- (1.) B. Dikshit, J. This appeal is by a landlord against tenant arising out of a suit for eviction from a building to which U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short 'act') is applicable. The suit has been filed after determination of tenancy on the ground that the tenant is in arrears of rent for more than four months and has failed to pay the same to landlord within one month from the date of service of notice of demand. According to landlord the condi tions laid down in Section 20 (2) (a) stood fulfilled and therefore eviction was sought. The tenant contested the claim of landlord. According to tenant the rent under Section 5 of the Act was not en hanced by a valid notice and, therefore, as the notice of enhancement of rent was invalid for the reason that the landlord enhanced rent by more than 25% which was being paid at the time of enforcement of Act, therefore, the notice of demand at enhanced rate of Rs. 251- was not valid, hence the suit was liable to fail.
(2.) TO determine the controversy, it is necessary to mention relevant facts. Ad mittedly the rent of disputed premises was Rs. 40/- per month. On enforcement of the Act landlord served a notice for enhance ment of rent to Rs. 62. 50/- per month besides Rs. 6 ()/- per annum as water tax. The tenant in reply expressed that he was willing to pay rent at the rate of Rs. 50/- per month on certain condition. The mention ing of condition is not necessary for the present. As the tenant did not pay rent at the rate of Rs. 50/- per month, the landlord served a notice of demand on the tenant at the rate of Rs. 50/- per month for the period subsequent to enforcement of the Act. The defendant did not pay arrear of rent demanded by notice served upon him whereby landlord demanded rent at the rate of Rs. 50/- per month but the tenant deposited rent at the rate of Rs. 40/- per month in Court. As the tenant did not pay the rent demanded by landlord, the landlord filed suit for arrear of rent at the rate of Rs. 50/- per month. The landlord sought defendant-tenant eviction from disp uted premises. The Additional Munsif Ghazipur decreed the suit in respect of rent at the rate of Rs. 50 per month but so far relief for eviction is concerned, the suit was dismissed. An appeal was preferred by landlord in respect of that part of the decree by which his suit for eviction was dismissed. The defendant-tenant also preferred appeal in respect of decree for arrear of rent which were decreed @ Rs. 50/- per month instead of Rs. 40/- per month. The Appellate Court held the notice in respect of enhancement of rent invalid and, therefore, did not hold the tenant defaulter in payment of arrears of rent as the tenant deposited full rent in Court for the period in question at the rate of Rs. 40/- per month. The Appellate Court maintained the decree for rent at the rate of Rs. 50a per month on equitable grounds. It observed that the landlord was to get Rs. 50/- per month as the tenant in his written statement as well as in the witness-box agreed to pay Rs. 50/- per month. Learned counsel for appellant-landlord contended that the notice under Section 5 to enhance rent to Rs. 62. 50/- was valid to the extent of Rs. SO/- and tenant was liable to pay enhanced rent to that extent. He contended that the Courts below erred in not accepting notice to that extent valid. Hd further contended that the findings recorded by the two Courts below and a decree passed on its basis at the rate of Rs. SO/- per month as rent finally deter mined that rent stood enhanced to Rs. 50/-and as tenant deposited rent at the rate of Rs. 40/- per month in Court, the tenant happens to be in arrears of rent which he did not pay despite demand by notice and therefore suit for eviction was liable to be decreed. The learned counsel for landlord further contended that it is not open for tenant to dispute the validity of notice in respect of enhancement of rent in these proceedings as tenant had remedy against such a notice under Section 8 of the Act in which the validity of notice for enhance ment of rent could be gone into. He con tended that under Section 8 of the Act District Magistrate alone could determine as to what extent the rent could be en hanced and as there is specific provision under the Act for determining such a dis pute, such a dispute co uld not be raised in a regular suit. The contention is that the landlord had a right to enhance the rent unilaterally and if tenant was aggrieved by notice of enhancement then he could have moved the District Magistrate against en hancement by notice to Rs. 62. 