HABIB AHMAD Vs. VTH ADDITIONAL DISTRICT JUDGE MUZAFFARNAGAR

JUDGEMENT

(1.) -This is tenants' writ petition. Respondent No. 3, who was the landlord of the building in dispute till 1983 filed a suit for ejectment against petitioners' father (since deceased and survived by the petitioners) before J.S.C.C., Muzaffarnagar being S.C.C. Suit No. 142 of 1979, on the ground of default and material alteration. According to the plaint allegation before filing suit, notice terminating tenancy and demanding rent was sent by respondent No. 3 on 16.10.1979, which was refused to be accepted by the tenant on 19.10.1979. In order to prove service of notice through refusal, postman was examined by the plaintiff. The tenant in his oral testimony denied refusing to accept the notice. During the pendency of the suit, respondent No. 3 transferred the property in dispute to respondent Nos. 4 and 5, through registered sale deed dated 19.4.1983. Through the sale deed, previous unpaid rent was not transferred. After purchasing the property, respondent Nos. 4 and 5 got themselves impleaded in the suit as plaintiff Nos. 2 and 3. The arrears of rent were admitted by the defendant tenant however he claimed the benefit of Section 20 (4) of U. P. Act No. 13 of 1972, by depositing the requisite amount under the said sub-section on 20.2.1980. The trial court framed three issues, one was regarding default, other regarding material alteration and the third was regarding right of plaintiff Nos. 2 and 3/respondent Nos. 4 and 5 to eject the tenant in the suit filed by plaintiff No. 1/respondent No. 3. The trial court decided the question of material alteration in favour of the tenant. The other two issues were decided in favour of the landlord. Regarding benefit of Section 20 (4) of the Act, the trial court held that the first date of hearing being 2.2.1980, deposit of rent on 20.2.1980 was beyond the scope of Section 20 (4) of the Act. It is unfortunate that neither any issue regarding service of notice was framed by the trial court nor any finding was given even though while reciting the allegation of the written statement, the trial court observed that defendant had denied receipt of any notice and its refusal. The trial court through judgment and decree dated 1.2.1985 decreed the suit for ejectment and arrears of rent. Tenant, petitioner's father filed revision against the aforesaid judgment and decree being S.C.C. Revision No. 16 of 1985. In the revision respondent No. 3 entered into compromise with the tenant and filed a receipt dated 16.8.1990 (Annexure-12 to the writ petition) acknowledging the receipt of entire arrears of rent and cost of the suit etc. The revisional court refused to decide/allow the revision in terms of compromise as respondent Nos. 4 and 5, the subsequent purchasers were not parties to the said compromise. The revisional court discussed the question of refusal of notice and held that even though the trial court had not openly discussed this question however, mere denial of oath by the tenant was not sufficient to rebut the evidence of the postman. Ultimately the revisional court (Vth Additional District Judge, Muzaffarnagar) by judgment and order dated 22.1.1991 dismissed the revision, hence this writ petition.

(2.) A liability for ejectment incurred by the tenant including liability of ejectment on termination of tenancy through notice continues to remain in existence even after transfer of property by lessor to third person and the subsequent purchaser is entitled to maintain a suit for eviction on the basis of the said liability by virtue of Section 109 of T. P. Act. In this regard reference may be made to the authority of Supreme Court reported in AIR 1991 SC 14.

(3.) BOTH the Courts below have presumed that the date of first hearing was 2.2.1980, hence, deposit made on 20.2.1980 was beyond time. However, the oral statements of witnesses were recorded on 15.1.1985 (Annexures 7, 8 and 9 to the writ petition). It is also not clear as to on what date issues were framed. Date of first hearing is the date on which the Court for the first time applies its mind as held by the Supreme Court in the following authorities : (1) AIR 1993 SC 2525 ; (2) (1995) 3 SCC 407 ; (3) AIR 1996 SC 3688 ; (4) AIR 2002 SC 2520.