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HARIDEV MISRA v.
JAMUNADAS AGARWAL & ORS.
FEBRUARY 17, 1989 (K. JAGANNATHA SHE'ITY, A.M. AHMADI AND KULDIP SINGH, JJ.] U. P. Urban Building (Regulation of
Letting Rent and Eviction) default— Landlora' raising a new plea that tenancy was for furnished house— Whether permissible to raise such plea.
Act, I972—Secti0ns 3 (i) and 20(2) (a)——Eviction of tenant for
The respondent-landlord filed a suit for eviction of the appellantstenant from the house in question on the ground of failure to pay rent and for realisation of arrears of rent. While the respondent pleaded that the rate of rent was Rs.70 per month, the appellant contended that it was only Rs.40 and not Rs.70, and that he was paying Rs.30 per month for the furniture, provided by the landlord which he returned sometime after the tenancy commenced. The trial court dismissed the suit
‘l holding that the rate of rent was m“
Rs.40 per month and, as such, the appellant was not defaulter. In the revision filed by the respondent, the Revisional Court held that the rent was Rs.70 per month. The appellant filed a writ petition before the
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High Court, which quashed the revisional order and remanded the case for deciding the revision petition afresh.Thereafter, the revisional court again allowed the revision.
The appellant challenged the revisional order before the High Court which dismissed the same. In the appeal, by special leave, it was contended on behalf of the appellant-tenant that in the face of clear admission of the respondent in per month, and that the amount of Rs.70 per month mentioned in the rent note had been explained in the receipts, to be Rs.40 as house rent and Rs.30 for
\ the receipt, the rent of the house was Rs.40 furniture.
On behalf of the respondent, it was contended that the tenancy
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HARIDEV MISRA v. JAMUNADAS AGARWAL was for a furnished building and failure to pay a part of the rent, in of furniture, would attract the provisions of s. 20(2)(a) of respect the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 and the appellant was liable to be ejected. It was also contended that the tenancy being of a furnished house the tenant could not under law, unilaterally surrender part of tenancy.
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Allowing the appeal, HELD: It was never the case of the respondent at any stage that furnished house was given on rent to the appellant. In the notice before filing the suit and in the plaint, it was specifically pleaded that rent of the house was Rs.70 per month and the tenant was in arrears. In the written statement, appellant took a clear stand that the rent of the house was only Rs.40 and Rs.30 was for the furniture, which according to him, was returned after the commencement of the tenancy. [760C-D] In the face of clear pleadings on the record, it is impermissible to raise the plea that the landlord rented a furnished house to the tenant. It would be contrary to the pleadings. That apart, neither before the trial court nor before the Revisional Court and not even before the High Court this plea was raised. [760F] The trial court relied upon the rent receipts, 39/C and 40/C, produced by the appellant. It was clearly mentioned in the receipt 39/C that Rs.40 were towards house rent and Rs.30 towards furniture charges and Rs.3 towards water and electricity charges. The respondent admitted the contents of the receipt but explained that Rs.30 towards furniture charges was mentioned at the request of the tenant. [758G-H]
In the face of the clear admission by, the, respondent in the two receipts, the finding of the Revisional Court that the monthly rent was
Rs.70 is erroneous. [759D] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 912 of 1989. .
From the Judgment and Order dated 11.5.1988 of the Allahabad
High Court in Misc. W.P. No. 7886 of 1985. Yogeshwar Prasad and Mrs. Shobha Dikshit for the Appellant.
.
Satish Chandra and Madan Lokur for the Respondents. The Judgment of the Court was delivered KULDIP SINGH, J.
by
Special leave granted.
