Surya Prakash Kesarwani, J. - (1.) Heard Sri D.N. Mishra, learned counsel for the defendants-petitioners/ tenants/ judgment debtors and Sri K.M. Garg, learned counsel for plaintiffs-respondents/ landlords/ decree holders.
(2.) By judgment and decree dated 23.12.2016 in S.C.C. Suit No.75 of 2010 passed by the Additional District Judge, Court No.1 Kanpur Nagar, the suit of the plaintiffs for ejectment of the defendants-petitioners as also the recovery of rent etc. was decreed. Against the aforesaid judgment, the defendants-petitioners/ tenants/ judgment debtors had filed a S.C.C. Revision No.11 of 2017 (Smt. Chandrawati and another vs. Anil Kumar Agrawal and another), which was disposed of vide order dated 06.02.2017 as under: "Heard learned counsel for the revisionists; Sri K. M. Garg for the plaintiff-respondents; and the perused the record. The present revision has been filed against the judgment and decree dated 23.12.2016 passed by the Additional District Judge, Court No.1, Kanpur Nagar in SCC Suit No. 75 of 2010 by which the suit of the plaintiff-respondents for ejectment of the defendant-revisionists as also rent, etc. has been decreed. The plaintiffs' case in nutshell was that the suit property was purchased by them vide registered sale-deed dated 13.02.2006 from the erstwhile owner/landlord, namely, Gaya Prasad Gupta and Smt. Radha Devi Gupta. By the sale-deed, the arrears of rent with effect from 11.11.1983 was also assigned. According to the plaint case, the defendants had been a defaulter in payment of rent since 11.11.1983 and that the tenancy was duly terminated by registered notice dated 02.07.2007, which was served on the defendants on 03.07.2007. It was also claimed that the defendant had made material alterations which had reduced the utility of the building. The defendant-revisionist contested the suit by taking various pleas, as a result, seven points for determination were framed by the trial court. One of the issues was whether there was landlord-tenant relationship between the plaintiff and the defendant. The trial court found that by virtue of section 109 of the Transfer of Property Act, the plaintiff had become landlord of the premises pursuant to sale-deed executed by the previous landlord whose ownership and title was admitted to the defendant. The Court found the tenancy termination notice valid and found that the tenant had been not able to prove that he had paid rent since 11.11.1983. On the issue relating to benefit of the provisions of section 20(4) of the U.P. Act No. 13 of 1972, in paragraph 48 of the judgment, the court below held that to avail the said benefit the tenant was required to deposit Rs. 8490/- on the first date of hearing but the deposit made was Rs. 2940/- only which fell short of the requirement and, therefore, the benefit of sub-section (4) of section 20 was not available to the defendant. After considering various aspects, the Court found that on the date of the institution of the suit, the entire arrears of rent except for the period of 20 days had become barred by limitation, accordingly, it decreed the suit for possession and for Rs. 20/- with water tax of Rs. 3.60/- towards arrears. It further held the plaintiff liable for damages at the rate of Rs. 1,000/- per month from the date of termination of tenancy up to the date of handing over of possession. The learned counsel for the revisionist has assailed the judgment and decree passed by the trial court by claiming that the notice terminating the tenancy was dated 02.07.2007 whereas the suit was instituted on 14.07.2010 i.e. beyond the period of three years and, therefore, the suit was barred by limitation. It has also been submitted that the damages at the rate of Rs. 1,000/- per month ought not to have been awarded because in the notice, the landlord-respondent had claimed damages at the rate of Rs. 100/- per day and, more so, because the suit was filed after three years. It has also been submitted that the finding returned by the court below that there had been default in payment of rent is not legally justified. Sri K.M. Garg, learned counsel for the plaintiff-respondents, has submitted that twelve years is the period of limitation prescribed by Article 67 of the Schedule to the Limitation Act for a landlord to recover possession from a tenant after determination of his tenancy and, therefore, the suit was well within the period of limitation. He further submitted that the court below has awarded damages at a lower rate than what was claimed and the damages has been awarded after considering the evidence on record and, more so, after considering the present inflationary environment. Therefore, the damages awarded cannot be said to be arbitrary or illegal. He further submitted that the finding that the defendant-revisionists were defaulter in payment of rent is based on appreciation of evidence on record and is not vitiated in any