JAGDISH PRASAD AGARWAL Vs. SUSHIL KUMAR RAITANI

JUDGEMENT

(1.) HEARD learned counsel for both the parties. This is plaintiff landlord's civil revision under Section 25 Provincial Small causes Court Act directed against judgment and decree dated 18.12.2004 passed by J.S.C.C./A.D.J. Gonda in S.C.C. Suit No.1 of 2001, Jagdish Prashad Vs. Sushil Kumar through which the suit was dismissed. According to the plaint allegation in brief defendant respondent was tenant of plaintiff landlord, tenancy was created through agreement dated 1.7.1999, rate of rent was Rs.2310/- per month excluding water tax and defendant was paying water tax to the plaintiffs separately that rent w.e.f. 1.8.2008 had not been paid and water tax had not been paid since 1.7.1999 that notice of termination of tenancy and demand of rent was sent on 1.3.2001 demanding rent of Rs.16170/- and water tax of Rs.4620/-. It was also mentioned in the plaint that after giving the notice to the tenant, landlord came to know that tenant had also sublet the shop in dispute to Mahesh Kumar and Sanjay. Relief claimed in the plaint was for eviction and recovery of arrears of rent.

(2.) THE tenant pleaded that subsequently the landlord had also given a room in the form of a goodown on rent to him @ of Rs.750 per month, that rent of both the buildings from 1.8.2001 to 31.10.2001 was sent through money order by the tenant which was refused by the plaintiff landlord. It was admitted by the tenant that rent of the shop in dispute was Rs.2310/- per month. It was also asserted by the tenant that he deposited the rent in misc. case no.146 of 2000 under Section 30 of U.P. Act no.13 of 1972. Tenant further asserted that he was also paying/depositing Rs.200/- per month as water tax. The only effective issue framed by the trial court was as to whether defendant was defaulter. The trial court reproduced the entire agreement which had been executed in between parties on 1.7.1999. In clause 4 of the agreement it was mentioned that the period of tenancy would be 11 months, however, even thereafter with the consent of the landlord tenancy would be continued and in that contingency after every three years rent would be increased by 10%. Clauses 7 and 8 are relevant for the purpose of decision of the case. According to clause 7 any of the parties whenever he so wished could terminate the tenancy by giving one month's prior notice. Clause 8 stated that second party i.e. the tenant would also be liable to eviction in case of four months default in payment of rent. In the agreement it was mentioned that shop in dispute was constructed in 1995-96. Even otherwise agreed rent was more than Rs.2000/- per month hence U.P. Act no.13 of 1972 was not applicable to the building in dispute. This point has been decided by the court below in favour of the plaintiff. The court below has also held the agreement to be admissible.

(3.) FROM the above facts the court below held that the intention of the tenant was to pay the rent. Intention to pay rent is one thing and actual payment of rent is quite another. The tenant deposited the rent in the suit giving rise to the instant revision for which tender was submitted on 15.9.2001 and thereafter it was deposited. The court below held that the deposit was before the first date of hearing hence defence of the tenant could not be struck off under Order 15 Rule 5 C.P.C. Ultimately, the court below held that tenant had not committed default in payment of rent.