- (1.) RAJESH Tandon, J. Heard Sri Vijay Bhatt on behalf of Sri Parmanand and Sri Sarvesh Agarwal for Smt. Durgawati. Both the civil revi sions are arising out of the same Suit No. 38 of 1998,
(2.) BY the present civil revisions filed under Section 25 of the Provincial Small Cause Courts Act, order dated 30th July, 2005 is in challenge by which the decree for eviction has been passed against Parmanand. On the basis of the defective boundary mentioned in the, the Judge Small Cause Courts has dismissed the suit of the plaintiff. Hence, the revision was preferred by the plaintiff as well be ing Revision No. 62 of 2003, Revision No. 90 of 2005 was preferred by the ten ant against the findings recorded against him. Briefly stated, a suit was filed by * the plaintiff-Smt. Durgawati praying for eviction of the defendant- Parmanand be ing Suit No. 38 of 1998. The plaintiff has alleged that he is the owner of the shop measuring 10 X 15 feet situated at Khatima, District Udham Singh Nagar. The defendant is tenant of the said shop at the rate of Rs. 380 /- per month. It was agreed between the parties that the defendant shall increase the rent to the extent of 5% every year. According to the averments made in the plaint, the plaintiff has submitted that from Janu ary, 1990 no rent has been paid to the defendant, details of which have been given in paragraph 3 of the plaint. The same are quoted below : Hindi 5. The plaintiff has sent a notice on 10th October, 1997, which was duly served upon the defendant on 10th Oc tober, 1997 determining the tenancy of the defendant and allowing him 30 days time to vacate the premises, but the de fendant neither vacated the premises nor paid the rent and as such he has be come a defaulter and is liable to be evicted. The tenancy having been termi nated from 15th November, 1997, the defendant denied to be the unauthorized occupar from 15th November, 1997. In paragraph 5 of the plaint, it has been stated that though the rent was due from 1990, but since it has become time barred, therefore, the rent is being claimed from 18th August, 1995 to 15th November, 1997 for a total sum of Rs. 13462. 20 and thereafter for unauthor ized occupation of the shop from 15th November, 1997 to 18th August, 1998 the damages have been claimed to the extent of Rs. 4854. 40. The total amount which was claimed by the plaintiff, therefore, was to the extent of Rs. 17,372. 60. 6. Apart from the above, the plain tiff is also entitled for the amount paid towards lawyers fees, court- fee as well as 9% interest. 7. A written statement was filed by the defendant denying the averments contained in the plaint. It was stated that the defendant is not a defaulter and has paid the rent to the plaintiff. It has also been stated. that proper notice has not been served by the plaintiff on the defendant, therefore, suit is liable to be dismissed. 8. On behalf of the plaintiff a rep lica was filed, where in paragraph 1, 2 and 3 the discription of the tenancy was sufficiently explained by paper No. 73-Ga dated 18th July, 2004. The same is quoted below : Hindi 9. The defendant has also replied the aforesaid replica stating in paragraph to the following effect : Hindi 10. In the plaint, the plaintiff has stated that he is the owner of the shop in dispute and the defendant is the tenant of the said shop. Relevant paragraphs 1 and 2 of the plaint are quoted below : Hindi 11. The defendant in its reply has stated to the following effect : Hindi 12. As will appear from the afore said paragraphs of the plaint as well as of the written statement, the defendant has admitted the plaintiff as the owner and the defendant being the tenant of the plaintiff. The dispute was only with regard to the boundary. 13. On behalf of Heera Singh, an affidavit was filed stating therein that the defendant is the defaulter and he has also proved the receipts by which the de fendant has paid the rent from time to time. Relevant paragraphs are quoted below : Hindi 14, The receipts have also been proved by Sri Rajendra Singh paper No. 84 -Ga. Relevant paragraphs are quoted below : 15. As will appear from paragraph 3 of the replication, the plaintiff has also stated regarding the sub- letting of the shop to one Ratan Motwani and the said replication was taken on the record and the defendant was also given op portunity to rebut the same. He has filed a reply to the replication and in para graph 3 of the reply, it has been admit ted that Sri Ratan Motwani is the real brother and both are carrying on the business jointly. Paragraph 3 to that ef fect is quoted below : Hindi 16. On behalf of the plaintiff, one Naveen Chand son of the plaintiff was examined, who has deposed regarding the arrears of rent right from January, 1990 and has also stated that a notice was duly served upon the defendants. 17. One Sri Heera Singh was exam ined as P. W. 2. He has deposed regard ing the notice having been served and the defendant is the defaulter and he has not paid the rent since January, 1990. 