IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 71 of 2011 Ambrish Kumar S/o Sri Gukul Chandra Agrawal M/s Jai Bhat Cloth House, Durga Market Sahukara Line, Haldwani, District Nainital - Revisionist Versus Sri K.S. Gupta S/o Sri Kishori Lal R/o C-11/22, Bagha Nagar New Delhi - Respondent Mr. Sharad Sharma, Senior Advocate assisted by Mr. S.K. Pandey, Advocate for revisionist. Mr. Sudhir Kumar, Advocate for respondent [Hon’ble B.S. Verma, J. (Oral)] This revision under Section 25 of Provincial Small Causes Courts Act, has been preferred against the judgment and order dated 10-08-2011, passed by Judge Small Causes Court/Additional District Judge/ 1st F.T.C., Nainital, in S.C.C. Case No. 5 of 2010. Briefly stated the facts giving rise to this revision, according to the revisionist, are that the respondent/landlord has filed SCC Suit No. 5 of 2010, for ejectment of the revisionist/tenant from the shop under his tenancy, with the allegations that the defendant/revisionist had occupied the shop in question in terms of rent agreement dated 5-6- 2005 for a period of eleven months and agreed to pay a sum of Rs. 4,000/- per month as rent and a sum of Rs. 1,000/- per month as tax. The defendant/revisionist did not vacate the shop after 3-4-2006 and continued to pay the rent upto 31.5.2009. The plaintiff/respondent sent a registered notice on 4.11.2009 terminating the tenancy. Thereafter the plaintiff/respondent came to know that the defendant/tenant has deposited a sum of Rs. 50,000/- in the bank account of the plaintiff without the consent and prior intimation to the plaintiff. The plaintiff claimed that the tenant/defendant is liable to pay the rent and other taxes from 1.6.2009 to 31-12-2009 and damages for his illegal occupation @ Rs. 20,000/- per month with effect from 1.1.2010 to 31- 3-2010 and the defendant/tenant is also liable to eviction from the premises in suit. The defendant/revisionist contested the suit by filing written statement and controverted the entire allegations of the plaint and it 2 was stated in the written statement that he is an old tenant in the shop from the year 1979 when the father of the plaintiff was the landlord. Initially the rent of two shops under his tenancy was Rs. 450/- and Rs. 300/- per month. Both the shops were adjoining to each other and were taken on rent by two separate rent agreement dated 1.12.1979 and 1.2.1980. It was also alleged that the shops in question are governed by the provisions of U.P.Act No. 13 of 1972 (hereinafter referred as ‘the Act’). It was also alleged that the notice sent by the landlord/plaintiff was invalid. The plaintiff had accepted the rent subsequent to the notice. It was also denied that the rent is due upto 31-3-2010. The defendant also furnished the details of assessment of the shop in question made by the Municipal Board during the period 1.4.1985 to 31.3.2011 and according to the assessment the rent shown in Municipal Board is Rs. 800/- per month and for two shops it comes to Rs. 1,550/- per month. It was also alleged by the defendant that the shops in question were damaged in fire on 289.5.2005 in which the defendant/revisionist suffered a loss and thereafter the shops were repaired by him with the consent of the landlord and he invested a huge amount on it. The defendant denied the rent note and alleged that he had put his signatures on blank papers for purchase of the shops for a sum of Rs. Five lacs. The learned Judge S.C.C. on the basis of pleadings of parties, framed the following points for determination:- 1- Whether there is a relationship of landlord and tenant between the plaintiff and the defendant?. 2- Whether provisions of U.P. Act No. 13 of 1972 do not apply on the premises in dispute?. 3- Whether notice U/S 106 of T.P. Act is legally served upon the defendant and through this notice the plaintiff has terminated the tenancy of defendant?. The plaintiff K.S. Gupta filed his affidavit in evidence. On behalf of defendant, the defendant Ambrish Kumar has produced himself as D.W.1, Raish Ahmad as D.W.2, Laiyak Hussain as D.W.3, Hari Om Shankar as D.W.4 and Subhash Chandra Pandey as D.W.5. Both the parties also filed documentary evidence before the Judge S.C.C. 3 There is no dispute regarding relationship of landlord and tenant between the parties, and the learned Judge S.C.C. give finding on issue No.1 that relationship of landlord and tenant is in existence between the plaintiff and the defendant. On issue No.2, the learned Judge S.C.C., on the basis of rent- agreement dated 5.6.2005 as well as admission of the defendant/tenant in his cross examination that the rent of disputed premises was deposited in the account of the plaintiff @ Rs. 5,000/- (Rs. 4,000/-rent + Rs. 1,000/- as other taxes), has held that the provision of ‘the Act’ are not applicable on the demised premises. So far as notice part is concerned, the learned Judge S.C.C. has held on issue No.3 that the notice sent by the plaintiff cannot be treated a waiver in view of provision of Section 113 of ‘the Act’, following the ratio of the case of Swarup Singh Gupta Vs. Jagdish Singh reported in (2006) 4 supreme Court Cases 205. Accordingly the suit of the plaintiff was decreed. Feeling aggrieved the defendant/tenant has preferred this revision before this Court. I have heard learned counsel for the parties and have gone through the record. The first submission of learned Senior Advocate Mr. Sharad Sharma, appearing on behalf of revisionist is that there is no averment in the notice sent U/S 106 T.P. Act that the defendant has defaulted payment of rent and the learned Judge S.C.C. has decreed the suit on the ground of default also. Secondly it is contended that the plaintiff/respondent has accepted the rent after issuance of the notice to the defendant/revisionist and thus it amounts to waiver on the behest of the plaintiff. Thirdly it is contended that the learned Judge S.C.C. has not assessed the evidence produced on behalf of the defendant/revisionist in correct perspective when the defendant/revisionist has specifically pleaded that he had not signed the rent agreement, rather it was a contract agreement of sale of the shop in question, and gave perverse finding on this point that it was a rent agreement. Even otherwise 4 this rent-agreement cannot be read in evidence in view of provision of Section 35 of the Indian Stamp Act. It was next contended that the defendant/revisionist has filed the assessment of the shop in question according to which the rent of the shop was Rs. 800/- per month, but this fact has not been considered by the Judge S.C.C. while giving finding on the applicability of ‘the Act’ in the case. In reply to first submission of learned Senior Advocate relating non-mentioning this fact in the notice that there was default on behalf of defendant in making payment of rent, learned counsel appearing on behalf of respondent Mr. Sudhir Kumar, has contended that there is no requirement of law to mention this fact in the notice and by non- mentioning this fact in the notice, the notice cannot said to be a defective notice. On the point of waiver of notice, the learned counsel for the respondent has submitted that no consent was given by the plaintiff to the defendant to deposit the rent in his account and the defendant has himself deposited the rent in his account without his prior intimation and permission, hence the learned Judge S.C.C. has rightly held by following the ratio of Swarup Singh Gupta Vs. Jagdish Singh case (supra), that even after the acceptance of the rent the suit can be filed. He also submitted that the rent was deposited in the account of the plaintiff on 12.12.2009, 15.12.2009 and 29.12.2009, prior to termination of tenancy on 31.12.2009. Against third submission advanced by learned Senior Advocate, regarding validity of rent-agreement, the learned counsel for the respondent has submitted that the defendant/revisionist has admitted his signature on it and he himself deposited the agreed rent @ Rs. 5,000/- per month and admitted the rent while he was put for cross- examination, therefore, the finding of the court cannot be said to be a perverse finding on this point. So far as the submission on the point of inadmissibility of rent agreement in evidence by not being duly stamped, learned counsel for the respondent has contended that as the defendant/tenant has admitted his signatures on the rent-agreement and has also deposited the agreed rent and admitted the same in his cross-examination, hence 5 in view of provision of Section 36 of Indian Stamp Act, 1899, the admissibility of the said instrument cannot be questioned. So far as the last submission of learned Senior Advocate regarding assessment of rent of disputed premises @ Rs. 800/- per month in Municipal Record is concerned, the submission of learned counsel for the respondent is that the defendant/revisionist himself has admitted and deposited the rent in the account of the plaintiff @ Rs.5,000/- per month and if there is any dispute about the rent only then the Municipal rent could prevail. I have considered the above submissions of learned counsel for the parties. So far as the finding of learned Judge S.C.C. on issue No.1 regarding relationship of landlord and tenant between the parties, it is admitted to parties that the plaintiff is landlord of disputed premises and the defendant is his tenant, hence the learned Judge S.C.C. has given a correct finding on this issue. On issue No.2 whether ‘the Act’ is applicable on the premises in question or not, the learned Judge S.C.C. has dealt this issue in