SHAILESH KUMAR Vs. MAHENDRA PRATAP AGARWAL

JUDGEMENT

(1.) HEARD learned counsel for both the parties. This revision under Section 25, Provincial Small Causes Courts Act is directed against judgment and decree dated 03.10.2006 passed by J.S.C.C./ A.D.J./ Special Judge, S.C. & S.T. Act, Bahraich in S.C.C. Suit No.4 of 1997 dismissing the suit of the landlords applicants, which had been filed by them against tenants respondents for their eviction from the tenanted shop in dispute and for recovery of arrears of rent. Tenants respondents had deposited certain amounts in the suit. Through the impugned judgment, plaintiffs were permitted to withdraw the said amount. Since before 1986, original defendant Smt. Savitri Agarwal (who died during pendnecy of the suit before the court below and was substituted by her legal representatives who are the respondents in this revision) was tenant of an old dilapidated shop on behalf of plaintiffs applicants. Landlords instituted Case No.21 of 1986 against her under Section 21(1)(b) of U.P. Act No.13 of 1972 for her eviction on the ground that the then tenanted shop was in dilapidated condition. The case was decided on the basis of compromise on 07.10.1986. It was agreed that tenant would vacate the shop, landlords would reconstruct the same and thereafter the newly constructed shop would again be given on lease to the same tenant at the old rent of Rs.200/- per month. Pursuant thereto, the old shop was vacated by the tenant, new shop was constructed by the landlord and was given to the same tenant Smt. Savitri Devi on rent of Rs.200/- per month.

(2.) SMT . Savitri Devi filed an allotment application also under Section 24(2) of the Act on 01.01.1987 for allotment of the newly constructed shop possession of which had already been given to her before R.C. and E.O./ City Magistrate, Baharich initial number of which was 69. Lastly it was numbered as Case No.7 of 1996, Smt. Savitri Agarwal Vs. Radhey Shyam; 2008) 15 SCC 133. The said case was decided on 09.02.1996. The R.C. and E.O. allotted the shop to her at the rent of Rs.300/- per month. It was further directed that the balance rent (Rs.100/- per month, i.e. the difference between Rs.300/- and Rs.200/-) w.e.f. 01.01.1987 would be paid by the tenant within one month otherwise allotment order would automatically come to an end and the shop would be treated to be not covered by U.P. Act No.13 of 1972. The reason for this forfeiture clause given in the body of the judgment was that allotment application had been filed after about two months even though the period was only one month as provided by Rule 20 of the Rules framed under the Act (one month from the date on which the construction of the building sought to be allotted is complete). The rate of rent was fixed to be Rs.300/- per month on the ground that cost of new construction was Rs.30,000/-. It was further observed that even though in the compromise it had been agreed that rate of rent would be Rs.200/- per month, however as application was filed after more than one month, hence Rs.300/- per month rent was being fixed.

(3.) IT is rather strange that in the suit giving rise to the instant revision, rate of rent was claimed to be Rs.500/- per month. It was also pleaded that as pursuant to the order dated 09.02.1996 passed by the R.C. and E.O., balance rent had not been paid within one month, hence provisions of U.P. Act No.13 of 1972 were not applicable upon the building in dispute. In para-10 of the plaint, it was stated that as on 01.01.1987, the market rate of the shop in dispute was not less than Rs.500/- per month, hence plaintiffs were entitled to recover the rent from the tenant at the rate of Rs.500/- per month w.e.f. 01.01.1987. Under no circumstances rent of Rs.500/- per month could be demanded by the landlords w.e.f. 01.01.1987. However, the tenant in his application dated 18.04.1998 stated that he wanted to deposit the admitted rent of Rs.500/- per month.