OM PRAKASH NIGAM Vs. VED PRAKASH GUPTA

JUDGEMENT

(1.) This is a plaintiff's application in revision under Section 25 of the Provincial Small Cause Courts Act. It arises out of a suit for eviction of the defendant-opposite party from a house of which the applicants are admittedly the owners and landlords. The relief for recovery of arrears of rent and damages for use and occupation was also claimed. The Court below has decreed the suit only for recovery of arrears of rent amounting to Rs. 1400/ -. The rent of the suit has been dismissed. Shortly stated the plaint case was that the defendant was a tenant of the plaintiff on a monthly rental of Rs. 200/- in the first floor portion of the building No. 106/396 P Road Kanpur of which the plaintiffs were the owners and landlords. The defendant was liable to pay water tax at Rs. 12. 50 per month (calculated at the rate of 6/1/4 of the rental ). The defendants fell in arrears of rent and water tax from 1-2-1974. Consequently a registered notice of demand and termination of tenancy was served on the defendants on 10-9-1974. The defendant failed to pay the arrears of rent and water tax or to vacate the premises. The plaintiff was thus entitled to a decree for eviction of the defendant as well as for recovery of Rs. 1770. 50 as arrears of rent and water tax for the period 1-2-1974 to 10-10-74 and a further sum of Rs. 1870/-as accrued damages from 11-7-1974 till the date of the suit. The plaintiff was also entitled to pendente lite and future damages at the rate of Rs. 212. 50. The defendant contested the suit on the assertion that he was a tenant of a monthly rental of Rs. 200/- which included the water tax also. He had been paying a sum of Rs. 200/- regularly to the plaintiff. There was no agree ment to pay water tax separately. The defendant tendered the rent demanded through money orders to the plaintiffs which was unlawfully refused. The defendant, therefore, deposited the rent in the Court of Munsif in Misc. case No. 876 of 1974. The defendant also pleaded that the plaintiffs had stopped carrying out the annual repairs and white-washing from 1974. The defen dant, therefore, carried out the repairs himself after serving due notice and spent a sum of Rs. 400/- towards the repairs. In subsequent years also the defendant had been carrying out the repairs and white-washing in regard to which he was entitled to deduct a sum of Rs. 400/- per year. On the pleadings of the parties, the learned Ist Additional District Judge, exercising the powers of the small causes Court framed various issues arising out of the pleadings of the parties. On issue No. 2 which was whether the defendant was liable to pay water tax at the rate of Rs. 12. 50 per month. The Court below found that the sum of Rs. 200/- which the defendant was paying to the plaintiff was inclu sive of the water tax and the plea of the plaintiffs that the defendant was pay ing Rs. 12. 50 was water tax separately to the plaintiff was not true. Having regard to the finding, the Court below went into further question whether the defendant was not liable to pay water tax under Section 7 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. On a con sideration of the evidence on the record it held that even after 18th of July, 1972 (the date on which the aforesaid Act came into force), the payment of Rs. 200/- which the defendant was making to the plaintiffs was inclusive of the liability of the defendant under Section 7 of the said Act. The Court below further found that there was no statutory provision which authorised the plaintiff to claim water tax from the defendant at the rate of 6-1/4% at the monthly rental payable by the defendant. On the issue of default the lower appellate Court held in favour of the defendant-opposite-party and against the plaintiff-applicants. Its conclusion was that the defendant had been remitting the arrears by money order which the plaintiffs had been unjustifiably refusing and if those amounts were taken into consideration, there was any default. The net result was that the suit of the plaintiff-applicants was decreed only for recovery of Rs. 1400/- as arreas of rent while the rest of the reliefs claimed were refused. The Court below while passing the decree also directed that the amounts deposited in the Court by the defendant in miscellanous case No. 876 of 1974 shall be payable to the plaintiff towards the arrears of rent due from 1-2-1974. The first submission of the learned counsel for the applicant was that the finding of the Court below that the sum of Rs. 200/- which the defendant opposite party was paying to the plaintiffs was inclusive of the water tax is patently perverse and is not based on any evidence on the record. Having heard learned counsel for the parties, I am of the view that the above argument is well founded. While the conclusion of the lower appellate Court that the plaintiff failed to prove that the defendant was paying a sum of Rs. 12. 50 p. per month to the plaintiff as water tax separately is correct, its finding that the rental of Rs. 200/- was inclusive of the water tax even after 15-7-1972, the date on which the U. P. Act No. XIII of 1972 came into force, is not supported by any evidence on the record. I have perused the statement of the defendant's witnesses on this point and I do not find that there is even a bald assertion that the sum of Rs. 200/- was inclusive of the water tax even after 15-7-1972. The defendant's tenancy was continuing from 1971. He was paying Rs. 200/- per month from before 15-7- 1972. He does not even allege that there was any agreement between the parties subsequent to the coming into force of U. P. Act No. XIII of 1972, that this sum of Rs. 200/- would be inclusive of even the defendant's statutory liability under Section 7 of the aforesaid Act. The fact that according to the defendant, there was no separate agreement for payment of water tax did not and could not lead to the inference that there was an agreement between the parties that the sum of Rs. 200/- would be inclusive of the defendant's statutory liability. Again the further fact that even after 15-7-1972, the defendant had been paying Rs. 200/- as rent to the plaintiff and that the plaintiffs were issuing receipts therefore also could not justify the conclusion reached by the Court below. The receipts relied on by the Courts below, too, could not constitute legal evidence of the fact that the sum of Rs. 200/- was inclusive of the statutory liability of the defendant under Section 7. Thus the conclusion