- (1.) THIS revision has been filed by the plaintiff/landlord under Section 25 of Provincial Small Cause Courts Act, 1887, challenging the judgment and decree dated 20-0/-2000 passed in S. C. C. suit No. 04 of 1997 by Judge, Small Cause Court/district Judge, Nainital, whereby the plaintiff's suit has been dismissed with costs.
(2.) I heard learned counsel for the parties and perused the record. Brief facts of the case are that a one-room house consisting of a shop, situated in Rudrapur, the boundaries of which are detailed in the plaint, was owned by one late Shri Dwaraka Dass. Said Dwaraka Dass let out the shop to defendant Raj Kumar Sachdeva on a rent at the rate of Rs. 200/- per month. It is pleaded in the plaint that after the death of Dwaraka Dass, his widow Radha Rani and his daughters became owners and landlord of the shop. Plain tiff has pleaded that on 21-09-1994, he purchased the house in suit from them (Radha Rani and her daughters) and be came owner and landlord thereafter. As per the plaint case, at the time when the plaintiff Chaman Lal, purchased the house, the rate of rent had already in creased to Rs. 700/- per month. It is pleaded in the plaint that the rent on said rate i. e. Rs. 700/- per month from September, 1994, was demanded from the defendant/tenant through a notice dated 0/-09-1996, in reply to which he (defendant) got sent arrears of rent at the rate of Rs. 200/- per month from September, 1994 to September, 1996 through cheque No. 008610, dated 14-10-1996. The plaintiff did not accept the same and got it returned to the de fendant. Again through a notice dated 13- 01-1997, plaintiff demanded arrears of rent for a period from September, 1994 to December 1996, amounting to Rs. 19,600/- and also terminated the tenancy of the defendant by serving him one month notice. In reply to this no tice, again denying the liability to pay the rent at the rate of Rs. 700/- per month, defendant got sent another cheque No. 008627 dated 03-02-1997, offering payment of rent at the rate of Rs. 200/-per month. On this, plaintiff. filed the S. C. C. suit No. 04 of 1997, for ejectment of the defendant and for re covery of arrears of rent and mesne profits. The defendant contested the suit and filed the written statement. In the written statement, it is admitted that the shop in question belonged to late Shri Dwaraka Das and the defendant was in ducted as tenant by him. Rest of the contents of the plaint, as pleaded were not admitted. In the additional pleas, it is pleaded by the defendant that he does not want to create any dispute, as to the ownership of the plaintiff but it is categorically pleaded that the plain tiff is alleging rate of rent to be Rs. 700/ - per month only to make a ground to eject the defendant. It is further pleaded in the written statement that the actual rate of rent is Rs. 200/-per month, which he always offered to pay and made the payment. But the plaintiff did not ac cept the same. It is specifically pleaded that the defendant is not the defaulter in payment of rent. Apart from filing the written statement, an application 27-C was moved before the trial court on 20-04-1998 by the defendant,, seeking protec tion of sub-section (4) of Section 20 of U. P. Act 13 of 1972, stating that he is depositing, unconditionally, the entire rent due with interest and costs on the first date of hearing so that the decree of ejectment, as against him may not be passed. Learned Judge, Small Cause Court, recorded the evidence, adduced by the parties and heard them. It dismissed the suit for ejectment vide judgment and order dated 20-0/-2000, deciding all the three points of determination in favour of the defendant. The point of determination are enumerated by the trial court in its judgment as under: 1. What is the rate of rent, whether Rs. 2001- or Rs. 7001-per month? 2. Whether the defendant had com mitted default in payment of rent by not remitting taxes to the plaintiff? 3. Whether the defendant has de posited the entire amount on the first date of hearing and is he entitled to get benefit of Section 20 (4) of U. P. Act No. 13 of 1972? On the aforesaid points of deter mination, the trial court has held that rate of rent was Rs. 200/ -per month and not Rs. 700/- per month, as alleged by the plaintiff. It further found that there is no default, committed by the defend ant in payment of rent. Also, the trial court found that in view of the fact that defendant has depos ited rent due, with interest and costs before the first date of hearing, as such, he is entitled to the benefit of sub-section (4) of Section 20 of U. P. Act No. 13 of 1972. With said findings, learned Judge, Small Cause Court, dis missed the suit.
(3.) BEFORE further discussions, it is pertinent to mention here the relevant provisions of law applicable to the case. Sub-section 2 (a) and sub-section (4) of Section 20 of U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (U. P. Act No. 13 of 1972) reads as under : " (2) A suit for eviction of a tenant from a building after the determina tion of the tenancy may be instituted on one or more of the following grounds, namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the land lord within one month from the date of service upon him of a notice of demand. . . (4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupa tion of being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount al ready deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a de cree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that, ground. Provided that nothing in this sub-sec tion shall apply in relation to a ten ant who or any member of whose family has built or has Otherwise ac quired in a vacant state, or has got vacated after acquisition, any residen tial building in the same city, munici pality, notified area or town area. Explanation - For the purposes of this sub-section:- (a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the sum mons served on the defendant; (b) the expression 'cost of the suit' includes one-half of the amount of counsel's fee taxable for a contested suit. " From the perusal of the pleading of the parties and evidence on record, it is clear that the sole ground seeking ejectment is the default in payment of rent on the part of the defendant. The order sheet of the lower court, shows that suit was instituted on 01-04-1997 and summons were issued fixing 14-05-1997 by the court. On 14-05-1997, learned Judge, Small Cause Court, ob serving that the defendant is not served sufficiently, directed the plaintiff to take fresh steps and directed that summons be issued, fixing 08-0/-1997. Though the Judge, Small Cause Court observed on 14-05-1997 that the defendant was not served by that day but said obser vation is erroneous in law. It is clear from the record that before that first date of hearing, the defendant, after service of summons, moved application seeking protection under Section 20 (4) of U. P. Act 13 of 1972, from ejectment, on the ground he is ready to pay rent due, interest thereon and the costs of the suit, but he actually deposited said amount on 30-05-1997, i. e. much after first date of hearing- 14-05-1997. As such the trial court has erred in law that in holding that defendant made suffi cient deposits before first date of hear ing. Paper No. 28 C/3, contains chalan No. 13 of the deposit made by the de fendant of Rs. 10. 000/- on 30-05-1997 towards the rent due with interest and costs of the suit. The said deposit being after the first date of hearing, does not make defendant entitled to protection of Sub-section (4) of Section 20 U. P. Act 13 of 1972 and this Court is not in agreement with the finding given by the trial court in this regard (that is on the point of determination No. 3 ). And the finding on said point is reversed.;