18. One Sri Rajendra Singh was ex amined as P. W. 3, who has deposed about 5% per year increase in the rent. 19. The trial Court has framed as many as seven points for determination to the following effect : Hindi 20. So far as the point nos. 1 and 2 are concerned, the finding has been recorded by the Judge Small Cause Court that the shop no. 1 alone was let out to the defendant and the tenancy was started from 1st January, 1990. The said finding is quoted below : Hindi 21. As will appear from the afore said finding, the Judge Small Cause Court has observed that the defendant is a tenant of the shop no. 1 and not of shop no. 2 and the tenancy started from 1st January, 1990. So far as issue no. 2 is concerned, Judge Small Cause Court has recorded the finding that since the plaintiff has sent the notice for the shop no. 2 and the boundary which has been given in the notice was not correct, therefore, in absence of a proper notice, the suit was liable to be dismissed. 22. The Judge Small Cause Court further proceeded by recording a finding as to whether the defendant is a de faulter from 1st January, 1990. A find ing was recorded that the rent is due from 1st January, 1990 and the defend ant has failed to pay the rent as required by the plaintiff in order to get the im munity from the eviction. Further, the defendant has not deposited 9% inter est, court fee as well as time barred rent. The said finding is quoted below : Hindi 23. The benefit of Section 20 (4) of the U. P Act No. 13 of 1972, therefore was not extended to the defendant while deciding the issue no. 6. A finding was recorded that the shop has been subject to his brother. Thus the finding has been recorded against the defendant. The same is quoted below : Hindi 24. On the basis of the defective boundary mentioned in the, the Judge Small Cause Courts has dismissed the suit of the plaintiff. Hence, the revision 1 was preferred by the plaintiff as well be ing Revision No. 62 of 2003, Revision No. 90 of 2005 was preferred by the ten ant against the findings recorded against him. 25. Counsel for defendant-Permanand has stated that the notice was defective as the boundaries were wrong. 26. From the perusal of the plaint as well as written statement, it is evident that the plaintiff is the owner of the premises and the defendant is the ten ant. This fact has not been denied in the written statement. In the replication, the same fact has been explained by the plaintiff. 27. Further the Judge Small Cause Court has recorded the finding that the defendant is the tenant of shop no. 1 alone and not of shop no. 2. 28. Section 116 of the Transfer of Property Act provides as under : "116. Estoppel of tenant; and of li censee of person In possession.-No tenant of immovable property or per son claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immov able property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such person had a title to such possession at the time when such license was given. " 29. In Munnawar Vs. Add/. District Judge, Haridioar [2003 (2) ARC 608] af ter relying-upon the judgment of Joginder Singh and another u. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 533, it has been held as under : 12. In the case of Joginder Singh and another u. Smt. Joginder and others, JT 1996 (1) SC 467 :1996 SCFBHC 503, the Apex Court has relied upon the provisions of Section 116 of Evi dence Act and has held that no ten ant of immovable property can be al lowed to deny the title of the land lord. The observations are quoted below : "this is a settled view that having regard to the provisions of Section 116 of the Evidence Act no tenant of im movable property or person claiming through such tenant shall, during the continuance of the tenancy, be per mitted to deny the title of the owner of such property. In this connection, it would be relevant to make a refer ence to the decision of this Court in Veerraju v. Venkanna, 1966 (1) SCR 831: AIR 1966 SC 629, wherein this Court, with reference to the decision of Privy Council took the view as un der : "a tenant who has been let into pos* session cannot deny his landlord's ti tle, however, defective it may be, so long as he has not openly restored possession by surrender to his land lord. " 30. In Maroti Vs. Tulsiram and an other 1995 SCFBRC 1, the Apex Court has observed as under : "6. The findings recorded by the High Court and the trial Court were that the appellant had entered into the possession as a tenant and he is estopped to deny the title of the trust by operation of Section 116 of the Indian Evidence Act. " 31. The Apex Court in Shanti Devi Nigam Vs. Madan Lal Gupta [2004 SCFBRC 402] has held that where the local act provides that the defendant is entitled to receive the notice under the Special Act, notice under Section 106 of the T. P Act is not necessary. Relevant portion of the judgment