NEW INDIA ASSURANCE CO Vs. GHANSHYAM DAS

JUDGEMENT

(1.) THIS revision application under S. 25 of the Provincial Small Cause Courts Act is directed against the judgment and decree D/- 8-1-1997 recorded by the District Judge. Mathura, exercising small causes powers in SCC Suit No. 6 of 1994. On an undertaking by the plaintiffrespondents the execution of the decree has been kept suspended till the date of judgment.

(2.) THE suit was filed for eviction of the tenantrevisionists from the suit premises situated in the city of Mathura. THE defendants had admittedly been tenants on month to month basis in the suit premises on a rate of rent of Rs. 5,705/- per month. Initially the tenancy was created for a period of three years with stipulation for extension of the period up to 3 years more subject to enhancement of rent by 15 per cent. THE extended period of tenancy was to expire on 15th Dec. 1993. Before the aforesaid date of expiry, the plaintiff served a notice on the defendants on 20-7-1993 demanding vacant possession of the suit premises after expiry of extended period of tenancy. On receipt of the notice, the defendants started negotiating for taking the building on a fresh lease on 20 percent enhancement of the rate of rent for a further period of five years. THE negotiations, however, failed. THE building was constructed, according to the plaintiff, in the year 1987, the rate of rent was more than Rs. 2000/- per month and the provisions of the U. P. Act No. 13 of 1972 were not applicable for any matter relating to the landlord tenant relationship. A notice under S. 106. T P Act was sent to the tenants on 30th Aug. 1994, for terminating their tenancy. Replies were sent to such notice but possession was not made over.

(3.) THE revision was pressed basically on the question of waiver only. THE learned counsels submitted case-laws in support of their arguments. Reliance was further placed on the statement of the plaintiff to show that rent was accepted even after service of the termination of notice. Reference was made to deposition of PW- 1, a copy of which was placed before me. This P. W. admitted in paragraph 6 of his cross-examination that New India Assurance Company had deposited the sum due as rent and he had withdrawn the same. He admitted that he did not intimate the New India Assurance that the same was being withdrawn as damages for unlawful occupation, or it was accepted under protest. He, however, asserted that he had given a separate receipt for such sum.