caselaws
Supreme Court of India
Samar Pal Singh vs Chitranjan Singh on 28 September, 2015Author: P C Pant
Bench: Dipak Misra, Prafulla C. Pant
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7988 OF 2015
(Arising out of S.L.P. (Civil) No. 9202 of 2012)
Samar Pal Singh … Appellant
Versus
Chitranjan Singh …Respondent
J U D G M E N T
Prafulla C. Pant, J.
This appeal is directed against judgment and order dated
20.12.2011, passed by the High Court of Judicature at Allahabad in Civil
Revision No. 8 of 1990 whereby the revision filed by the defendant No.1 is
allowed, and order of eviction against the tenants passed by Judge, Small
Causes Court/Xth Additional District Judge, Meerut, is set aside.
2. We have heard learned counsel for the parties and perused the papers
on record.
3. Brief facts of the case are that plaintiff No.1/appellant is owner
and landlord of house bearing municipal no. 831 (old no. 446), situated in
Mowana, District Meerut. The house was let out to Nawab Singh (father of
the respondents) and a rent note (Annexure P-2) was executed on 15.02.1975.
The building under lease consists of ground floor used for commercial
purposes and the first floor for the residential purpose. It was pleaded
by the plaintiffs that the defendants stopped payment of rent of the
building, after August, 1981. Consequently, a notice on 16.08.1982 was
served on the defendants, and when they failed to pay rent within one month
of service of notice, a suit for eviction and recovery of arrears of rent
was filed by the plaintiffs before Judge, Small Causes Court/District
Judge, Meerut.
4. Only defendant no.1 (respondent before us) contested the suit and
filed written statement. It is admitted that the plaintiff/appellant is the
landlord of the house in question. It is also admitted that property was
let out to Nawab Singh, father of answering defendant, on rent at the rate
of Rs.440/- per month. However, it is denied that there was any default in
payment of rent, on the part of the defendants. It is stated that no notice
of demand of arrears of rent and termination of the tenancy was served on
the defendants. In the additional pleas, the answering respondent has
stated that the rate of rent was only Rs. 200/- per month which was paid up
to December, 1981 to Kishan Pal Singh (father of plaintiff no.1). It is
further pleaded that thereafter, the rent was not accepted by the landlord.
It is pleaded that answering defendant tendered amount of Rs. 20,000/-
before the trial court in May, 1984 which included arrears of rent, nine
percent interest and costs. As such, in view of the provision contained in
sub-section (4) of Section 20 of Uttar Pradesh Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972 (for short “U.P. Act No. 13 of
1972”), the defendants are protected from the decree of eviction, and the
suit is liable to be dismissed.
5. The trial court framed following issues on the basis of the pleadings
of the parties:-
“1. Whether defendants are in arrears of rent from 01.09.1981 and have
committed default?
2. Whether rate of rent is Rs.440/- per month as alleged by the
plaintiff or is Rs.200/- per month as alleged by the defendant?
3. Whether the plaintiff has served valid notice upon the defendants u/s
106 Transfer of Property Act?
4. Whether defendant is entitled to the benefits of the provisions of
Section 20 (4) of the U.P. Act 13 of 1972?
5. To what relief, if any, is the plaintiff entitled?”
6. The parties led their oral and documentary evidence before the trial
court. After hearing the parties, all the issues were decided in favour of
the plaintiffs, and the suit was decreed for ejectment of the defendants
from accommodation in question, and also for arrears of rent amounting
Rs.5,632/- and mesne profits at the rate of Rs.440/- per month till
dispossession of the defendants. Aggrieved by said judgment and decree
dated 06.12.1989, passed in SCC Suit No. 5 of 1983 by Judge, Small Causes
Court/ Xth Additional District Judge, Meerut, Civil Revision was filed
under Section 25 of Provincial Small Causes Court Act, 1887 which was
allowed by the High Court vide impugned order, challenged before us, in
this appeal.
7. The High Court has not disturbed the findings of trial court on issue
Nos. 1, 2 and 3. The High Court has observed in its order that the
defendants have not disputed the findings of the trial court on issue Nos.
1, 2 and 3, as such, the same have attained finality. The only findings on
issues No. 4 to 5 were challenged before the High Court which relate to
provision contained in sub-section (4) of Section 20 of U.P. Act No. 13 of
1972.
8. Clause (a) of sub-section (2) of Section 20 of U.P. Act No. 13 of
1972 allows a landlord to seek eviction of tenant from a building after
determination of his tenancy, on the ground that the tenant is in arrears
of rent for not less than four months, and has failed to pay the same to
the landlord within one month from the date of service of notice of demand
upon him. But sub section (4) of Section 20 protects the tenant from
decree of eviction if he deposits entire arrears of rent with nine percent
interest and costs before date of first hearing in the suit.
