Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1300 (M/S) of 2005 1.Smt. Phoolwati, 2. Shiv Kumar 3. Sandeep Kumar 4. Kamal Kumar 5. Smt. Pawan 6. Smt. Bala 7. Smt. Mithlesh - Petitioners Versus Sri Man Mohan Kumar Nagalia and others - Respondents Mr. A. Rab, Senior Advocate assisted by Mrs. Prabha Naithani, learned counsel for petitioners. Mr. Lok Pal Singh, Advocate for respondent No.1. (Hon’ble B.S. Verma, J.) By means of this petition, the petitioners have sought a writ in the nature of certiorari quashing the judgment and decree dated 24th April, 2001, passed by Civil Judge (Senior Division)/Fast Track Court VIIIth in S.C.C. Case No. 3 of 1990, Man Mohan Vs. Brahmanand (Annexure No.1 to the writ petition) and also the confirmation of the decree dated 1st October, 2005, passed by Addl. District Judge/F.T.C. VIth, Dehradun, in SCC Revision No. 39 of 2001 (Annexure No.2 to the writ petition). Briefly stated the facts of the case giving rise to this writ petition are that the respondent Man Mohan Kumar Nagalia filed SCC Suit No. 3 of 1990 against late Sri Brahmanand for recovery of rent as well as for eviction in respect of disputed property i.e. one part of property No.32, Raja Road, Dehradun, comprising of two rooms, one Kothari, one Varandah and flush latrine. As the original tenant Brahmanand had died hence his legal heirs have been impleaded as defendants. According to Man Mohan Kumar landlord plaintiff/respondent, the defendant Brahmanand was tenant in the aforesaid premises since 1-9-1986 and the tenancy was monthly. The tenant failed to pay the rent and the arrear of rent upto 31-8-1987 was @Rs. 30/- per month and thereafter from 1.9.87 it was payable @ Rs. 200/- month. The landlord demanded the arrear of rent through notice dated 22.5.1989, but despite service of notice the tenant did not 2 pay the rent within one month of notice, hence his tenancy was determined through notice dated 25-8-1989. According to the landlord the arrears of rent was due w.e.f. 1.9.86 to 31.8.1987 @ Rs. 30/- per month and from 1.9.87 to 27-9-89 @ Rs. 200/- per month. The total arrear of rent was Rs. 5340/-. The plaintiff also claimed damages for (Hkkotk Lrseky ) unauthorized use and occupation of premises by the tenant after determination of his tenancy. On behalf of the defendant/tenant the suit was contested and filed written statement. The defendants admitted the relationship of landlord and tenant. They also alleged that provision of Act No.13 of 1972 applies to the disputed premises. However they alleged that there is no arrear of rent. They further alleged that the rent of disputed premises was @ Rs. 30/- per month from 1-9-86 and it was never increased. It is alleged in the written statement that no cause of action arose for filing the suit and the suit is barred by provision of Section 20 of U.P. Act No.13 of 1972. The defendant also alleged that the rent of disputed premises was Rs. 15/- per month and it was increased to Rs. 25/-. The defendant/tenant paid the rent to the landlord but he refused to accept the same. It was also alleged that the suit is liable to be dismissed for want of notice U/S 106 of T.P. Act. The plaintiff filed replication in reply to written statement filed by the defendant and denied the contents of written statement and reiterated the allegations made in the plaint. The learned Civil Judge (S.D.) Dehradun on the basis of pleading of parties framed following points of determination :- 1- Whether the defendant defaulted in the payment of rent?. 2- Whether the monthly rent of disputed property w.e.f. 1-8-87 was @ Rs. 200/- or Rs. 25/- per month?. 3- Whether the defendant was given flush latrine and Chabutara after constructing them, as alleged in para 16-A of W.S.? If so, its effect?. 4- To what relief, the plaintiff is entitled to get?. 5- Whether the suit is liable to be dismissed for want of notice U/S 106 of T.P. Act?. The parties led evidence in support of their claim. The learned trial court after hearing parties and considering the entire evidence on 3 record, decreed the suit on the ground in default of payment of rent and issued direction to the defendant to vacate the disputed premises. He was also directed to pay arrear of rent w.e.f. 1.9.87 @ Rs. 200/- per month and w.e.f. 28-9-89 till the vacation of property to pay damages @ Rs. 200/- per month. Feeling aggrieved by the judgment and decree passed trial court the tenant/defendant preferred revision before the Addl. District Judge/ F.T.C. VIth Dehradun, who vide impugned judgment and order dated 1-10-2005 dismissed the revision. Now the tenants/petitioners have come up before this court by filing this writ petition. The grounds taken in the writ petition are that the suit filed by the respondent No.1 was not maintainable in view of Section 20(2)(a) of U.P. Act No. 13 of 1972, as on the date of issuance