of the Court below that the rental of Rs. 200/- was inclusive of the defendant's liability of payment of water tax under Section 7 is not supported by any evidence on the record and is perverse. This, however, by itself does not entitle the plaintiff to a decree for ejectment. I agree with the Court below that the plaintiffs had no right to claim water tax at the rate of 6-1/4% of the monthly rental from the defendant as water tax. Counsel for the applicant was unable to point out any statutory provision authorising the plaintiff to charge or demand water tax from the defendant at the rate of 6-1/4% of the monthly rental. The paintiffs demanded water tax from the defendant under the notice dated 9-9-1974 on the basis of which the present suit has been filed at the same rate, namely, 6-1/4% of the monthly rental. The defendant was not liable under any statutory provision to pay water tax at this rate to the plaintiff. The notice of demand was, therefore, on the face of entirely wrong and illegal so far as the demand for water tax payable by the defendant was concerned. Under Section 7 of the U. P. Act No. XIII of 1972 the tenant has been made liable to pay to the landlord in addition to and as part of the rent water tax or "proportionate part thereof, if any, payable in respect of the building or part under his tenant. " The defendant was therefore, under this provision, liable to pay only proportionate water tax. In a case where the building under tenancy or the portion of the building under tenancy of tenant is not separately assessed the tenant would be liable to pay only a proportionate part of the water tax in the ratio which the assessed "annual value" of the entire building bears to the "annual value" of the portion under the tenancy of the tenant. The Court below has observed that the building in a portion of which the defendant is residing consists of a large number of units occupied by various tenants. The portion under tenancy of the defendant is not separately assessed to water tax. The plaintiff filed no papers or Municipal assessments to indicate the total amount of water tax which was payable in respect of the entire building or even of the portion under tenancy. I, however, find that the defendant had filed municipal assessment in respect of the quinquinnial assessments for the years 1973-78 and 1978-83. In regard to the quinquinnial assessments for the period 1973-78 a sum of Rs. 267. 50 P. was levied as water tax for the entire premises. The lower appellate Court has observed that there are ten other occupants in the building including the landlords. The water tax payable by the various tenants would, therefore, depend on the proportion which the annual value of their portions bears to the annual value of the entire building. The plaintiff led no evidence whatever to indicate the share of the water tax payable by the defendant. It is indisputable that the burden to prove this was on the plaintiff. The Court below was, therefore, right in stressing the failure of the plaintiff to discharge this burden. Assuming that in view of the language of Section 7 U. P. Act No. XIII of 1972 particularly the words "in addition to and as part of the rent", a default in respect of the water tax liability of a tenant could also be a ground for an eviction of tenant under Section 20 (2) (a) of the aforesaid Act, in my opinion, before a landlord could take advantage of such a default he must give a proper notice of demand informing the defendant of the precise amount which the latter is bound to pay as water tax in respect of the portion under his tenancy. Where there is no separate assessment of the portion in occupa tion of the tenant this responsibility becomes all the greater. For, it would not be easy for the defendant to work out his proportionate liability in respect of the water tax in such cases. The landlords must, in my opinion, in cases where the building under tenancy is not separately assessed, indicate truly and correctly the precise liability of the tenant disclosing the entire tax deter mined in respect of the building and the proportion which the annual value "of the entire building as determined by the Municipal authorities bears to the annual value of the portion under occupation of the tenant. These facts are within the special means of knowledge of the landlord and consequently he must disclose the same truly and correctly to the tenant before he could invoke the penal provisions of Section 20 (2) (a) of the aforesaid Act. In the present case the plaintiffs did not do so. On the contrary, they demanded water tax at the rate of 6/1/4% of the monthly rental payable by the defendant. This was an entirely misconceived demand. As the plaintiff did not disclose the relevant particulars in the notice of demand dated 9-9-1974, the said notice cannot constitute a valid notice in regard to the claim for arrears of water tax. There was, hence no question of default in respect thereof. Another important aspect to be noted is that water tax cannot be said to be 'payable' within the meaning of Section 7 of the U. P. Act No. XIII of 1972 unless the water tax has become due. Until the water tax becomes due under the relevant local law, the same cannot be said to be payable under Section 7 of the U. P. Act No. XII of 1972. There is nothing on the record to indicate that in respect of the period from 1st of February, 1974 to 10th of October, 1974 water tax had become due on the date of the notice of demand and, therefore, payable. The water tax is payable annually and until it becomes due it cannot be said to be payable by the tenant even under Section 7. For all these reasons, I hold that the plaintiff has failed to prove that the defendant committed a default in respect of the water tax so as to entitle the plaintiff to a decree for eviction. In regard to the rental of Rs. 200/-payable as rent for the house, the finding of the lower appellate Court is that the defendant was not in default in respect thereof. The said finding of fact was not challenged before me. Thus in either view of the matter, the decree passed by the Courts below dismissing the suit except to the extent mentioned in the operative portion of the decree under revision cannot be said to be contrary to law even on the premise that the sum of Rs. 200/- payable by the defendant as rent to the plaintiffs was not inclusive of the liability of water tax under Section 7. In the result, the revision fails and is dismissed. There will, however, be no orders as to costs. .