NAVEEN KUMAR MISRA Vs. BHUVAN CHAND PANDEY

JUDGEMENT

(1.) SHIV Charan Sharma, J. The present writ petition has been instituted under Article 226 of the Constitution of India for issuing a writ order or direction in the nature of certiorari for quashing the order dated 17th of May, 2000 passed by the then VIIth Additional District Judge, Lucknow in SCC Revision No. 112/998, Naveen Kumar Mishra & Anr. v. Bhuwan Chand Pandey, Petitioners, Naveen Kumar Misra & Anr. , instituted a SCC Suit No. 193/1986, Naveen Kumar Misra v. Bhuvan Chand Pandey, for ejectment of the respondents from the property in dispute, recovery of arrears of rent and damages for the use and occupation. The said suit was decreed by the J. S. C. C. , Lucknow vide the judgment and order dated 5th of May, 1998. Aggrieved from this judgment and decree, the respondents-defendants instituted a SCC Revision No. 112/1998 and this SCC revision was allowed by the then VIIth Additional District Judge, Lucknow vide the judgment and order dated 17th of May, 2000. The judgment and order passed by the J. S. C. C. , dated 5 of May, 1998 was set aside. Against this order, the present writ petition has been instituted. The facts of the case in brief are as follows :

(2.) THE plaintiffs-petitioners alleged in the plaint that they are the owners/landlords of the house No. 499/87 situated at Justice Gokaran Nath Misra Road, Husanganj, Lucknow. THEy have described in the plaint that the defendant is the tenant of the house in suit @ Rs. 50/- per month excluding the water tax after the enforcement of the U. P. Act 13 of 1972. Previously, Sri Gaya Sahai Miara was the owner and landlord of the house and he inducted the defendant as tenant of the property at the rate of Rs. 40/- per month. That Gaya Sahai Misra executed a will dated 4th of June, 1965 in favour of the plaintiffs in respect of the entire properties including the house in dispute. That the plaintiffs inherited the property in dispute by virtue of the will dated 4th of June, 1965. A legal notice was served on 14th of April, 1967 for demand of the rent through their father. THE notice was replied on dated 6th of May, 1967 and in reply of the notice, it was alleged that he had also received a notice on behalf of Major Udai Prakush Misra and Shri Om Prakash Mishra, the real uncles of the plaintiffs and on the basis of these notice, the defendant was in the State of doubt about the actual owner of the house. It has also stipulated in the reply that he will deposit the rent in the Court under Section 7-C (2) of the U. P. Act 3 of 1947. Inspite of this reply dated 6th of May, 1967, no rent was deposited in any Court till the year 1974 and due to this reason, the defendant committed default in making the payment of the rent. THEre was a dispute regarding the execution of the will in between the plaintiffs and Major Udai Prakash Misra and Om Prakash Misra and there had been prolong litigation on this matter. Ultimately in M. C. A. No. 128/1982, it was decided that the plaintiffs are the owners/landlords of the property in dispute. In this appeal, the judgment dated 5th of May, 1982 of Munsif South passed in Misc. Case No. 108/1967, Naveen Kumar Misra & Anr. v. Property of late Shri Gayati Sahai Misra, was confirmed. THE judgment and order passed in the M. C. A. was not challenged in any Court in accordance of the knowledge of the plaintiffs. After finalization of the matter again, the plaintiffs demanded the entire arrears of rent from the defendant but inspite of serving a demand notice, the defendant neither paid the arrears of rent nor paid the rent of the current period. That on dated 24th of July, 1985, another notice was sent under Section 106 of the Transfer of Property Act. By this notice, arrears of rent was demanded and the tenancy was terminated but the defendant willfully avoided the service of this notice and thereafter another notice dated 20th of August, 1985 was sent under Section 106 of the Transfer of Property Act and even then the notice sent on official address was refused by the defendant. In order to avoid the legal complication, another notice was sent on dated 6th of November, 1985 through the department of the defendant and this notice was served on dated 7th of November, 1985. Within the period of notice, neither the defendant paid the rent nor vacated the property in dispute. THE rent for the period from 1st of March, 1967 to 14th of July, 1972 was demanded @ Rs. 40/- p. m. and for the period from 15th of July, 1972 to 31st of July, 1985 @ Rs. 50/- and the water tax. Another notice was served on the defendant on dated 13th of October, 1972 for enhancement of the rent @ 25% i. e. from Rs. 40/- per month to Rs. 50/- per month. Hence, the defendant by this notice was required to pay all these rent. THE reply on wrong fact was given of the notice and even after the service of notice, runt was not paid to the plaintiffs/landlords and it was averred in the reply that the defendant had deposited the rent in the Court and shall continue to deposit thereafter. But no information was given to deposit this rent to the plaintiffs. THE copy of the judgment and order of the Misc. Case and M. C. A. were also sent on demand. That a sum of Rs. 10,817. 50/- is due as arrears of rent and damages are also due @ Rs. 50/- p. m. As the defendants failed to vacate the property hence, it was necessitated to file a suit.