of notice the rent was already sent to the landlord by the tenant and tenant was not in arrears of rent. The trial court has committed a manifest error while deciding issue Nos. 1, 2 and 3 on conjuncture holding that the rent was increased from 1st September 1987 to Rs. 200/- per month. The landlord has failed to prove by filing documentary evidence that the rent was ever increased. The defendant No.1/landlord filed counter affidavit and denied the contents of writ petition. He alleged that when late Sri Brahmanand tenant agreed to enhance the rent to Rs. 200/- per month, he was provided one Varandah, Kitchen along with one room, newly built flush latrines and Chabootra. It is further alleged that he never received any money order. Heard Mr. A. Rab, Senior Advocate, assisted by Mrs. Prabha Naithani, counsel for the petitioners and Mr. Lok Pal Singh, Advocate for respondent No.1. Learned Senior Advocate appearing on behalf of petitioner has firstly submitted that the suit filed by respondent No.1 was not maintainable in view of Section 29(2)(a) of U.P. Act No. 13 of 1972, as on the date of issuance of the notice the rent was already sent to the landlord by the tenant and he was not in arrears of rent. Section 20(2)(a) of U.P. Act No.13 of 1972 provides that a suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the grounds 4 enumerated therein. Ground (a) says that the suit for eviction shall be filed when 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 upon him of a notice of demand. In the instant case it has been proved by evidence that the tenant has brought on record the money orders and its receipts Ex. Ka.46, Ka. 43, Ka.45, Ka.49, Ka.48 which proves that he had paid the rent prior to 25-8-1989 when the notice was sent by the landlord to the tenant but after giving notice of demand and for determining the tenancy dated 25-8-1989, the tenant has not tendered the rent of the disputed premises to the landlord. In this respect he has not filed any evidence in the form of money order, receipts etc which may show that he had paid rent after issuing the notice to the landlord. The landlord has been successful in proving that the defendant /tenant has defaulted in payment of rent and after demand notice also he did not respond to it. Therefore, the above submission of learned Senior Advocate has got no substance and the suit was legally maintainable for the relief of recovery of rent as well as for eviction. The next submission of learned Senior Advocate is that the rent of disputed premises was Rs. 25/- per month and it was never increased to Rs. 200/- per month w.e.f. 1.9.1987 and the finding on this point of the learned trial court is perverse finding and is not liable to be maintained in the eyes of law. I have perused the finding of trial court on issue No.2. The burden to prove this issue was on the plaintiff/landlord that the rent of disputed premises upto 31.8.1987 was Rs. 30/- per month and w.e.f. 1.9.1987 it was increased to Rs. 200/- per month. According to the landlord the rent was increased to Rs. 200/- per month w.e.f. 1.9.1987 for the reason that the tenant was given extra accommodation of kitchen, Varandah, Chabutara and flush latrine. P.W.2, Puran Singh had constructed the above accommodations and he has given statement about it. D.W.1 Sandeep Agrawal in his cross examination has admitted this fact that after construction of new accommodation talks about rent had taken place between his father and the plaintiff. He was not present there but his mother was there. But the mother has not been produced in the court for the reason best known to the 5 defendants. In the demand notice dated 22-5-1989 the plaintiff has demanded the rent @ Rs. 200/- per month from 1.9.1987 till May 1989. The receipts Ext. Ka. 11 to Ka.32 which have been produced by the tenant on record shows that till 1986 one room and a Kothari were in the tenancy of the defendant and he was not having kitchen, varanda, latrine, Chabutara etc. and when these accommodations were also given to the tenant the rent would certainly have been increased w.e.f. 1-9-1987. From the side of defendant/tenant no cogent and reliable evidence has been produced in order to show that they were not given extra accommodation of kitchen, flush latrine, Varandah and Chabutara w.e.f. 1.9.1987 and they were in possession of old premises only. The tenancy was monthly tenancy. Vide demand notice dated 22-5-1989 the plaintiff had demanded the rent w.e.f. 1-9- 1987 to May 1989 as the same was not paid by the tenant. It is thus quit clear that the plaintiff by his evidence and by the evidence of his witnesses as well as documentary evidence has proved that the rent of accommodation was increased to Rs. 200/- per month w.e.f. 1-9-1987 and defendant tenant has not tendered the aforesaid rent even after receipt of notice for the period 