Decided on December 28,2012

Anil Saran Agarwal And Others Appellant
Ii Additional District Judge Nainital And Others Respondents


- (1.) By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the order dated 8- 11-1990 passed by the II Additional District Judge, Nainital (Annexure No. 7 to the writ petition), whereby the revisional Court has allowed the revision filed by the respondent nos. 2 to 5 herein and set aside the judgment and decree dated 22-5-1989 passed by the Judge, Small Cause Court/Civil Judge, Nainital (for short J.S.C.C.) in S.C.C.Suit No. 11 of 1986, Anil Saran Agrawal Vs. Smt. Sarla Devi and others.
(2.) Brief facts giving rise to the present writ petition, according to the petitioners are that the plaintiff-petitioners filed a suit bearing S.C.C. Suit No. 11 of 1986 against the defendantrespondent nos. 2 to 5 for recovery of arrears of rent and for eviction in the court of the J.S.C.C. alleging there that on 12-6- 1964, the father of the respondent nos. 2 to 5, namely, Om Prakash and respondent no. 6 Amolakh Ram, sons of late Fakir Chand took on rent the shop in question mentioned in the plaint, belonging to late Smt. Jagwati Devi and both of them executed a rent note in favour of the landlady Smt. Jagwati Devi, who was the sole owner of the shop in question. The landlady executed a will before her death in favour of her grandsons-petitioners herein thereby bequeathed her entire property in their favour including the shop in question and as such, the plaintiffs became the owner of the shop in question and also looked-after the said property. Both the defendants had full knowledge of this fact that the plaintiffs are the owners of the shop in question but they did not pay the rent of the tenanted shop to the plaintiffs and violated the terms of the rent deed. Lateron, Om Prakash, predecessor of defendant-respondents 2 to 5 died and after his death, the respondent no. 6 exposed himself to be not a tenant of late Jagwati Devi and denied the ownership of the plaintiffs in the shop in question; that Smt. Jagwati Devi gave a notice on 11-1-1977 through her advocate to Om Prakash and Amolak Ram alleging therein that rent against them was due since September 1976 and that they have disfigured the shop in dispute thereby the value of the said shop had diminished. In reply to the said notice, respondent no. 6 Amolak Ram sent a reply dated 10-2- 1977 and alleged that he has no concern with the shop in dispute and that he is not a tenant therein; that there is no question of arrears of rent, house tax etc. against him; that he had not disfigured the shop in question. He however alleged that in the shop in question Om Prakash is doing business and he has no concerned with the business of Om Prakash. Om Prakash died on 18-2-1977; thereafter, the defendant nos. 2 to 5 started alleging themselves to be the tenants of late Smt. Jagwati Devi with regard to the shop run as Om Prakash and sons and the respondent no. 3 Ashok Kumar alleged himself as Karta of Om Prakash and sons; Ultimately, the plaintiff-petitioners filed the suit in the court of J.S.C.C. and in paragraph no. 1 of the plaint description of the shop in question was given. In paragraph no. 4 it was alleged that the defendants without permission of the plaintiffs and even of deceased Smt. Jagwati Devi willfully caused and permitted to be caused substantial damages to the shop in question under their tenancy and also made structural alteration in the shop in question by removing the middle walls, beams and doors thereby making the entire four rooms into one hall and disfigured the same; that the defendants having been fallen in arrears of rent and having not paid the arrears of rent since September 1976 despite repeated demands and requests are liable for eviction. The plaintiffs alleged monthly rent @ Rs. 62-50 in addition to house tax, water tax etc. to the tune of Rs. 13-34 P. (total 75-84 P. per month); that the defendants with malafide intention started depositing the rent in the Court under Section 30 of the U.P. Act No. 13 of 1972 (for short the Act) in the name of Om Prakash and sons w.e.f. September 1976 and the deposit so made cannot be treated to be a valid deposit and cannot be adjusted towards payment of rent; that the plaintiffs sent notices to the defendants thrice, but instead of complying with the notice they have wrong and false reply hence the suit for recovery of arrears of rent, damages and for eviction was filed against them.
(3.) The defendant nos. 1 to 5 filed their written statement and resisted the suit. They asserted that the shop in question was taken on rent by Om Prakash alone, who had already died. Om Prakash and Amolak Ram had not signed in the rent deed and that Amolak Ram was not a tenant. It was also alleged that Om Prakash used to pay the rent to landlady Smt. Jagwati Devi; that Amolak Ram had withdrawn from his business in the shop in question; that Jagwati Devi admitted Om Prakash and sons to be her tenants and the tenancy was amended between them and Smt. Jagwati Devi issued rent receipts in favour of Om Prakash; When she was not available, the rent was sent by money order, which was refused to be accepted, Om Prakash deposited the rent under Section 30(1) of the Act in the court of Munsif Kashipur, which was registered as Misc. Case No. 29 of 1977; that Jagwati Devi contested the application and filed her objections; that the application was allowed and the rent was being deposited in the court in future; that the plaintiffs never intimated the defendants regarding change of ownership of the shop in question; that it was denied that defendant no.5 had denied himself to be tenant of Smt. Jagwati; that in reply to the notice, it was stated that rent from September to December 1976 was sent through Money Order to Smt. Jagwati Devi, which was received back undelivered, as Smt. Jagwati 4 wanted to enhance the rate of rent; that the defendants have not disfigured the shop in question; that the defendants incurred heavy expenses in getting the shop in question properly maintained. The utility of the shop in question has not diminished; that the defendants have not defaulted in payment of rent; that they have deposited the rent from September 1976 to December 1984 in the court; that rent from 1-1-85 to 1-1-1986 was sent by Money Order, which was refused; that the tenancy of the defendants have not been terminated. The notice under Section 106 of the Transfer of Property Act sent by the plaintiffs is illegal because rent of more than 4 months was not due against the defendants and that the suit is liable to be dismissed.;

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