- (1.) POONAM Srivastava, J. Heard Sri Bhagwati Prasad Singh, learned Counsel for the revisionist, and Sri U. N. Sharma, Senior Advocate, assisted by Sri Sachindra Mohan Advocate for the contesting plaintiff-respondent.
(2.) COUNTER and rejoinder affidavits have been exchanged which are on record. The defendant-revisionist is a tenant of the upper portion of the House No. 11, C. Y. Chintamani Road, Allahabad (hereinafter referred as disputed premises) which was let out by the plaintiff-respondent. According to the revisionist, the tenant instituted a suit No. 1127 of 1996 against the plaintiff- respondent on 20-11-1996 claiming a decree for injunction restraining the landlord from ejecting the revisionist. It is submitted that the said suit is still pending. Another case No. 4 of 1997 was preferred by the tenant to restore the water supply or alternatively for permission to take a fresh connection under Section 27 of Act No. 13 of 1972. The plaintiff served a notice on the tenant-revisionist under Section 106 of the Transfer of Property Act claiming arrears of rent w. e. f. 1-5-1994 at the rate of Rs. 2,500/- per month and terminated the tenancy vide notice dated 5-12-1996. The tenant sent a reply denying default of payment of rent. It was stated in the reply to the notice that the rent was paid up till November, 1996. The rate of rent was denied and also that the notice terminating the tenancy by the landlord was on mala fide ground on account of institution of the injunction suit. An eviction suit was instituted on 16-1- 1997 which was numbered as Suit No. 2 of 1997. Written statement was filed by the tenant denying the plaint allegation, and also claiming that the rate of rent was Rs. 1,500/- per month and that there was no default. Since the money order was refused by the landlord as such the rent was deposited under Section 30 of the Act No. 13 of 1972 and is regularly deposited. A counter claim was also set up by the tenant claiming damages for new water connection due to the curtailment of the amenities by the landlord. The suit was decreed vide judgment and order dated 30-4-2002 for arrears of rent and damages w. e. f. 1-5-1994 at the rate of Rs. 2,500/- per month. The said judgment was passed by the Additional District and Sessions Judge, Court No. 10, Allahabad. Sri Bhagwati Prasad Singh has raised a number of arguments. He has emphatically disputed the rate of rent to be Rs. 2,500/- per month. According to the Counsel for the revisionist, the rate of rent was Rs. 1,500/- per month and also the period since when the rent was due, was challenged. It is also argued that the building was covered under the Act No. 13 of 1972 and alternatively in case the Rent Control Act is not applicable, benefit of Section 114 of the Transfer of Property Act, 1882 has been claimed since the entire rent and decreetal amount has been deposited and he continues to deposit the same.
(3.) THE Court below framed a number of issues on the question of rate of rent, whether it is Rs. 2,500/- or Rs. 1,500/- per month and also whether any rent was due or not ? It is submitted that the contract of tenancy between the landlord and tenant was on the intervention of Late Hari Mohan Srivastava, retired District Judge, who was father-in-law of the tenant. Since he is no more alive, the question of rate of rent was to be established by the landlord himself. He examined himself as PW-1 and specifically stated that the rate of rent was Rs. 2,500/-, He examined Satya Prakash as PW-2 and Jai Prakash as PW-3 who supported the claim of the landlord. THE Court below while holding that the rate of rent of Rs. 2,500/- came to this conclusion that there are seven rooms on the first floor and one garage on the ground floor in his tenancy, which has not been disputed by the defendant-tenant. THE dispute premises is situated in Darbhanga Colony which is a posh locality of Allahabad. In the year when the tenancy was entered into, the rate of rent for accommodation of seven room and one garage cannot be said to be excessive by any stretch of imagination. THE landlord admitted in his statement that though at the relevant time the going rate of rent was Rs. 4,000/- per month but since Late Hari Mohan Srivastava, retired District Judge was involved in the transaction, therefore, the rent was fixed at a lower rate. THE Court below recorded a specific finding to the effect that rate of rent was Rs. 2,500/- per month. This finding has been assailed by Sri B. P. Singh. He has emphatically stated that prior to the revisionist tenant came in occupation of the disputed accommodation, NTPC was the previous tenant who used to pay the rent at the rate of Rs. 1,800/- per month plus Rs. 200/- towards water charges, meaning thereby Rs. 2,000/- per month. On this basis it is argued that since it is an admission of the landlord that he had agreed to accept lower rent, the rate of rent was necessarily to be below Rs. 2,000/ -. THE landlord filed counterfoils of the cheques in evidence in support of the rate of rent given by NTPC. It is an admitted position that the garage was not given on rent to the NTPC. It is argued that since it was a public undertaking, it is well known that the rate of rent is higher where such establishment are tenant whereas private persons are charged lower rate of rent. THE landlord has failed to establish the rate of rent as Rs. 2,500/- specially in absence of a written agreement between the revisionist and landlord. THE Court below has committed an illegality in coming to a conclusion that the rate of rent is Rs. 2,500/- and consequently the applicability of the Rent Control Act. Emphasis has been laid on the statement of the landlord given before the Court below wherein he has admitted in paragraph 8 that previously an Engineer Sri M. R. Gupta was the tenant at the rate of Rs. 1,850/-, besides the electricity and water charges. THEre was a written agreement but despite such an admission, the landlord did not bring it on record and, therefore, adverse inference was liable to be drawn. It is also submitted that DW-1 (revisionist) has stated on oath that he did not know Sri Satya Prakash Srivastava Advocate and Jai Prakash Jaiswal who were adduced as witnesses by the landlord. THE settled principle of law is that it is the burden of the plaintiff to prove the rate of rent and statement by the landlord is not sufficient. Sri U. N. Sharma has disputed the arguments of Sri Bhagwati Prasad Singh. He has submitted that NTPC is a Government company and the common assumption that a corporate body pays higher rent cannot be accepted. The assertion of the learned Counsel for the revisionist to the contrary is farfetched. It is only private companies who pay exorbitant rent. Besides the previous tenant did not have the garage in his tenancy and the water and electricity charges was addition to the rent. The revisionist was paying a consolidated rent inclusive of water and other charges. Besides he was given an additional accommodation as a motor garage. In the year 1994 the rate of rent inclusive of taxes for seven rooms and a garage, by no stretch of imagination can be said to be exorbitant. At the relevant time, the going rate of rent was Rs. 4,000/-, therefore, just because the landlord stated in his statement that he had given the accommodation at a lower rate of rent on account of intervention of Sri Hari Mohan Srivastava, cannot be a basis to hold that the rate of rent was less than Rs. 2,000/ -. At this stage, the revisionist has failed to point out any reason to come to the conclusion that the Court below made a wrong assessment of the evidence on the basis of the pleadings.;