is quoted below: "by the impugned judgment, the High Court was of the view that the notice issued by the landlady was not in accordance with law and the High Court was of the view that tile land lady should have issued proper notice under Section i66 of the Transfer of Property Act and as the notice of demand for eviction, was not ending with the month of the tenancy; the same was held to be not in accord ance with the mandate of Section 106 of the Transfer of Property Act and the eviction ordered by the trial Court was set aside and the matter was remitted for the purpose of re-determination of the arrears of rent. 4. The Counsel for the appellant sub mits that under Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 notice under Section 106 was not required for seeking eviction under Section 20 of the Act. It is also pointed out that under Section 20 (2) (a) specific no tice is provided for seeking eviction on the ground of arrears of rent and the notice issued by the appellant landlady seeking eviction under Sec tion 20 (2) (a) of the Act fulfilled the conditions required under law. Our attention was also drawn to the de cision of the Constitution bench of this Court in V. Dhanapal Chettiar v. Yasodai Ammal, (1979) 4 SCC 214 : 1980 ARC 1, wherein the very same question was considered in detail and it was held that notice under Section 106 of the Transfer of Property Act was not required to be sent for seek ing eviction under the provision of the Tamil Nadu Building (Lease and Rent Control) Act, 1960. The provisions in Uttar Pradesh Act are in pari mate rial with Tamil Nadu Building (lease and Rent Control) Act, 1960 and the decision applies in all force. There fore, the decision rendered by the High Court is not sustainable in law. We set aside the judgment of the High Court. The eviction order passed by the trial Court is affirmed and as the matter is now pending before the trial Court, the trial Court may pass appropriate orders in accordance with observations mace above. " 32. Counsel for the plaintiff has also referred the judgment of Mukundi Lal Vs. Srimati Ram Pyari 1971 AU137 where the replica has been filed and the same has been admitted. The defendant cannot have any objection regarding the boundaries alone and there is no need of amending the plaint. Relevant para graph 29 of the aforesaid judgment is quoted below : "29. In the instant case since no ob jection had been raised by the de fendant to the filing of the replication by the plaintiff and since the defend ant never alleged either in his written statement or before the courts below that any prejudice had been caused to him by filing the replication by the plaintiffs and in view of the fact that both the parties knew what the case of the parties was and since they evidence it cannot be said that with out amending the plaint plaintiffs suit could not be decreed. The plaintiffs filed the present suit on the basis of the Parcha Ex. 4 dated 5th march 1957. Ex. 4 is a relevant document; and reads as follows : "shri Pari Bhai Musammad Ram Dei Bibi Jauje Bal Mukand Ko Jog, likhi Rhagwan Das Prag Das Ki ram ram bachne. Asge rupia 2200 ankan bais sau marfat Ram Nath Dalai Ke aap se udhar liye so apke khata jama kare. Miti Bhadon Sudi 7 Sambat 2013. " 33. Counsel for the defendant-Parmanand has referred Chimarilal Vs. Mishrilal AIR 1985 SC 136 and State of Rajasthan and another v. Mohammed Ikbal and others AIR 1999 Rajasthan 169 on the footing that the pleadings in troduced by way of rejoinder should not be inconsistent and at variance with the original taken in the plaint. Further in Chimanlal Vs. Mishrilal (supra), it has been observed that the notice should contain the entire accommodation and not lesser part of it. 34. So far as State of Rajasthan and another v. Mohammed Ikbal and others (supra) is concerned, the plea with re gard to the rejoinder is wholly academic inasmuch as once a finding has been re corded that the plaintiff is the owner and the admittedly, the defendant is the ten ant of only one shop and the notice hav ing been sent terminating the tenancy, there is no further requirement with re gard to the specification and the plain tiff having explained the same in the boundary as well as statement, there is no further requirement. 35. Both the aforesaid judgments are not applicable to the facts of the present case in view of the fact that there is no denial of the relationship of landlord and tenants. 36. Counsel for the plaintiff-Durgawati has referred application filed under Section 21 (1) (a) of the U. P Act No. 13 of 1972, where it has not been denied that the defendant is not the ten ant. 42. In view of the above, I find cor rect boundaries as already given in in vading under Section 21 (1) (a) of the U. P. Act No. 13 of 1972. The defend ant admits himself to be the tenant of the plaintiff. 