A.P.Misra - (1.) -The present civil revision is directed as against the order dated 1st April, 1988 passed by the Judge Small Causes Court by virtue of which the plaintiff's suit for eviction and for recovery of part of rent due has been decreed.
(2.) THE plaintiff's suit for ejectment on the ground of default with the allegation that the applicant was the tenant in the premises in dispute at the rate of Rs. 100/- per month and he was liable to pay, in addition to the said rent, the water tax and sewage tax and since he fell in arrears and did not deposit the same a notice was served on him and inspite of the notice since he did not pay, a suit for the same was filed. THE case of the defendant, however, is that though he is a tenant of the premises in question but he did not commit any default. In fact, he deposited the rent under section 30 of the Rent Control and Eviction Act when the landlord himself refused to accept the rent. It was the case that initially rent was Rs. 55/- and subsequently enhancement was made from time to time on account of the increase in tax. Thus the rent of Rs. 100/- included the tax payable by him. It is the case of the defendant while depositing the rent under section 30 of the Act specific mention was made that it includes the water tax. THE trial court, however, held that the rent of Rs. 100/- per month was deposited by the defendant and since it did not include the water tax and that not being deposited, default was committed by the tenant hence liable for eviction. It is against this the present revision has been preferred. The challenge made by the applicant against the impugned order are on number of grounds; firstly it has been argued that the demand made by means of notice of the arrear of rent while specifying the water tax the amount mentioned was not proportionate of the water tax leviable on the portion of disputed premises and thus notice itself is bad. I have perused the notice and also para 5 of the plaint, which specify the water tax. According to notice water tax was demanded from 15th July, 1972 to 31st March, 1981 at the rate of 6-1/4% and from 1st July, 1981 to 31st July, 1985 at the rate of 12-1/2%. This calculation was made on the basis of the rent of the premises in question for Rs. 100/- which has also been recorded in the assessment. It is not in dispute in this case that the rent of the premises in question is Rs. 100/- per month but what has been disputed initially is that this Rs. 100/- includes the water tax also. I have perused the impugned judgment. Before dealing the question regarding watar tax I would shortly decide the initial argument of the learned counsel for the applicant that Rs. 100/- includes the water tax also.
(3.) THE trial court has recorded a finding that the applicant has failed to prove that Rs. 100/- which is paid inclusive of the water tax. THE finding was also recorded that in view of section 7 of U. P. Act No. 13 of 1972 which speaks about the written contract between the landlord and tenant regarding payment of water tax by the tenant, the rent is due on the tenant. In fact argument was that it is not necessary that there should be a written contract under the aforesaid Act regarding payment of water tax and in the alternative it is urged that in any case the finding that Rs. 100/- is not inclusive water tax, cannot be sustained as he has not looked into other evidence on the record. Section 7 of the aforesaid Act opens with the words " subject to any contract in writing to the contrary .................. the tenant shall be liable to pay to the landlord in addition to and as part of the rent, that shall be water tax." It is not in dispute that there is no such contract in writing to the contrary and, therefore, the liability to pay water tax is on the tenant. The burden to prove about the payment of water tax is on the tenant. It is the tenant who has to prove that the rent which was paid was inclusive of water tax. The case of the applicant was that from time and again the rent was being enhanced only for the purpose of payment of enhanced tax-----from time to time. The applicant's case is that initially the rent of the premises in question was Rs. 55/-. It was enhanced in the year 1970 to Rs. 70/- and thereafter it was raised to Rs. 75/- per month from 1st September, 1972 and then to Rs. 85/- from 1st February, 1974 and then to Rs. 100/- from 1st June, 1977. It is on this basis the argument was raised that each increment shows that this increment in rent was on account of increase in taxes. It is not in dispute that the last increment as alleged by the applicant was since 1st June, 1977. It is in 1981 that the water tax was increased from 6-1/4% to 12-1/2%. In the present case I am concerned for the period w. e. f. 1st April 1985 to 18th October, 1985 in respect of the water tax. Thus it is for the applicant to show that aftet increase of water tax in 1981 there has been proportionate increase in the rent to include the water tax as part of the rent. Nothing has been shown even before me by the applicant to show such increase since 1st June, 1977. In view of this the finding recorded by the trial court that the applicant has failed to prove that the rent of Rs. 100/- is not inclusive of the water tax, cannot be said to be either illegal or preverse which calls for interference by this Court.;