detail. The plaintiff in his affidavit has specifically stated that the rent of disputed premises was Rs. 4,000/- per month and Rs. 1,000/- was other taxes and the total rent was Rs. 5,000/-. The learned Judge S.C.C. also recorded a finding that in para No.7 of his affidavit D.W.1 Ambrish Kumar (tenant) has stated that he has made payment of rent @ Rs. 5,000/- which include the tax also, to the plaintiff on 31.3.2010. He further admitted that w.e.f. June 2005 upto 31.5.2009 he has paid Rs. 5,000/- per month, but that rent was agreed in view of the transaction. Regarding payment of Rs. 20,000/- through cheque paper No. 19-C/2 filed before the Judge S.C.C., the defendant has admitted that he had given the same to the plaintiff. He also stated that the note ‘rent and house tax up to 31.3.2007’ written on the back of this cheque, was in his handwriting. However he resiled from his statement and stated that the same has not been written in his hand writing. Therefore on the basis of admission of the defendant and other evidence adduced by parties, the learned Judge S.C.C. has rightly came to the conclusion that the Act No.13 of 1972 does not 6 apply on the premises in dispute since the rent is exceeding in view of provision of Section 2(1)(g) of the U.P.Act No.13 of 1972. So far as the contention on the issue of waiver is concerned, the Judge S.C.C. has placed reliance on the Apex Court’s judgment in the Swarup Singh Gupta Vs. Jagdish Singh case, and has held that after issuance of notice U/S 106 of the T.P. Act, merely by accepting the rent the notice will not be treated waived. In paragraph No.6, of the above cited judgment the Hon’ble Apex Court has observed as below:- “6. The learned Senior Counsel also relied upon a decision of a learned Single Judge of the Calcutta High Court in Manicklal Dey Chaudhuri v. Kadambini Dassi wherein it was held that where rent is accepted after the notice to quit, whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Ren Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111 (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative.” In the case in hand it is specific case of the landlord that the tenant has deposited the rent in his bank account without his consent or his prior intimation and that too before the date of terminating his 7 tenancy. It cannot, therefore, be said that notice sent to the tenant was waived. It has also not been established by other evidence that the landlord so intended. I do not find any perversity in the finding given by the trial court on this issue. Now coming to the submission of learned Senior Advocate that when the arrear of rent was not demanded the trial court has committed a manifest error of law in awarding the arrear of rent. I have perused the plaint. The plaintiff had claimed the following relief in the plaint:- a. That a decree for recovery of possession of the shop having two doors situated at Sahukara Line, Haldwni, District Nainital as bounded below may be passed in favour of the plaintiff and against the defendant i) East Raod ii) West Shop of Narain Pharmaceutical iii) North Sharda Hotel iv) South Gali then the shop of Saree Mahal b. A decree for recovery of Rs. 45,000/- may be passed in favour of the plaintiff and against the defendant. c. A decree for recovery of damages for use and occupation/mesne profits from the date of filing of the present suit till the recovery of possession may also be passed in favour of the plaintiff and against the defendant at Rs. 20,000/- per month or at such rate as the court deems fit. d. Interest pendente lite and future at the rate of 18% may be awarded to the plaintiff and against the defendant. e. Any other relief that the court deems fit may be granted. There is no dispute about the period for which the rent was paid by the defendant to the plaintiff. The plaintiff has claimed damages @ Rs. 20,000/- per month for unlawful use and occupation of the disputed premises. The learned Judge S.C.C. in general terms has simply directed to pay rent and damages @ Rs. 5,000/- per month in place of damages of Rs. 20,000/- per month claimed by the plaintiff. If the trial court has issued the above direction in the decree, the same cannot be said to be beyond the relief claimed by the plaintiff and the court was well within his jurisdiction while issuing this direction 8 under clause (e) of the relief claimed by the plaintiff -‘any other relief that the court deems fit may be granted’. In view of foregoing discussion, I find no jurisdictional or error of law in the decree passed by the Judge S.C.C. The revisions being devoid of any merit is liable to be dismissed. The revision is dismissed. However, the revisionist/tenant is granted three months time to vacate the shop in question. ISB (B.S. Verma, J.) 11-10-2011