9. Sub-section (4) of Section 20 of the Act reads as under:-
“(4) In any suit for eviction on the ground mentioned in clause (a) of sub-
section (2), if at the first hearing of the suit the tenant unconditionally
pays or tenders to the landlord or deposits in Court the entire amount of
rent and damages for use and occupation of the building due from him (such
damages for use and occupation being calculated at the same rate as rent)
together with interest thereon at the rate of nine per cent per annum and
the landlord’s costs of the suit in respect thereof, after deducting
therefrom any amount already deposited by the tenant under sub-section (1)
of Section 30, the Court may, in lieu of passing a decree for eviction on
that ground, pass an order relieving the tenant against his liability for
eviction on that ground:
Provided that nothing in this sub-section, shall apply in relation to a
tenant who or any member of whose family has built or has otherwise
acquired in a vacant state, or has got vacated after acquisition, any
residential building in the same city, municipality, notified area or town
area.
Explanation:- For the purpose of this sub-section-
the expression “first hearing” means the first date for any step or
proceeding mentioned in the summons served on the defendant;
the expression “cost of the suit” includes one-half of the amount of
counsel’s fee taxable for a contested suit.”
10. From the record, it appears that initially suit was decreed ex-parte
against the defendants, and they got the same set aside vide order dated
25.05.1984. On the next day i.e. 26.05.1984, on behalf of the defendants, a
tender was submitted for depositing Rs. 20,000/- in favour of the landlord
towards arrears of rent, 9% interest and costs of the suit. It is also
apparent from the record that after the tender was passed by the Court, the
amount was deposited on 28.05.1984. It is not disputed by the learned
counsel for the appellant that the amount deposited was sufficient to cover
what was required to be deposited under the sub-section quoted above. As to
the date of first hearing, also no argument is advanced before us as such
there is no scope of interference with the conclusion of the High Court on
that point.
11. What is vehemently argued before us on behalf of the landlord is that
in view of the proviso to sub-section (4) of Section 20, since the
defendants have acquired as many as four houses within municipal limits of
the city, as such, they are not entitled to protection provided under the
sub-section. On the other hand, on behalf of the tenants, it is contended
that the proviso to sub-section (4) deprives a tenant only if he has built
or otherwise acquired a residential house in a vacant state in the city and
in this connection it is further submitted that properties acquired by the
tenants are commercial.
12. From the language of sub-section quoted above, it is clear that under
the proviso it is provided that nothing in the sub-section could apply in
relation to a tenant who or any member of whose family has built or has
otherwise acquired in a vacant state, or has got vacated after acquisition,
any residential building in the same city. Learned counsel for the
tenant/respondent did not dispute that the respondent has acquired
property Nos. 621, 42, 43 and 72 in the municipal limits of Mowana
(District Meerut). What the High Court has held is that the proviso
deprives the tenant of the protection under sub-section (4) only if he has
acquired residential building. On carefully going through the record, we
are unable to agree with the High Court that none of the properties
acquired by the tenant are residential. From the evidence on record, it is
clear that only property no. 621 and property no. 42 are shops. The record
reveals that property no. 43 consists of two rooms, one hall on the ground
floor, and one room with Sehan on the first floor and property no.72
consists of five rooms. There is no specific finding that the nature of
these two buildings is exclusively commercial. In our opinion, High Court
has erred in law by treating these two properties as commercial without
there being evidence to that effect. A building which can be used for
residential as well as commercial purposes cannot be said to be excluded
from the clutches of proviso to sub-section (4), if built, or acquired in
vacant state within limits of the municipal area in which the house from
which eviction is sought by the landlord. Needless to say in the present
case building in question was let out for residential-cum-commercial
purposes.
13. It cannot be said that object of sub-section (4) of Section 20 is to
protect those tenants who have built, or acquired in vacant state a house
which can be used for residential as well as commercial purposes. If word
“residential” mentioned in the proviso is taken to mean what has been
interpreted by the High Court, the object of the proviso would get
defeated. As such, in our opinion, the High Court has erred in law in
reversing the judgment and decree passed by the Judge Small Cause Court.
14. For the reasons as discussed above, we are unable to uphold the
impugned order passed by the High Court. Therefore, the appeal is allowed
and impugned order passed by the High Court in revision is set aside. The
decree passed by the Judge Small Causes Court/Xth Additional District
Judge, Meerut in SCC Suit No. 5 of 1983 is restored. The defendants are
directed to vacate premises in question within a period of sixty days from
today. No order as to costs.
…………………..…………J.
[Dipak Misra]
.……………….……………J.
[Prafulla C. Pant]
New Delhi;
September 28, 2015.
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