Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Rent Can Be Enhanced For The Period Stay Order Has Been Enjoyed By The Tenant.
JUDGEMENT TITLE : Jhanjhi Ram Vs. Iv Adj And Others. On 01/12/2005 By Allahabad High Court
CASE NO : WRIT - A NO. 14263 OF 1983
CORAM : Hon'ble Vikram Nath,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved.

Writ Petition No. 14263 Of 1983

Jhanjhi Ram Petitioner
Vs.
IV Additional District Judge,
Kanpur & Others Respondents.

***************
Hon. Vikram Nath, J.
This Petition Has Been Filed For Quashing The Judgment And Order Dated 18.08.1983, 16.10.1982, 16.04.1982 And 07.05.1981 Passed By The Respondents No. 1 & 2, Whereby The Application Under Order XV Rule 5 Of The Code Of Civil Procedure 1908 (in Short Referred To As The CPC), Of The Landlord Respondent No. 3 And The Application Of The Tenant Petitioner Under Section 20 (4) Of The U.P. Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972 (hereinafter Referred To As The Act) Were Decided Against The Tenant And In Favour Of The Landlord, The Revision Against The Same Was Dismissed And Thereafter, The Suit For Arrears Of Rent And Ejectment Was Decreed On Merits And The Revision Under Section 25 Of The Provincial Small Cause Courts Act, 1887 (in Short Referred To As The 1887 Act) Against The Same Was Dismissed.
The Dispute Relates To Ground Floor Portion Of House No. 227, Block No. 13 Govind Nagar, Kanpur In Which The Petitioner Is Tenant On A Monthly Rent Of Rs. 42/- Per Month And The Respondent No. 3 Smt. Kamla Rani Is The Landlady. The Tenant Was In Arrears Of Rent From February 1976. The Landlady Gave A Notice Under Section 106 Of The Transfer Of Property Act 1882 In August 1978 And When The Tenant Did Not Respond Nor Paid The Rent, Small Causes Suit No. 1546 Of 1978 Was Filed For Recovery Of Arrears Of Rent And For Ejectment. In The Said Suit Which Was Presented On 16.11.1978 Notices Were Issued For 15.02.1979 And, Thereafter, Under Orders Of The Court Registered Notice Were Directed To Be Issued And Upon Steps Being Taken Summons Were Issued By Both Ways Fixing 15.05.1979. The Tenant Appeared Through Counsel On 15.05.1979 But Did Not Make Any Deposit Nor Did He Apply For Making Deposit And Only Request Made Was To Grant Time To File Written Statement. The Case Was Adjourned For 16.08.1979. In Between On 03.08.1979 The Tenant/ Petitioner Filed An Application That He Wants To Deposit The Entire Rent Due Along With Costs, Court Fees And Counsels Fees Unconditionally In Order To Seek Benefit Of Section 20(4) Of The Act. The Tenant Petitioner Further On 06.08.1979 Filed An Application Under Section 5 Of The Limitation Act, 1963 Supported By An Affidavit To Condone The Delay In Filing The Application For Making Deposit Under Section 20(4) Of The Act. The Ground Taken For The Delay Caused Was That Even Though He Had Instructed His Counsel On 15.05.1979 To Make The Deposit And In That Respect Application Was Also Prepared By The Counsel But The Clerk Of The Counsel Instead Of Filing Application For Making Deposit Filed An Application Seeking Time To File Written Statement. Under Orders Of The Trial Court Without Prejudice To Right Of The Parties The Tenant Deposited An Amount Of Rs. 1276.34, Details Of Which Are Given In Paragraph 7 Of The Writ Petition And Is Reproduced Below:-
Rent From 01.02.1976 To 28.02.1977 Rs. 546.00
Rent From 1.2.79 To 31.7.79 Rs. 252.00
Costs Rs. 349.50
Interest Rs. 43.84
Lawyer's Fee Rs. 85.00
Thereafter, Two Applications Were Filed; One Application Was Filed By The Landlady/plaintiff For A Direction To Strike Off The Defence Of The Defendant/tenant Under Order XV Rule 5 CPC., On The Ground That He Had Not Made The Deposit On The First Date Of Hearing; The Second Application Was Filed By The Tenant Defendant Claiming Benefit Of Section 20 (4) Of The Act As He Had Made The Entire Deposits As Claimed. Both These Applications Were Taken Up Together By The Trial Court And Vide Order Dated 07.05.1981 It Allowed The Application Of The Landlady And Struck Off The Defence Of The Tenant/defendant Under Order XV Rule 5 CPC, And At The Same Time Rejected The Application Of The Tenant Claiming Benefit Of Section 20(4) Of The Act, Holding That The Tenant Had Not Made The Deposit On The First Date Of Hearing As Required. Aggrieved By The Order Dated 07.05.1981 The Tenant Preferred A Revision Registered As SCC Revision No. 204 Of 1981. The Said Revision Was Dismissed By The 7th Additional District Judge, Kanpur Vide Order Dated 16.04.1982 Although On The Ground Of Limitation Being Barred By Time.
The Trial Court, Thereafter, Proceeded To Decree The Suit Vide Judgment Dated 16.10.1982 Against Which The Tenant Petitioner Preferred A Revision Under Section 25 Of The 1887 Act Which Was Registered As SCC Revision No. 365 Of 1982. The Said Revision Was Also Dismissed Vide Judgment Dated 18.08.1982. Aggrieved By The Said Judgment The Present Writ Petition Has Been Filed In Which All The Four Orders Have Been Challenged.
I Have Heard Sri A.K. Mehrotra, Learned Counsel For The Petitioner And Sri S.C. Dwivedi, Learned Counsel For The Respondent No. 3.
The Question Which Requires To Be Determined In This Writ Petition Is, As To Whether The Deposits Were Made By The Tenant- Petitioner On The First Date Of Hearing Or Subsequent Thereto. The Facts As Stated Above Are Not In Dispute. The Counsel For The Petitioner Has Contended That As The Trial Court On 15.05.1979 Had Extended The Time For Filing Written Statement Till 16.08.1979, There Was No Question Of Any Application Of Mind Or Even Intention To Apply The Mind By The Trial Court On 15.05.1979 And Therefore The Said Date Cannot Be Taken To Be The First Date Of Hearing. Further It Is Urged That As The Tenant-petitioner Made The Deposits On 03.08.1979 Much Before 16.08.1979 Which Was The Date Fixed For Filing Written Statement Therefore The Petitioner Would Be Entitled To The Benefit Envisaged Under Section 20 (4) Of The Act And There Could Be No Decree Of Ejectment, Against The Petitioner. In Support Of His Contention The Petitioner's Counsel Has Relied Upon The Following Decisions:-
(i) 2003 (1) ARC 517, Mukesh Kumar Suri Vs. Sri Rajendra Kumar.
(ii) 2002 (2) ARC 160 (SC), AIR 2002, S.C. 2520 Ashok Kumar & Others Vs. Rishi Ram & Others.
(iii) 1995 (1) ARC 563 (SC), Advaita Nand Vs. Judge Small Causes Court Meerut & Others.
(iv) AIR 1993 SC. 2525, Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor.

