UMARDARAJ Vs. FURKAN AHMAD

JUDGEMENT

(1.) This is a writ petition by the tenant against the judgment and order of the revisional Court dated 23rd September, 2004 whereby the revisional Court has allowed the revision filed by the landlord who was aggrieved by the order of the trial Court whereby the suit filed by the plaintiff-landlord was dismissed. The revisional Court by the order impugned has set aside the order passed by the trial Court and decreed the suit filed by the revisionist-landlord, respondent in this writ petition and the relief regarding recovery of arrears of rent and damages for occupation for the period before institution of the suit has been refused. It is also held by the revisional Court that the plaintiff would be entitled to recover the amount of damages for occupation from the petitioner-tenant for the period of institution of the suit till the decision of the suit property at the rate of Rs. 150/- per month.

(2.) The plaintiff-landlord filed a suit for ejectment and arrears of rent against the petitioner-tenant on the allegation that the petitioner is the tenant of the accommodation in question on a rent of Rs. 400/- per month and that his tenancy starts with 26th of the calender month and ends on 25th of the succeeding month. The defendant-tenant is further liable to pay water tax at the rate of 12% and house tax at the rate of 5-12%. The provisions of U.P. Act No. 13 of 1972 (in short the Act) are not applicable to the accommodation in question. The defendant had not paid rent since the month of June 1992. The tenancy of the petitioner-tenant had already been determined by the notice dated 14th April 1995 and in spite of notice being received the tenant had neither paid arrears of rent nor vacated the accommodation in question. The aforesaid claim of the landlord-respondent was denied by the petitioner-tenant wherein he has only admitted that the rent of the accommodation in question was Rs. 150/- per month plus tax and not Rs. 400/- as alleged by the landlord. It is wholly incorrect that he agreed Rs. 400/- as rent plus taxes. It is also denied by the tenant that provisions of U.P. Act No. 13 of 1972 are not applicable and other pleas.

(3.) On the pleadings of the parties and the evidence on the record the trial Court arrived at a conclusion that provisions of U.P. Act No. 13 of 1972 are applicable and that the tenant had deposited rent upto 24th November, 1995 under Section 30 of the Act in Misc. Case No. 20 of 1995 in the Court of Munisf, Najeebabad, therefore, the statement that there is any arrears of rent is wholly incorrect and is denied, On the contrary it is alleged that since the plaintiff-landlord is demanding an arbitrary enhancement of rent that is why the suit has been filed which is based on incorrect facts. The trial Court by its order dated 1st March 2002 dismissed the suit filed by the plaintiff landlord. The landlord thereafter filed SCC Revision No. 22 of 2002. The revisional Court has found that the findings arrived at by the trial Court regarding the applicability of the provisions of U.P. Act No. 13 of 1972 is based on non-consideration of material evidence and also consideration of evidence which was not admissible, namely, the municipal assessment relating to the year 1979 to 1986 has been relied upon that the constitution of the building with a shop in dispute situated in the year 1979. On the issue of rent and default in payment of rent the trial Court did not rely the rent deed Ga-42 filed by the plaintiff in support of his case rather it has relied on photostat copy of rent deed filed by the defendant-tenant and as such he believed the case of the tenant that the landlord received the sum of Rs. 3,000/- as advance payment of the rent from the tenant and further that Rs. 100/- per month was agreed to be adjusted out of the aforesaid advance of Rs. 3,000/- per month and that Rs. 3,000/- having been adjusted towards the rent was enhanced to Rs. 150/- per month which the tenant continued to pay to the plaintiff. The trial Court further found that the case of the plaintiff was not proved by the plaintiff, therefore, suit was dismissed as the tenant is protected by the provisions of Section 20 (2) of the Act. The landlord filed a revision before the revisional Court. The revisional Court has considered the findings recorded by the trial Court and found that the trial Court rejected the admissible evidence and thereafter arrived at a conclusion which is summed up in Para 10 of the judgment as under: