Sibghat Ullah Khan, J. - (1.) INSPITE of personal service landlord -respondent No. 2 Shri Kali Charan did not appear. This is tenants' writ petition. Landlord -respondent No. 2 filed SCC Suit No. 159 of 1986 against tenant -petitioners before JSCC, Moradabad. Relief of eviction and recovery of arrears of rent was sought through the plaint of the suit. Property in dispute is a small Khaprel room and sahen. Rate of rent is Rs. 6/ - per month. Previously Bansi Dhar husband of petitioner No. 1 and father of petitioner Nos. 2 to 6 was the tenant. It was alleged on behalf of the landlord that rent till November, 1971 was paid by Bansi Dhar and thereafter he died and his legal representatives did not pay any rent. It was admitted by the landlord that Bansi Dhar till his death has paid the entire rent. In respect of date of death of Bansi Dhar both the parties were at variance. According to the landlord Bansi Dhar died in December 1971 while according to the tenants he died in December, 1973. Tenants pleaded that even after the death of Bansi Dhar they paid the rent to the landlord but no receipt was issued. This theory of payment of rent by the legal representatives of Bansi Dhar has not been found to be correct by the Courts below. In respect of the said issue/question findings of the Courts below are affirmed they need not be reopened.
(2.) IN case version of the tenant that Bansi Dhar died in December, 1973 is taken to be correct then tenants would be liable to pay rent with effect from 1.1.1974. However, in case version of the landlord regarding death of Bansi Dhar in December, 1971 is taken to be correct then tenants would be liable to pay rent from 1.12.1971. Unfortunately, Trial Court did not decide this question. Trial Court only held that even if statement of the landlord that rent was due from 1.12.1971 was taken to be correct still tenants would be entitled to the benefit of section 20(4) of U.P. Act No. 13 of 1972 as on the first date of hearing tenants had deposited Rs. 1,500/ - which was more than the total amount required to be deposited under the said sub -section. The Trial Court while calculating the total amount under sections 20(4) of the Act did not include 9% per annum interest on unpaid rent. The Trial Court through judgment and decree dated 14.10.1988 dismissed the suit for eviction and permitted the landlord to withdraw the amount of Rs. 1,500/ - deposited by the tenant. Against the said judgment and decree landlord -respondent No. 2 Kalicharan filed revision being SCC Revision No. 87 of 1988. IIIrd ADJ, Moradabad through judgment and order dated 21.9.1990 allowed the revision and decreed the suit for eviction also hence this writ petition by tenants.
(3.) BEFORE the Revisional Court a chart showing the total amount of rent damages, cost and interest was filed by the respondent No. 2. According to the said chart total amount required to be deposited came to Rs. 1811.35 (the difference in between calculation of the Trial Court and calculation of respondent No. 2 occurred due to omission of the Trial Court to include the interest). The Revisional Court agreed with the contention of landlords' Counsel that Trial Court had categorically recorded a finding that rent for the period 1.2.1971 to 6.7.1986 had not been paid by the defendants. The Revisional Court also fully agreed with the chart of the total amount required to be deposited by the tenant, which was submitted by the learned Counsel for respondent No. 2 before Revisional Court. Ultimately, Revisional Court found that there was deficiency of Rs. 311.35 hence tenant was not entitled to the benefit of section 20(4) of the Act. Unfortunately, Revisional Court did not realise that Trial Court had not recorded any finding let alone categorical finding that rent was due from 1.12.1971. Trial Court had only stated that even if it was assumed that rent was due from 1.12.1971 still tenant was entitled to the benefit of section 20(4) of the Act. Revisional Court also did not record any finding regarding the date from which rent was due.;