BHAIRO PRASAD Vs. NARAIN KRISHNA BHAGWAT

JUDGEMENT

(1.) Present writ petition in question has been filed by petitioner-tenant questioning the validity of the order passed by Judge Small Causes Court Varanasi in J.S.C.C. suit No. 76 of 2002, Narain Krishna Bhagwat v. Bhairo Prasad and others, wherein degree of ejectment and damages has been passed on the ground of arrears of rent and the order of its affirmance in J.S.C.C. Revision No. 45 of 2007 decided on 1.5.2009 by Additional District Judge, Court No. 12 Varanasi. Brief background of the case is that in the district of Varanasi there is one two door shop Situated in house No. K 17/10 Laxamanjoshi Gali, Ratan Phatak, Varanasi City. Narayan Krishna Bhagwat filed J.S.C.C. suit No. 76 of 2002 for decree of arrears of rent as well as decree of ejectment from the shop in question with the allegations that plaintiff and defendant set No. II are owners of landlords of House No. K 17/10 Laxamanjoshi Gali, Ratan Phatak, Varanasi City that in the shop in question Late Mukund Sardar was tenant at the rate of Rs. 15 per month which was enhanced to Rs. 17 per month from 7.6.1975 and tenancy starts from first date of English Calender month terminate on the last day of the month, that after death of Mukund Sardar, defendant set No. 1 became joint tenants, but only Bhairo Prasad sits in the shop in question; that against defendant set No. 1 rent of Rs. 5,542/- is due from 7.6.1975 apart from interest at the rate of Rs. 1.50 per hundred per month, Water Tax, Sewer Tax, which in spite of demand of notice dated 28.6.2002/1.7.2002 did not pay, but since suit cannot be filed for more than 3 years rent, hence it is being filed only for 3 years rent; that defendant No. 1 said that he has deposited rent in the Court but it is incorrect, inasmuch as plaintiff did not receive any notice and even if any amount is deposited in the name of Krishna Vinayak Bhagwat, defendants cannot take benefit of that; that defendant set No. I have not complied with the provisions of section 30(4) of the Act, hence they cannot take benefit of alleged deposit; that plaintiff and defendant set No. 2 sent notice dated 28.6.2002/1.7.2002 to the defendant set No. 1 by registered post and under certificate of posting, demanding rent, but on account of non payment cause of action arose to file suit inasmuch as defendant No. 1 sent incorrect reply dated 28.7.2002 that the cause of action arose 7.7.1975 when rent for June 1975 was not paid, thereafter every month and lastly when notice was sent on 1.7.2002 but defendant set No. 1 in spite of receipt of notice neither paid rent nor shop was vacated hence the suit. In the said proceeding petitioner filed written statement dated 12.5.2003 denying allegation made in the plaint except relationship of landlord and tenant between plaintiff defendant set No. 2 and defendant No. 1 enhancement of rent from Rs. 15 to 17 was also denied. In additional places it has been stated by defendant No. 1 petitioner that Late Mukund Sardar, father of the defendant No. 1 paid Rs. 1005 to the landlord Krishna Vinayak Bhagwat, which was to be adjusted upto the rent of 6.6.1975 and in the meantime a deed was executed between them on 18.10.1969, wherein it was stipulated that tenancy will start from sixth of each month and terminates on fifth of next month, original copy whereof was with Krishna Vinayak Bhagwat and that from 6.7.1975 rent would be at Rs. 17/- per month defendant Nos. 2 to 4 have got no concern with shop in question and it is defendant No. 1 who is tenant; that assertions of plaintiff that rent of Rs. 5,542/- from 7.6.1975 apart from water tax, sewer tax is due is totally incorrect, whereas correct facts are that water tax, sewer tax are included in the rent; that on 4.6.1991 defendant No. 1 paid Rs. 3,264/- rent for 6.7.1975 to 5.6.1991 but he did not give any receipt; that thereafter defendant No. 1 sent rent to the tune of Rs. 2278/- for the period 6.6.1991 to 5.8.2002 at the rate of Rs. 17/- per month to Smt. Sunanda Bhagwat, wife of Late Krishna Vinayak Bhagwat through money order dated 31.7.2002, which was refused, as such defendant No. 1 is not a defaulter notice dated 1.7.2002 is illegal and suit instituted on that basis is not maintainable; that defendant No. 1 deposited Rs. 9500/- under section 20(4) of the Act unconditionally including 9% interest on 11.12.2002 prior to first date of hearing and thereafter continuously depositing the same in the Court, hence defendant No. 1 is liable to be relieved from eviction and suit is liable to be dismissed. Petitioner also filed additional written statement dated 10.5.2007 denying amended pleadings including alleged oral partition dated 10.7.2003 and alleged memorandum dated 28.3.2004. Plaintiff and defendant No. 1 adduced documentary evidence in respect of their respective cases. Plaintiff examined himself as P.W. 1 and Ajay Kumar Barnawal as P.W. 2. Petitioner examined himself as D.W. 1 and Buddhu Sharma as D.W. 2. J.S.C. Court thereafter considered the matter and passed order of ejectment and arrears of rent. Said judgment and order passed by Judge Small Causes Court has been subject-matter of challenge in J.S.C.C. Revision No. 45 of 2007 and said Revision has been dismissed. At this juncture present writ petition in question has been filed.

(2.) Pleadings inter se parties have been exchanged, and thereafter present writ petition has been taken up final hearing and disposal with the consent of the parties.

(3.) Sri Ajai Kumar Singh, learned Counsel for the petitioner contended with vehemence that in the present case decree of ejectment could not have been passed on account arrears of being there, inasmuch as on first date of hearing entire amount stood deposited in terms of section 20(4) of U.P. Act No. XIII of 1972, as such judgment and decree could not have been passed and same is liable to be quashed.