal, brother of petitioner no. 1 along with other sons and their family members became landlords of House no. 43/165 Chauk Dhobi Marg, Kanpur Nagar, in which the shop in dispute is situated.

Sri D.S.P.Singh, counsel for the respondents states that the house, in dispute has been constructed by Sri R.K.Agarwal and does not belong to Smt. Surja Devi as such the rent is payable only to Sri R.K. Agarwal and not to Smt. Surja Devi or her heirs.

  Dr. Ms. Madhu Tandon, counsel for the petitioner states that Sri Virendra Kumar Agarwal, petitioner is landlord of premises no. 43/165 with his brothers Sri Rajendra Kumar Agarwal, Shri Sudhir Kumar Agarwal, all sons of late Sri Laxmi Kumar, Smt. Kusumlata wife of Sri Rajendra Kumar Agarwal, Smt. Kanchan Lata Agarwal, wife of Sri Virendra Kumar Agarwal, residents of 43/165 Chowk Sarafa Dhobi Mohal, Kanpur Nagar. Rent has not been deposited by the respondent-tenant for about last 17 years and the amount deposited by the tenant is not in compliance with the provisions of the as he has neither deposited the interest nor damages.  After filing of the writ petition, Sri D.S.P.Singh, counsel for the respondent-tenant sought time stating that the tenant has been continuously depositing the rent; the tenant deposited a sum of Rs.7000/- only on 9.5.94 after the first date of hearing; that the tenant filed written statement on 30.1.1993; that the rent due against the tenant since 1.1.1998 till date whereas he has paid only a sum of Rs.7000/- during this period; that the tenant is liable to be evicted from the disputed shop as he has failed to deposit arrears of rent and that the petitioners are entitled to damages, cost of the suit and arrears of rent.

In reply to the aforesaid averments, it has been stated that after the death of mother of Sri Vikash Maheshwari, his father is continuously ill since 2003 as such, Sri Vikash Maheshwari was not aware of the legal proceedings and his father was busy in treatment of his mother who was suffering from cancer.  It was alleged that the landlord never demanded the rent, as such, rent could not be deposited.  It was only when counsel for the tenant made a query about deposit of rent on 7.9.2006 on telephone, the tenant send money order of Rs.8000/- on 7.9.2006. This shows that the respondent-tenant has neither deposited the rent continuously nor had complied with the provisions of the Act. Hence, the tenant is not entitled to any relief in writ jurisdiction.

Moreover, on a query made by the Court, Sri D.S.P.Singh, counsel for the respondents informed the Court that Sri R.K.Agarwal has never disputed the fact before the Courts below that he is not the only landlord.  

The dispute being raised by the tenants that Sri R.K.Agarwal is the only landlord appears to be pressed by the tenants only for the purpose of remaining in possession of the disputed accommodation somehow or the other even though they have defaulted in payment of rent, as stated above.  In case there is any dispute between the co-owners it is for them to settle their dispute through family settlment or through Court but it is not open for the petititioners to take advantage on the basis of their pleadings that only Sri R.K. Agarwal is the landlord when admittedly he has not come forward to claim himself to be the sole landlord.

For the reasons stated above, the writ petition is allowed.  The respondent-tenant will deposit the entire arrears of rent together with intrest of 10 per cent per annum before the respondent no. 2 within a month from today. It is directed that the respondent-tenant will handover peaceful possession of the accommodation, in dispute the the petitioners-landlords within three months from today.  In case of non-compliance of the aforesaid directions, the tenant will be liable to be evicted by coercive process with the aid of local Police and the arrears of rent shall be recoverable as arrears of land revenue.

With the above directions, the writ petition is allowed.  No order as to costs.

Dated 26.10.2006

kkb


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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

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