- (1.) S. U. Khan, J. Heard learned counsel for the parties.
(2.) THIS is landlord's writ petition arising out of S. C. C. Suit No. 2 of 1990, filed by him against tenant- respondent No. 3 Nazakat All, before J. S. C. C. /civil Judge, Rampur. Property in dispute was purchased by the petitioner in or about 1970. Respondent No. 3 was tenant since before that date. In 1970 some litigation took place in between the petitioner and respondent No. 3, hence petitioner stopped accepting rent from respondent No. 3. THIS fact was admitted by the petitioner-landlord in the suit giving rise to the instant writ petition as is mentioned in the judgments of the courts below. Thereafter tenant started depositing the rent @ Rs. 40 per month under Section 7c of U. P. Temporary Control of Rent and Eviction Act, 1947 (hereinafter referred to as the "old Act" ). Thereafter landlord on 18. 9. 1972 gave a notice to the tenant under Section 5 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "act" ). Under Section 5 of the Act rent could be enhanced by 25 per cent by giving notice within three months from the enforcement of the Act, i. e. , till 15. 10. 1972. In the notice it was stated that the rent was being enhanced from Rs. 40 per month to Rs. 50 per month w. e. f. 15. 7. 1972. In para 4 of the notice it was stated that w. e. f. 15. 7. 1972 tenant was liable to pay rent @ Rs. 50 per month to the landlord and 10 per cent water tax thereupon. In the last paragraph it was mentioned that w. e. f. 15. 7. 1972 rent Rs. 50 per month should be paid to the landlord. The exact words used in the notice given by the petitioner's advocate were that with effect from 15. 7. 1972 you the noticee should pay rent @ Rs. 50 per month to my client. Landlord admitted that the rent deposited by the tenant only up to 15. 7. 1972 had been withdrawn by him. This clearly means that the landlord on 18. 7. 1972 when he gave first notice was aware that rent was being deposited under Section 30 of the Act or under Section 7c of the old Act. In view of this it was essential for the landlord to indicate in the said notice that the rent should not be continued to be deposited before the Court under Section 7c of the old Act (or Section 30 of the Act) and he was ready to accept the rent directly. In fact, the said notice is only and only a notice for enhancement of rent and it cannot be said to be a notice signifying that landlord/opposite party will accept the rent directly as required by Section 30 (1) of the Act. Even after the receipt of the notice dated 18. 9. 1972, it is admitted, that the tenant continued to deposit the rent under Section 30 of the Act up till 1989. Notice dated 18. 9. 1972 was replied on 5. 10. 1972. Reply notice is Annexure-2 to the writ petition. In the reply notice right of landlord to enhance the rent was disputed.
(3.) THEREAFTER notice of termination of tenancy and demand of rent was given on 25. 8. 1989. True copy of the said notice is Annexure-3 to the writ petition. Reply of the said notice was given, copy of which is Annexure-4. In Para 8 of the reply notice it was categorically stated that under Section 30 of the Act tenant had already deposited Rs. 8,060, however, he was remitting through money order the entire amount claimed by the landlord (@ Rs. 50 per month plus Rs. 5 per month water tax) after deducting the aforesaid amount of Rs. 8,060. The balance came to Rs. 3,242. 50. The said amount was admittedly sent by the tenant to the landlord through money order which was refused by the landlord. The trial court held that notice dated 18. 9. 1972 was not valid as it sought to enhance the water tax also, hence rent did not stand legally enhanced by the said notice. Trial court further held that until 1972 rent deposited by the tenant @ Rs. 40 per month was admittedly withdrawn by the landlord, hence he was estopped from asserting that the rate of rent was Rs. 50 per month. The trial court held that the rate of rent was Rs. 40 per month and no water tax was payable thereupon. Trial court further held that as notice dated 18. 9. 1972 was illegal, hence the tenant was not obliged to pay the rent directly to the landlord. Ultimately the suit was dismissed through judgment and decree dated 3. 8. 1990. Against the said judgment and decree landlord petitioner filed S. C. C. Revision No. 76 of 1990. Revision was dismissed by A. D. J. (Special Judge) Rampur on 30. 9. 1993 even though on different grounds, hence this writ petition.;