RAFIUDDIN Vs. ADDITIONAL DISTRICT JUDGE II GORAKHPUR

JUDGEMENT

(1.) S. U. Khan, J. This is tenant's writ petition arising out of suit for eviction on the ground of default. The landlord asserted that rate of rent was Rs. 40/- per month while according to the tenant it was Rs. 15/- per month. The suit was numbered as S. C. C. Suit No. 29 of 1981. The plaintiff had purchased the property on 30-7-1980 and defendant was tenant thereof since before its purchase by the landlord. The tenant deposited certain amounts and claimed benefit of Section 20 (4) of U. P. Act No. 13 of 1972. Initially the suit was dismissed on 11-4-1984 by J. S. C. C. , Gorakhpur holding the rate of rent to be Rs. 15/- per month. Against the said judgment revision was filed by the plaintiff/petitioner. The Revisional Court remanded the matter to the trial Court to decide the issue of striking off the defence. It is doubtful whether after decision of suit on merit, it is open to Revisional Court to remand the matter just for consideration of the plea of striking off the defence. Unfortunately judgment of the Revisional Court remanding the matter has not been annexed along with the writ petition. However from perusal of order dated 4-2- 1987 and judgment dated 22-7-1987 passed by J. S. C. C. after remand, it transpires that the Revisional Court directed the trial Court to try the additional issue of benefit of Section 20 (4) of the Act to the tenant also. After remand tenant petitioner filed application for condonation of delay in making the deposit. By order dated 4-2-1987, J. S. C. C. rejected the said application holding that the rent from September 1984 was deposited after few months from the date on which it ought to have been deposited as per requirement of Order XV, Rule 5 C. P. C. The earlier judgment of the J. S. C. C. (Whereby suit was dismissed) was given on 11-4-1984 hence, the J. S. C. C. should have decided as to whether there was any delay or default in depositing the monthly rent till that date. The same has not been done. The delay in deposit has been found from September 1984 onwards which was not relevant. In any case application for condonation of delay in making the deposit was rejected on the ground that such application/representation could be made only within 10 days from the due date of deposit. As the Revisional Court had remanded the matter for consideration of the question of striking off the defence hence, tenant could apply for condonation of delay in making the deposit. In any view of the matter, no delay in deposit of rent has been found till the first date of hearing when the tenant made deposit under Section 20 (4) of the Act. Hence, even if his defence was rightly struck off for subsequent delay in deposit of monthly rent, the benefit of Section 20 (4) of the Act, which accrued to him before the accrual of penalty of striking off the defence could not be denied to him. In the order dated 4-2-1987 passed by J. S. C. C. (Annexure 2 to the writ petition) it is mentioned at the end that according to the direction of the Revisional Court the additional issue of benefit of Section 20 (4) to the tenant was being framed as issue No. 6. Both the Courts below even after striking off the defence have taken into consideration the evidence of tenant/petitioner also. After remand, the trial Court held that rate of rent was Rs. 40/- and not Rs. 15/ -. Landlord had admitted that he was not issuing any receipt. The trial Court held that as defence of the tenant had been struck off, hence tenant could not claim benefit of Section 20 (4) of U. P. Act No. 13 of 1972 and even otherwise the amount deposited by the tenant on the first date of hearing was short of the required amount calculated at the rate of rent of Rs. 40/- per month. The trial Court dismissed the suit only on the ground that it found the notice to be invalid, as possession had been asked for within 30 days.

(2.) IN the sale deed dated 30-7-1980 through which plaintiff/respondents had purchased the property, it was mentioned that property was let out at the rent of Rs. 16/- per month. Petitioner was tenant in part of the property only. IN the sale deed through which previous landlord purchased the property it was mentioned that property was let out at Rs. 15/- per month. The trial Court has held that the said recital in the sale deed can give no benefit to the defendant, as rate of rent in both the sale deeds was mentioned for the purposes of stamp duty and registration fees which are normally not properly described in the sale deeds by the purchasers and the purchasers show lesser than actual rent in the sale deeds in order to avoid proper stamp duty and registration fees. IN my opinion this view of the trial Court cannot be approved. Such a view amounts to giving premium to an illegal act. The recital of rent in the sale deed is the best evidence and is admission of the plaintiff, hence it has to be taken as correct. On the statement of the plaintiff that lesser rent was shown in the sale deed for avoiding the stamp duty and registration fees, the Court should have reprimanded the plaintiff. The Court instead of doing that rather appreciated the plaintiff for his ingenious design to defraud the exchequer.

(3.) ACCORDINGLY writ petition is allowed. Judgment and decreed passed by Revisional Court (IV A. D. J. Gorakhpur) dated 12-4-1990 in Civil Revision No. 244 of 1997 (sic 1987) is set aside and judgment and decree dated 22-7-1987 passed by J. S. C. C. , Gorakhpur in S. C. C. Suit No. 29 of 1981 is upheld (even though for different reasons) and is restored. Petition allowed. .