37. However, so far as the sub-let ting is concerned, a finding has been re corded that the defendant has sub let. Section s (g) provides that even brother does not included in the definition of the family. Section 3 (g) is reads as under : (g) "family", in relation on to a landlord or tenant of a building, means, his or her- (i) spouse, (ii) male lineal descendants, (iii) such parents, grandparents and any unmarried or widowed or di vorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes in relation to a land lord, any female having a legal right of residence in that building;" 38. Further in, Sunil Kumar Muklherji Vs. Kabiraj Bindu Madho Bhattacharya and others 1978 ARC 74 as well as in Subhash Chand Jain Vs. 1st Additional District and Sessions Judge, Saharanpur and others 1989 SCFBRC 174, it has been held by the Apex Court that in order to get immunity from evic tion, time barred rent has to be depos ited. 39. In Sunil Kumar Muklherji Vs. Kabiraj Bindu Madho Bhattacharya ya and others 1978 ARC 74, it has been observed as under : "6. The language of this clause is dif ferently worded. Had the intention been to insert the explanation with retrospective effect the words and be deemed always to have been inserted would have been used in this clause as the words and be deemed always to have been substituted' were used in clause (b) (i ). Accordingly, I am of opinion that the explanation which was inserted by U. P Act No. 28 of 1976 cannot be given retrospective operation. The deposit which was made on December 8, 1973 in pur suance of the tender submitted on December 7,1973 would be deemed to be a deposit on December 7, 1973. See K. P Jain v. Om Prakash 1966 A. L. J. . In this way the amount was deposited on that very date which was the date fixed for issues. This would be the date of first hear ing in view of the decision of this Court in Ladly Prasad v. Ram Shah Billa and others 1976 (2) A. L. R. 8, it is true that in Ladly Prasad's case, (supra) the provisions of Order XV, Rule 5 as added by U. P Civil Laws Amendment Act, 1972 had come up for consideration but in my opinion there is no reason why the same in terpretation to the words 'first hear ing' in sub-section (4) of Section 20 of the Act may not be given as has been given to those very words as used in Order XV, Rule 5 0 in Ladly Prasad's case. Accordingly, the appli cant was entitled to be relieved against the liability of eviction from the premises in question on account of the aforesaid deposit having been made by him. 7. Counsel for the applicant urged that even though the applicant was entitled to be relieved against his li ability from eviction on account of the aforesaid deposit the plaintiff opposite parties were not entitled to be paid over the entire amount aforesaid inasmuch as the deposit in cluded the rent even in respect of a period for which the claim had be come barred by time. In my opinion there is no substance in this submis sion in view of the decision of this Court in K. G. Trust v, R. Chandra 1977 A. L. J. 334 where it was held. The word 'due' occurring in Section 20 (4) of the Rent Control Act of 1972 has entirely a different context. It occurs in a section which provides, not an alternative right to relief against eviction. This right is founded updn the condition that the rent due must be paid. It confers no discretion on the tenant. The provision in ex plicit and mandatory. Unless the con dition is fulfilled, the right to relief against eviction does not accrue. 8. This, coupled with the fact that a time-barred arrears of rent continues to remain an undischarged debt, clearly means that the phrase entire amount of arrears of rent due 'would include arrears of rent, recovery of which has become time-barred with in meaning of clause (4) of Section 20'. 40. The defendant has failed to de posit the time-barred rent and as such on the ground of default alone, the plaintiff has been able to succeed in proving that the defendant is a defaulter and, therefore, finding recorded by the Judge Small Cause Court requires no in terference in the order by which the evic tion has been refused on the ground of notice. 41. The defendant has filed the re vision No. 90 of 2005 on the ground of payment of arrears and sub- letting, therefore, the same is dismissed. How ever, counsel for the defendant-Sri Parmanand has sought some time to vacate the premises in dispute. Time is allowed to the defendant up to 31st August, 2007 provided : (a) he furnishes undertaking on or before 31st May, 2007 to vacate The premises in dispute on or be fore 31st August, 2007. (b) he pays the entire arrears of rent/damages/mesne profits on or before 31st May, 2007. 1 (c) he pays on damages regularly in the first week of every month until the premises in question is vacated. On failure of the aforesaid condi tions, the plaintiff-landlord shall have lib erty to execute the decree against the defendant-tenant. 42. Revision No. 62 of 2005 is al lowed. The suit for eviction is also de creed. No order ,as to costs. .;