SAVITRI DEVI Vs. DISTRICT JUDGE FAIZABAD

JUDGEMENT

(1.) THIS writ petition has been directed by the landlord Smt. Savitri Devi alleging that the courts below committed an error in not striking out the defence of the tenant, under Order 15 Rule 5 Code of Civil Procedure.

(2.) THE brief submission of the learned Counsel is that the liability to pay taxes is included in the rent payable with respect to building in occupation. Therefore, if merely rent has been paid and taxes have not, been paid the same principle will apply and his defence is label to be struck of by virtue of Order 15 Rule 5. The argument is wholly misconcieved. In the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) there are two separate provisions in Chapter 2 of the Act.

(3.) LEARNED Counsel in order to satisfy that the defence of the tenant was liable to be struck down has to show that, the liability of tax was part of the agreed rent payable by the tenant. The authority, cited by the learned Counsel only highlights the provision contained in Section 7. The bald reading of Section 7 clearly indicates that the payment of liability of taxes rests on the tenant unless there is contract to the contrary. The mode of payment also has been mentioned but I do not subscribe to the submission of the learned Counsel for the Petitioner that in all cases it constitutes part of the agreed rent. It will have to be established from the averments that after the incorporation of the provision monthly rent was increased and that increased rent was being paid monthly by the tenant. If the tenant was making separate payment of taxes yearly, six monthly or quarterly then the payment of water tax and 25% of the enhanced house tax would not constitute rent but would be an additional liability coupled with the rent determined under Section 5 of the Act. The rent for the use and occupation, therefore, would be the agreed rent payable by the tenant although the liability for payment of additional amount for use and occupation of the building would also be on the tenant, that liability cannot be clubbed with the agreed rent. The law laid down in Major Baldeo Krishna Bhandari v. Vlth Additional District Judge, Lucknow, 1982 (1) ARC 121 is thus distinguishable on facts. In that case the question involved was payment of agreed rent which the tenant was liable to deposit.