RAJA RAM Vs. XTH ADDITIONAL DISTRICT JUDGE KANPUR

JUDGEMENT

(1.) THIS is landlords' writ petition. Suit filed by landlord petitioner against tenant respondent No. 3 on the ground of default was decreed by the trial court however the revisional court allowed the revision, reversed the judgment and decree passed by the trial court (J.S.C.C.) and dismissed the suit of the landlord. The only question involved in this writ petition is whether tenant was liable to ejectment on the ground of default or not. Petitioner landlord (since deceased and survived by legal representatives) filed S.C.C. Suit No. 23 of 1989 before J.S.C.C., Kanpur Nagar against tenant respondent No. 3. According to the plaint allegation rate of rent was Rs. 200 per month apart from taxes, that defendant tenant was defaulter with effect from 1.12.1987, that till 30.11.1988 amount of 12 month's rent amounting to Rs. 2,400 alongwith water tax with effect from 1.7.1978 was due against the tenant. In the notice and the plaint varying rates of water tax were mentioned, i.e., 7.5% till March, 1981, 15% till September, 1985, and 18% since October, 1985. According to plaint rent and tax had not been paid inspite of notice dated 15/19.12.1988. Landlord also admitted in his oral statement that after notice tenant sent some rent through money order, which was short of the demand hence it was not accepted. The tenant pleaded that prior to notice, after refusal of money order by landlord, he deposited the rent from 1.12.1987 to 31.5.1988 and water tax under Section 30 of the Act. The trial court/IInd Additional J.S.C.C., Kanpur Nagar decreed the suit for ejectment and recovery of rent, etc. through Judgment and decree dated 23.5.1992. The trial court held that the amount deposited under Section 30 after receipt of notice was not valid and as no money order after notice was refused by landlord hence the rent deposited under Section 30 after notice could not be taken into consideration. Tenant respondent No. 3 filed a revision against the said judgment and decree being S.C.C. Revision No. 103 of 1992. The said revision was allowed by Xth Additional District Judge, Kanpur Nagar through judgment and order dated 19.11.1996. By judgment of the revisional court suit of the petitioner was dismissed. The revisional court held that the amount had rightly been deposited under Section 30 hence tenant was not defaulter. Regarding water tax the revisional court held that even if there was default in payment of water tax tenant could not be ejected on the basis of the same. Thereafter revisional court also held that in any case defendant tenant had also deposited the water tax.

(2.) THE trial court impliedly believed the version of the tenant that prior to notice rent sent by him through money order to the landlord was refused hence he rightly deposited the rent from 1.12.1987 to 31.5.1988 under Section 30 of the Act. However, the trial court held that the subsequent deposit of rent from 1.6.1988 to 31.1.1989 under Section 30 on 10.3.1989 was not valid as notice of landlord dated 15.12.1988 had admittedly been served upon the tenant on 19:12.1988. The assertion of the tenant that after receiving the notice on 19.12.1988 he sent M.O. of the rent from June, 1988 to December, 1989 on 13.1.1989 which was refused by the landlord was not considered by the trial court/J.S.C.C. as it held the same to be beyond the pleading/case of the tenant (Abhivachan ke pare). The precise sentence of the Judgment of the trial court translated in English is as follows :

(3.) THE lower revisional court placing reliance upon an authority of this Court in 1996 (2) ARC 400 has held that tenant cannot be held to be defaulter even if he has not paid the amount of water tax. The view of the lower revisional court is not correct. In the aforesaid authority of this Court in 1996 (2) ARC 400, the cases had been decided on the ground that at the time of notice tenant was not in arrears of four months rent. The last sentence of para 8 of the aforesaid authority is to be read in that context. Even otherwise in the following authorities it has been held that water tax is a part of the rent.