This appeal arises out of a suit filed by respondent (plaintiff) landlord in the Court of Judge, Small Causes, Gorakhpur, for eviction of the appellants (defendant) tenant from the house in question on the ground of failure to pay the rent and for realisation of arrears'of rent and electricity charges amounting to Rs.2,560.60. It was pleaded that the tenant was to pay a monthly rent of Rs.70 apart from Rs.3 per month as water and electricity charges and was in arrears since July, 1979 which he failed to pay. The appellant contested the suit mainly on the ground that the rate of rent was not Rs.70 per month but it was only Rs.40 and besides that he was provided with furniture by the landlord for which he was paying Rs.30 per month. His case further was that some time after the tenancy commenced, he returned the furniture. The Judge, Small Causes Court, by his judgment dated 10th November, 1983, dismissed the suit holding that the rate of rent was Rs.40 per month and as such the appellant was riot a defaulter. The respondent filed a revision which was allowed by the Additional District Judge, Gorakhpur. The Revisional Court held that the rate of rent was Rs.70 per month. The appellant filed a writ petition against the revisional order before the Allahabed High Court. The High Court allowed the writ petition, quashed the revisional order and remanded the case for deciding the revision petition afresh. Thereafter, the Revisional Court again allowed the revision and set aside the judgment of the Trial Court and ordered ejectment. The appellant again challenged the revisional order by way of a writ petition before the Allahabad High Court but the same was dismissed. Hence this appeal. The Trial Court primarily relied upon documents 39/C and 40/C produced by the defendants. Document 3910 is a receipt by the plaintiff wherein details of Rs.73 are given. It is clearly mentioned in the receipt that Rs.40 were towards house rent, Rs.30 towards furniture charges and Rs.3 water and electricity charges. The plaintiff admitted the contents of receipt 39/C but he explained that Rs.30 towards fumiture charges were mentioned at the request of the defendant. The plaintiff strongly relied upon the rent note 97/C wherein monthly rent of the house was mentioned at Rs.70. The Trial Court rejected the rent g
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J.] HARIDEV MISRA v. JAMUNADAS AGARWAL [SINGH, the, defendant.
signed by note on the ground that the same Court diSmissed the Trial the the 391C, on receipt Basing its findings on the other hand, found force in the conwas not suit. The Revisional Court, the tention of the plaintiff that the rent note 97/C was signed by of the plaintiff in defendant. It was held that the admission, if any, note 97/C and as such cannot receipt 39/C is contradicted by the rent thus differed from be taken into consideration. The Revisional Court the Trial Court and ordered ejectment.
Before us, the counsel for the appellant Shri Prasad contends 39/C that in the face of clear admission of the respondent in the receipt contends‘that the rent of the house was Rs.40 per month. He further been has explained by consideration, into taken if even the rent note, to him Rs.70 per month and 40/0 According the receipts 39/C to be mentioned in the rent note has been explained in the receipts the in force find Rs.40 as house rent and Rs.30 for the furniture. We the contention of the learned counsel. In the face of clear admission by the Revisional'Court to respondent in the two receipts the finding of Faced with the effect that the monthly rent was Rs.70 is erroneous. the respondent this situation Shri Satish Chandra, learned counsel for Urban Buildings UP. the of Section to attention our 3(i) invited 1972 (hereinafter (Regulation of Letting, Rent and Eviction) Act, for a furnished was called ‘the Act’) and contends that the tenancy in respect of furniture building and as such failure to pay even Rs.30 the Act and the would attract the provisions of Section 20(2)(a) of Section and 20(2)(a) of appellant is liable to be ejected. Section 3(i) the Act are as under: “Section 3(i) “building’s, means a residential residential roofed structure and includes—
(i) any land (including any garden), garages houses, appurtenant to such building; (ii) any furniture supplied by the landlord building;
(iii) any fittings and fixtures affixed to or non— and out- for use in such such building for the more beneficial enjoyment thereof”.
of rent for “Section 20(2)(a). “that the tenant is in arrears same to the to failed has pay and not less than four months, service of date the from month one the landlord within demand.” of notice upon him of a
Shri Satish Chandra contends that definition of building under Section 3(i) includes any furniture supplied the landlord for such building and as such by use in non—payment of part of the rent meant for furniture would amount to arrears of rent and the appellant having pay the same is liable to be In other words, he ejected. contends that it was a furnished house which was let-out to the failed to appel~ proposition of law canvassed by Shri Satish Chandra on the basis of Sections 3(i) and of the Act, but 20(2)(a) there is no basis for him in the present case to advance the same.
It was never the case of
N .P.V.
Appeal allowed.
the