manner. It has been submitted that there was a clear mention in the sale-deed that the tenant had been in arrears since 11.11.1983 and since the tenant had failed to prove that the rent for the period was ever paid, the finding returned by the court below cannot be said to be perverse. I have given thoughtful consideration to the submissions of the learned counsel for the parties. In so far as the limitation for filing the suit for ejectment of a tenant is concerned, Article 67 of the Schedule to the Limitation Act provides that the limitation period of 12 years shall begin when the tenancy is determined. Since the suit has been instituted well within the period of 12 years from the date of determination of tenancy, the suit was well within the period of limitation and, therefore, the submission of the learned counsel for the revisionist that the suit was barred by limitation cannot be accepted. Moreover, the court below has taken care not to decree the suit for arrears of rent because except for 20 days rent, the entire arrears of rent had been found to be barred by limitation. In respect of the submission that the court below ought not to have awarded damages at the rate of Rs. 1,000/- per month, suffice to say that considering the inflationary environment and the rental value of properties as also the fact that the said amount is payable from the date of determination of tenancy up to the date of handing over possession, this Court finds no good reason to interfere with the said part of the decree. In so far as the finding as regards default in payment of rent is concerned it is based on appreciation of the evidence brought on record and keeping in mind that the defendant had not produced any document to show that the rent for the period was duly paid as also that the sale-deed had disclosed that the tenant had been in arrears of rent, this court finds no good reason to interfere with the said finding of fact. At last, the learned counsel for the revisionist prayed for sometime to vacate the premises. Sri K.M. Garg submitted that if reasonable time is provided to the defendant-revisionist to vacate the premises, upon deposit of the decretal amount and furnishing usual undertaking, he would have no objection. In view of the above, the judgment and decree passed by the court below is affirmed. However, it is provided that if by 15.03.2017, the defendant-revisionists deposits the entire decretal amount payable under the decree of the court below including the damages, and, further, deposit damages at the rate of Rs. 1,000/- per month up to 31.05.2017, by 15.03.2017 in the court below; and furnish an undertaking by the said date that they shall handover vacant and peaceful possession to the plaintiff-respondent by 01st June, 2017, they shall not be evicted from the premises in dispute, pursuant to the judgment and decree passed by the court below, till 31.05.2017. It is made clear that if the decretal amount as also the damages payable up to 31.05.2017 as well as the undertaking is not deposited by 15.03.2017 in the court below, then it would be open to the plaintiff-respondent to execute the decree forthwith. If, after furnishing an undertaking, the defendant-revisionists do not vacate the premises and handover vacant possession to the plaintiff-respondent by 01.06.2017, then it shall not only be open to the plaintiff-respondent to execute the decree passed against the defendant-revisionist but it shall also be open to the plaintiff-respondent to initiate contempt proceeding against the defendant-revisionist for violation of the undertaking. With the aforesaid observations, the revision is disposed of. "
(3.) The defendants-petitioners/ tenants/ judgment debtors have neither submitted any undertaking nor deposited the entire decreetal amount in compliance to the afore-quoted order dated 06.02.2017. Consequently, the plaintiffs-respondents/ landlords/ decree holders moved an execution application on 10.04.2017 in the court of Ist Additional District Judge, Kanpur Nagar, which was numbered as Execution Case No.87 of 2017 (Anil Kumar Agrawal and others vs. Smt. Chandrawati and others). In the aforesaid execution case, the defendants-petitioners/ tenants/ judgment debtors moved an Application 51C2 praying to postpone the execution proceedings for reason that a recall application has been filed in S.C.C. Revision No.11 of 2017 before this court for recall of the order dated 06.02.2017. This Application 51C2 was rejected by the Additional District Judge, Court No.1, Kanpur vide order dated 04.08.2017, however, the execution proceeding was adjourned subject to cost of Rs.10,000/-. On 30.11.2017, the objection of the defendants-petitioners/ tenants/ judgment debtors being paper No.46C2 was considered and the parties were heard and thereafter, the impugned order dated 30.11.2017 was passed rejecting the objection 46C2 under Section 47 C.P.C., as under:;