NAZIR KHAN Vs. SMT. MITHILA DEVI

JUDGEMENT

(1.) THIS revision has been preferred by the defendant -appellant against the judgment and order dated 17.11.86 passed in S.C.C. Suit No. 6 of 1986 of the Court of Ist Additional District and Sessions Judge. The plaintiff was the owner of shop No. 104, Purani Pasrath, Jhansi and the defendant was the tenant in respect of the same. It has been pleaded that there was arrears of rent from 10.7.85. The water tax of the premises is Rs. 150 per year. It has been pleaded that since the year 1976 -77 to the year 1986 -87, the defendant did not pay the water tax in respect of the disputed shop. It is submitted that the plaintiff has paid Rs. 1050 out of the demand of water tax but the tenant inspire of the demand did not pay the arrears of rent and water tax though notice of demand was served upon him. Hence the suit, for eviction of the defendant on the ground of defaulter, was filed. The defendant has admitted the rent as Rs. 175 per month. It was pleaded by the defendant that he was not liable to any water tax and that he was not in arrears as such he challenged the legality and validity of the notice terminating his tenancy. Inter alia it has been contended that the instant suit is nothing but a device to create pressure upon the defendant to enhance the rent as desired by the plaintiff from time to time. It has been further contended by the defendant that he wanted Rs. 700 in cash which was refused and later on he sent the same through money order which was also refused by the plaintiff and where after the defendant deposited the rent in Misc. Case No. 322/85, Nazir Khan v. Mithla Devi in the Court.

(2.) THE parties had adduced evidence. The whole controversy came to a very narrow compass; whether rent was inclusive of water tax and the responsibility was upon the defendant to pay the same along with rent. At the very outset it is to be taken into account that there was no written agreement relating to tenancy. Now it has been contended by the learned Counsel for the defendant before me that water tax was not inclusive of the rent as such the defendant cannot be branded as a defaulter in the eye of law though he has not legal liability to pay the water tax and there cannot be a decree for default as claimed by the plaintiff and asserted by the plaintiff. It has been contended before me that water tax is to be paid by the defendant under Section 7 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No. XIII of 1972). It has been contended before me that from the evidences adduced by the parties, it could not be established that water tax also formed part of the rent. Learned Counsel drew my attention towards the notice Annexure "2" of the application. In support of his contention, learned Counsel for the revisionist referred the following rulings as reported in, 1984 (1) ARC 177, he particularly drew my attention to paragraph 4 of that ruling. In that ruling the fact was like that, that there was an agreement between the parties by which the defendant was liable to pay Rs. 2 per month as water tax and it was held by the Hon'ble Court in that revision that whether said water tax was inclusive of the rent was mixed question of law and fact and it was said that liability to pay water tax as a part of the rent or not is a question to be adjudged depending on the intention of the parties as may be reflected from the agreement for the tenancy. Considering evidences as gone into before the trial Court, Hon'ble Judge was pleased to dismiss that revision.

(3.) LEARNED Counsel for the respondent in reply contended that in the present case there was no agreement between the parties and there was no pleadings or there was any oral evidence adduced by the parties that there was any oral evidence regarding payment of water tax. As there was evidence to that effect, so presumption of law will automatically follow as arose out of Section 7 of the said Act.