On The Other Hand Learned Counsel For The Respondent Has Urged That The Tenant Petitioner Having Himself Acknowledged That First Date Of Hearing Was 15.05.1979 And That He Had Already Instructed His Counsel To Make The Deposits, As Stated In His Application Dated 06.08.1979 Therefore Nothing Remained To Be Decided. According To The Learned Counsel For The Petitioner The Undisputed /admitted Date Of First Hearing Was 15.05.1979 And The Tenant Having Failed To Make The Deposits On Or Before The Said Date, Would Not Be Entitled To Any Benefit Of Section 20 (4) Of The Act And The Decree For Ejectment Has Been Rightly Passed. Reliance Has Been Placed Upon The Following Decisions:-
(i) 1998 (1) ARC Page 7, Ram Lal Yadav & Another Vs. Kulwant Rai Puri & Others.
(ii) 1998 (2) ARC Page 93, Virendra Pal Sharma Vs. Sitaram Agarwal, Advocate.
(iii) AIR 1993 SC 2525, Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor.
(iv) AIR2002 SC 2520, Ashok Kumar & Others Vs. Rishi Ram & Other

From The Contentions Raised By The Counsels For The Respective Parties It Is Clear That Both The Parties Rely On The Same Judgments Of The Apex Court Viz: Ashok Kumar Vs. Rishi Ram (supra) And Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor (supra). Since Ashok Kumar Vs. Rishi Ram (supra) Is Subsequent In Point Of Time And Also Takes Into Consideration The Judgment In The Case Of Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor (supra) It Would Be Appropriate To Examine The Facts Of The Said Case I.e. Ashok Kumar Vs. Rishi Ram (supra) And The Law Laid Down Therein. In The Case Of Ashok Kumar Vs. Rishi Ram (supra) After The Service Of Notice/summons The Suit Was Adjourned For 20.05.1980 For Final Disposal And On The Said Date The Tenant Applied For Time To File Written Statement, Whereupon The Suit Was Adjourned To 25.07.1980. Again On 25.07.1980 The Tenant Sought Further Time Which Was Allowed And Matter Was Adjourned To 10.10.1980. On The Said Date The Tenant Deposited The Entire Amount, However The Case Was Adjourned As The Presiding Officer Was On Judicial Training. The Tenant Took Defence To Section 20(4) Of The Act Which Was Opposed By The Plaintiff Land Lord On The Ground That Deposit Was Not Made On The First Date Of Hearing. The Trial Court, The Revisional Court And The High Court Held In Favour Of The Land Lord And The Suit Stood Decreed For Ejectment Also. However, The Apex Court Considering All Aspects Of The Matter Allowed The Appeal Of The Tenant And After Setting Aside All The Three Judgments Of The Courts Below Dismissed The Suit Holding That After The Court Gave Opportunity Of Filing Written Statement The Suit Having Been Posted For Final Hearing On 10.10.1980 And Therefore, It Would Be The Said Date Which Ought To Be Considered As The Date Fixed By The Court For Application Of Its Mind To The Facts Of The Case To Identify The Controversy Between The Parties, And Such Date Would Be The Date Of First Hearing. The Facts Of The Present Case Are Also Similar And The Judgment Of The Apex Court In The Case Of Ashok Kumar Vs. Rishi Ram Squarely Apply To The Benefit Of The Tenant- Petitioner. This Court In The Case Of Mukesh Kumar Suri Vs. Rajendra Kumar (supra) Has Also Followed The Law Laid Down In Ashok Kumar Vs. Rishi Ram (supra).