(3.) THAT in view of the averments of the pleadings of the parties and the arguments advanced by the learned Counsel for the parties, I am of the opinion that it is not a controversial point now that the plaintiffs-petitioners are not the owners/landlords of the property in dispute. It is an undisputed fact that Shri Gaya Sahai Misra was the landlord of the property in dispute and he died on 8th of March, 1967 and on the basis of the will dated 4th of June, 1965 executed by Sri Gaya Sahai Misra the plaintiffs claimed to be the owner of the property in dispute. It is also an undisputed fact that Major Udai Prakash Misra and Shri Om Prakash Misra were the uncles of the petitioners and the matter of will was contested by Major Udai Prakash Misra and Shri Om Prakash Misra in the civil Court, hence, the plaintiffs instituted a Misc. Case No. 108/67, Naveen Kumar Misra & Ors. v. Property of Late Gaya Sahai Misra. Annexure No. 6 is the copy of the order passed in Misc. Case No. 108/1967. This application filed on behalf of the petitioners under Section 372 of the Indian Succession Act was allowed and a succession certificate was issued in favour of the petitioners regarding the property of Gaya Sahai Misra including the property in dispute. Aggrieved from this order of the Misc. Case, Om Prakash Misra and another challenged the order before the District Judge, Lucknow in M. C. A. No. 129/1982 and this appeal was decided vide judgment and order dated 30th of November, 1984 by the then Vth Additional District Judge, Lucknow and the appeal was dismissed and the order passed in Misc. Case No. 108/1967 was upheld. The contention of the petitioners is that the after the judgment of the M. C. A. No. 129/1982, the matter of ownership of the property in dispute stands finalized and after the judgment of the appeal, notice was served to the respondent to pay the rent but the rent was not paid on the pretext that Sri Om Prakash Misra informed the respondent that the order passed in this appeal has been challenged in the writ petition before the High Court and thereafter a reply was given of the notice that till finalization of the matter, rent cannot be paid to the petitioners. Although, petitioners' Counsel argued that no stay order was passed in the writ petition by the High Court and the respondents were in connivance with Sri Om Prakash Misra and procured the letter of Sri Om Prakash Misra not to pay the rent till the finalization of the matter by the High Court and this argument of the petitioners' Counsel has not been disputed by the respondent's Counsel. Hence, it may be presumed that the writ petition was filed by Sri Om Prakash Misra in the High Court but there was no stay order for staying the operation of the judgment and order passed in the appeal. The tenant-respondent was not justified in not paying the rent to the petitioners. In these circumstances, I am of the opinion that there is no dispute regarding the relationship of landlord and tenant in between the parties. Nothing has been argued by the Counsel for respondent regarding the validity of notice dated 6th of November, 1985. Although, it has been alleged that the proper reply of the notice dated 6th of November, 1985 was given on dated 29th November, 1985. Even the copies of the judgments and orders passed in Misc. Case and appeal were also sent but no effort was made to pay the rent. Counsel for the respondent argued that alter the subsequent notice, the earlier notice dated 6th of November, 1985 stands waived. But, I disagree with this contention of the Counsel for respondents. The subsequent notice and reply were in continuation of the notice dated 6th of November, 1985 and that by no stretch of reasoning, it can be said that by the subsequent development, notice has been waived. Under these circumstances, it is not necessary to consider the validity of the notice dated 6th of November, 1965 and in my opinion, the notice dated 6th of November, 1985 is perfectly valid.