1-9-97 to May 1989. Therefore, the learned trial court was justified in holding that the rent @ Rs. 200/- per month w.e.f. 1-9-1987 is unpaid and there has been default on behalf of tenant in payment of rent. Learned Senior Advocate also submitted that the tenant has not admitted any amount due against him, therefore, compliance of Order 15, Rule 5 C.P.C. does not come into play in the instant case and when there is no liability of tenant to deposit any amount the defence is not liable to be struck off. In support of his contention learned Senior Advocate has placed reliance on the case of M/s Umesh Industries and another versus IX Additional District Judge, Ghaziabad and others, reported in AIR 1995 Allahabad 61. I have gone through the above cited ruling. It has been observed in the above cited judgment as under:- “A perusal of Rule 5 ( as amended in U.P.) would show that the deposit contemplated therein is separable in two parts. The first part requires deposit, to be made by the defendant on or before the first date of hearing of suit, of the entire amount admitted by 6 him to be due together with interest thereon. The second part deals with deposit of monthly amount falling due after the first date of hearing, unlike the first part, it lays down that the deposit has to be made of monthly amount due within a week from the date of its accrual throughout the continuation of the suit, whether or not the defendant admits the amount to be due. Such deposit, each month, thus, is the very foundation of the right of the defendant to set up defence. The defendant in the instant case, admittedly not having made any deposit of monthly amount after the first date of hearing there was no option but to strike off his defence on account of breach of this mandate. Tue it is that it is not mandatory to strike off the defence in every case where there is default in compliance of Rule-5, but recourse to such non- striking would be justified only if from the materials on record any extenuating circumstances is made out. The aforesaid case law is not helpful to the petitioner. As stated in the earlier part of this judgment that the petitioner/tenant has paid the rent of the disputed premises upto 31-8-1987, but w.e.f. 1.9.1987 he was provided more accommodations of kitchen, flush latrine, varandah and Chabutara, and the rent was increased to Rs. 200/- per month, the plaintiff sent demand notice but the tenant did not tender the outstanding amount of rent to the landlord. Learned counsel for petitioner also submitted that the courts below have failed to appreciate that no notice for enhancement of rent in writing to the petitioners(tenants) was ever given by the landlord (respondent No.1) within three months from the date of completion of the improvement (if any) as required U/S 6 of U.P. Act No.13 of 1972, hence the finding of courts below is perverse and against law. The above submission is also of no avail. Section 6 of the Act deals with the matters where some improvement is made in the premises let out to a tenant. In the case at hand it is specific case of the plaintiff that prior 1-9-1987, the tenant was having only one room and a Kothari and the landlord after partition of property added new accommodation by construction a kitchen, flush latrine, Varandah and Chabutara and this addition cannot be termed as improvement, rather it is new construction and this accommodation was given to tenant 7 beside the one which was already with him and that was the reason that the rent was enhanced. It is also admitted case of parties that there was no rent deed in writing and that may be the reason that no rent agreement was made in writing with regard to enhanced rent. Counsel for petitioner has also contended that the rent which was admitted by the petitioner, has been deposited under Section 30 of the Act No. 13 of 1972. So far as the deposit of rent U/S 30 of the Act after demand by way of notice U/S 106 of T.P. Act, and during the pendency of suit, would be at the risk of petitioner. However, in this case no rent was deposited before the Judge S.C.C., therefore, both the courts have not committed any error of law in holding that the petitioner/tenant has committed default in payment of rent. It is also pertinent to mention here that both the courts below have recorded concurrent finding of fact on the point of default on the part of the tenant as well as on the point of increased rent and in writ jurisdiction the same cannot be scrutinized like court of appeal and only perversity or manifest error of law, if any committed by the courts below, is to be seen. However, I do not find any perversity and manifest error of law committed by the courts below in passing the impugned judgments. The writ petition lacks merit and is liable to be dismissed. The writ petition is dismissed. ISB (B.S. Verma, J.) 13-12-2011