In The Present Case After Service Of Summons The Defendant Appeared On 15.05.1979 And Sought Time To File Written Statement, Which Was Allowed And The Trial Court Fixed 16.08.1979 For Final Hearing. Therefore, It Can Be Safely Presumed That The Trial Court Proposed To Apply Its Mind On The Said Date I.e. 16.08.1979 Which Would Be The Date Of First Hearing. However, Before The Said Date The Tenant Deposited The Entire Amount Due Under Section 20 (4) Of The Act On 03.08.1979 And, Therefore, His Claim For The Benefit Of The Said Provision Appears To Be Valid. In My Opinion The Deposit Under Section 20 (4) Of The Act Was Made Before The Date Of First Hearing And The Tenant Would Be Entitled To Protection From Ejectment. Now Coming To The Question With Regard To Striking Of Defence Of The Tenant Defendant Under Order XV Rule V CPC, In View Of The Finding That The Deposit Was Made Within The Time As Per Section 20 (4) Of The Act, The Order Striking Off Defence Also Cannot Be Sustained.
In View Of The Above Discussion The Writ Petition Is Liable To Succeed The Writ Petition Is Accordingly Allowed And The Impugned Judgment And Orders Are Set Aside And The Suit Is Dismissed.
However As This Court Is Exercising Powers Under Its Extra Ordinary And Equitable Jurisdiction It Would Be Unfair If The Land Lord Is Not Suitably Compensated On Account Of Long Pendency Of This Writ Petition Which Is Pending Since 1983. It Is By Now Well Settled In View Of The Decision Of This Court In The Case Of Khursheeda Vs. ADJ Reported In 2004 (2) ARC 64, H.M. Kichlu Vs. 8th ADJ Muzaffarnagar Reported In 2004 (2) ARC 652 And Of The Apex Court In The Case Of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd 2005 (1) SCC 705, That This Court Under Article 226 Of The Constitution Can Enhance The Rent And Suitably Remedy The Land Lord Also For The Period Of Pendency Of Writ Petition And Also For Future. I Am Inclined To Enhance The Rent To Be Paid By The Tenant To The Land Lord For The Period During Which He Has Enjoyed The Interim Order And Also For Future. The Accommodation In Dispute Comprise Of Ground Floor Portion Of The House No. 227, Govind Nagar, Kanpur City. Undisputedly Govind Nagar Is A Centrally Located Posh Locality Of Kanpur City. The Rent Of The Premises In Dispute At The Time Of Institution Of The Suit In The Year 1978 Was Rs. 42/= Per Month. Considering The Inflation In Prices And The Appreciation Of The Value Of The Property And The Return It Would Have Fetched It Would Be Appropriate That The Rent Of Rs. 42/- Per Month In 1983 At The Time Of Filing Of Petition Although Continuing From Much Before 1978, The Year Of Institution Of The Suit, Be Enhanced As Per The Following Table :-
S.No
Years
Rate Of Rent
Amount
1.
1983-1987 (5 Years)
Rs. 84/-
5040/-
2.
1988-1992 (5 Years)
Rs. 168/-
10,080/-
3.
1993-1997 (5 Years)
Rs. 336/-
20,160/-
4.
1998-2002 (5 Years)
Rs. 672/-
40,320/-
5.
2003-2005 (3 Years)
Rs. 1344/-
48,384/-

Total:

1,23,984/-

The Tenant Petitioner Would Be Liable To Pay The Aforesaid Amount, Though Without Interest Within A Period Of Four Months From The Date Of Delivery Of This Judgment And Will Continue To Pay A Sum Of Rs. 1500/- Per Month As Rent From January 2006 In Advance By The 10th Of Each Month. In Case Of Default He Would Be Liable To Eviction And The Protection Granted In This Order Would Stand Recalled And The Writ Petition Would Stand Dismissed. With Regard To Future Rent The Same Would Enhance By 10% Every Two Years. This Order Will Not Preclude Either Of The Parties From Pursuing Their Other Remedies Available To Them Under Law.

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