B.N. MUKHERJI Vs. VIRENDRA SHANKER VERMA

JUDGEMENT

(1.) THIS revision under Section 25 of the Small Cause Court Act has been Directed against the judgment and order dated March 31, 1989, passed by the IVth Additional District Judge, Allahabad, the suit of the opposite party for the ejectment of the applicant from the premises in suit and for the recovery of rent and damages for the use and occupation till the date of the suit and for the recovery of pendente lite and future damages at the rate of Rs. 200 per month after payment of court fees on the execution side. The facts in brief are that the opposite party filed a suit against the applicant alleging that the applicant was a tenant of the premises in dispute on a monthly rent of Rs. 200 with proportionate water tax and electricity charges at the rate of Rs. 50 per month as per agreed terms of tenancy. The opposite party claimed rent and electricity charges and water tax with effect from 1.2.1983 which the applicant failed to pay. The opposite party did not insist on the payment of rent as the applicant was promising to vacate the premises in suit prior to his retirement but even there -after contrary to his promise failed to vacate the premises. However, the opposite party with the expectation that the defendant will vacate the pre mises did not insist on payment of rent which culminated in its piling up. The applicant shifted to Varanasi sometime in the middle of 1934 and as and when the opposite party insisted for the vacation of the premises an assurance was advanced that while vacating the premises the dues would be cleared off. The opposite party waited for four years and it was on 21.1.1988 that a notice through registered post demanding the arrears of rent with effect from 1.2.1785 to 31.12.1987 amounting to Rs. 11,80/ - and the electricity charges for the same period amounting to Rs. 2950/ - within a month from the date of the notice. On account of the non compliance of the requirements of the notice the suit for ejectment on the applicant from the premises in suit besides recovery of arrears of rent and damages for use and occupation was filed excluding the rent which had become barred by limitation.

(2.) THE suit was contested by the applicant. It was alleged that, he had vacated the premises in sometime in January, 1980 and had shifted to Varanasi along with his wife whereafter his son became the tenant of the opposite party. The applicant denied that the rate of rent was Rs. 200 per month but pleaded that it was only Rs. 100/ -. It was also alleged that the electricity charges were only Rs. 15/ - and not Rs. 50/ - per month as claimed by the opposite party. After his vacating the applicant alleged that the son of the applicant Deepak Mukerjee was inducted by the opposite party as his tenant. It was also pleaded that initially the premises was let on Rs. 75 per month but after the commencement of Act No. 13 of 1972 it was enhanced to Rs. 100. The entire amount of rent at the time of vacating the premises was cleared by the applicant Pursuant to his becoming the tenant Deepak Mukerjee had been paying the rent since January, 1980. It was categorically alleged that the applicant wanted to enhance the rent from Rs. 100 to Rs. 200 which was not acceptable to Deepak Mukerjee thus compelling the latter to deposit the rent in proceedings under Section 30(i) of the Act in the court of Munsiff (West), Allahabad. The trial court on the basis of the pleadings of the parties framed two points for consideration (1) whether there is relationship of landlord and tenant between the parties, and (2) what is the rate of rent. In support of their respective claims the opposite party examined himself as P.W. 1 and one S.N. Agarwal as P.W. 2 whereas the applicant to buttress his contention examined himself as D.W. 1, Deepak Mukerjee as D.W. 2 and one Udai Shanker Pande as D.W. 3.

(3.) LEARNED counsel for the applicant has very vehemently asserted that the findings recorded by the trial court are not according to law and it is a fit case for interference by this court. Learned counsel for the applicant has submitted that the testimony of S.N. Agarwal is of no avail except the fact that it was created sometime in May or June, 1964. It has been submitted that P.W. 2 is none else but a friend of the opposite party and was on visiting terms and even on the date when his testimony was recorded no summons were issued to him. It has thus been alleged that S.N. Agarwal is a pocket witness. As regards the rate of rent P.W. 2 has stated that the rate of rent which was settled was Rs. 150 besides Rs. 15 as electricity charges. A receipt was scribed in his presence but that paper could not see the light of the day on record. This was no doubt a material document. If the receipt was issued it is common knowledge that copy thereof is retained by the landlord but no such document has been brought on record evidencing that the rate of rent was even agreed at the rate of Rs. 150/ - as deposed by P.W. 2 S.N. Agarwal. It has further been very vehemently stressed by Shri R.H. Zaidi that if on account of the good offices of P.W. 2 S.N. Agarwal the opposite party had agreed to let of the premises then why at no stage of time when the applicant was not vacating the premises and was making only false promises his services were not utilised is wholly incomprehensible because it was at the instance of P.W. 2. S.N. Agarwal that the opposite party had agreed to let out the accommodation in dispute to the applicant who also happened to be his friend. This witness as has been submitted is still on visiting terms with the opposite party.