50/-which is more than 25% and could have claimed that enhancement can be to the extent of Rs. SO/- only. In support of argument that landlord can enhance the rent unilaterally, the counsel for petitioner relied upon the case of Nand Ram Sharma v. 1st Additional District Judge, Jhansi, 1993 (1) Allahabad Rent Cases 263. The question which first requires determination in this case is whether a notice for enhancement of rent under Sec tion 5 of the Act is valid even when the landlord demanded as rent an amount which is more than the permissible limit of 25% and whether by such a notice the rent shall be deemed to have been increased to the extent of 25% and notice is valid to that extent ? The case of Sant Narain Mehrotra v. Ram Kishan Gupta, 1980 ALJ 34, which was a case under U. P. (Temporary) Control of Rent and Eviction Act, 1947 is complete answer to said questions, which arise for determination in this case. Section 5 of 1947 Act is similar to Section 5 of U. P. Act 13 of 1972, which is under consideration, and both provisions enable landlord to enhance rent upto 25% unilaterally. A Division Bench of this Court, considering the question if a notice of enhancement of rent would be valid in case the amount of enhancement shown in it was beyond the permissible limit, held in the case of Sant Narain Mehrotra (supra) that by such a notice enhancement of rent cannot be held to be valid even to the extent to which enhancement could be made according to law, if in fact, the enhancement notified in notice is in excess of what is permissible under law. A learned single Judge of this Court while considering Section 5 of U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 followed aforesaid Division Bench in the case of Lalta Prasad v. 1st Additional District Judge, Bijnore, 1984 (1) ARC 507 wherein it held that the notice mentioning enhancement by an amount in excess of permissible limit is invalid and landlord cannot claim any enhancement of rent on the basis of such a notice.
(3.) THE counsel for petitioner has relied on the case of Nand Ram Sharma v. 1st Additional District Judge, Jhansi (supra) in support of his argument that notice enhancing rent by an amount in excess of 25% is valid. THE case cited is an authority for proposition that landlord can enhance rent unilaterally. It did not determine if notice wherein landlord notiffed enhance ment of rent beyond permissible limit is valid" nor it determined that if the notice is such than it will be valid up to 25%, which is permissible limit. As the notice to en hance rent is determined invalid; the defendant-tenant could not be expected to tender enhanced amount at the rate of Rs. 58 per month and he can not be con sidered defaulter in payment of arrear of rent because he did not tender to landlord or did not deposit in the Court enhanced amount at the rate of Rs. 50/ -. It is not in dispute that arrear of rent stood deposited at the rate of Rs. 40 per month. It does riot make any difference in respect of this posi tion, even when tenant was willing to en hance rent with certain conditions to the extent of Rs. 50/- per month. For aforesaid reason the failure of tenant to tender or deposit rent with 25% increase cannot be considered that the ground for filing suit for eviction contemplated under Section 20 (1) (a) of the Act arose in this case. This takes us to next argument of learned counsel for the appellant that the finding of fact has been recorded by Court that the rent payable by the tenant is Rs. 50/- per month and the decree passed by Court below is also on that basis and, therefore, the tenant is to be considered to have been in arrear of rent at the rate of Rs. 50 per month. He contended that as tenant deposited rent of Rs. 40 per month, a decree of eviction was to be passed on the ground that he was in arrear of rent for over four months and did not pay full rent despite notice of demand. The argument is unsustainable. On bare read ing of judgment passed by lower Appellate Court it is apparent that the Court granted decree at the rate of Rs. 50 per month on equitable consideration and. not because notice enhancing rent was valid. It did not accept the case of landlord that tenant was liable to pay rent at the rate of Rs. 50 per month. The Appellate Court granted decree at the rate of Rs. 50 as the tenant in reply to the notice for enhancement has said that he was ready to pay Rs. 50 per month as enhanced rent. It was tenants willingness to pay rent at the rate of Rs. 50 per month that decree has been granted at the rate of Rs. 50 per month. So far notice of enhancement of rent is concerned, as held earlier, it was invalid and therefore the plaintiff was not entitled to get Rs. 50 per month as rent on that rjasis. For said reason even when the Court below granted decree at the rate of Rs. 507-per month, no decree for eviction could be passed on the ground that petitioner failed to pay arrear of rent for over four month despitenoticeofdemandin writing.;