Brijendra Kumar Jain vs Nirmal Kumar Jain

Rakesh Tiwari, J.—Heard Sri Sanjiv Kumar, counsel for the petitioner, Sri Sanjay Agrawal appearing for caveator-respondent and perused the record.

Facts of the case in nutshell are that plaintiff landlord, Nirmal Kumar Jain-respondent in this petition, instituted SCC suit No. 31 of 2008 Nirmal Kumar Jain v. Brijendra Kumar Jain, for eviction of the petitioner from shop No. 2 situated at 30/136, Khanna Gali, Chhipitola, Agra, on the ground that tenant has defaulted in payment of rent since January 1999 despite demand having been made by the landlord on a number of occasions. It was also averred in the plaint that suit property was needed by the plaintiff for the need of his son and that tenancy of the tenant petitioner has been terminated through notice which has been personally served upon him; that the shop in dispute is situated in heart of the city and has potential of being let out at the rate of Rs. 1000/ - per month which may be awarded alongwith means profit for use by the tenant in the aforesaid circumstances.

The tenant petitioner contested the suit by filing his written statement on 18.8.2008, inter alia that the shop in question was let out to him on 15.3.1973 at the rate of Rs. 50/ - per month alongwith another shop being shop No. 4; that no water tax was payable as there was no water connection in the shop for utilisation by the petitioner and the allegation that the petitioner had defaulted in payment of the rent is incorrect, as a matter of fact he has regularly paid the agreed rent but the plaintiff landlord had not issued any receipt with regard to payment of rent.

The trial court on the basis of oral and documentary evidence on record, came to the conclusion that tenant has not been able to prove that he has paid rent for the period as claimed in the suit. Per contra, the trial court found that landlord had produced counter foils of the rent receipts which established that the tenant petitioner was in default of rent as claimed by the plaintiff landlord.

The suit was decreed in favour of the landlord vide judgment and decree dated 3.11.2009.

Aggrieved by the aforesaid judgment and decree, the petitioner tenant preferred SCC revision No. 60 of 2009 Brijendra Kumar Jain v. Nirmal Kumar Jain, before District Judge, Agra. The revisional court vide its order dated 18.12.2009 initially stayed execution of the judgment and decree dated 3.11.2009 directing the petitioner to deposit decretal amount within 15 days in court and fixed the matter for arguments on 17.2.2010.

The tenant petitioner deposited a sum of Rs. 4243/ - on 23.12.2009 in the court of District Judge, Agra allegedly in compliance of the order dated 18.12.2009 passed by the revisional court.

It is at this stage that an application was filed by the landlord respondent interalia that amount decreed is Rs. 27000/ - which has not been deposited by the tenant and therefore the interim order dated 18.12.2009 may be vacated. Upon the application aforesaid, the revisional court vide its order dated 7.7.2010 has vacated the interim order dated 18.12.2009 in SCC revision No. 60/2009 also on the ground that there was no stay extension application filed by the petitioner.

The tenant petitioner thereafter moved an application dated 16.7.2010 for recall of the order dated 7.7.2010 on the ground that application Paper No. 23-kha for extension of the interim order was on record which has not been seen by the court and therefore the order dated 7.7.2010 has been passed on incorrect fact that there is no application of the petitioner for extension of the interim order.

It is an admitted fact that tenant petitioner has also moved an application dated 19.7.2010 for depositing the balance of decretal amount at the rate of Rs. 1000/ - per month including means profit etc.

Grievance of the petitioner is that till date recall application filed by him has not been heard by the revisional court. In the meantime the plaintiff respondent has moved an application for execution of the decree passed by the trial court which was registered as Execution Case No. 45 of 2010. He submits that since there is no interim order on record, the petitioner is being dispossessed from the shop in dispute. It is also stated that application /objection for depositing the balance amount is also pending before the revisional court.

Counsel for the petitioner has placed reliance on paragraph Nos. 8 and 9 of the decision in Girdhari Lal v. Ist Additional District Judge Agra 1998 (34) A.L.R. 674 which read thus:

Be that as it may there is material on record to indicate that the petitioner had deposited a sum of Rs. 3150/ - while making compliance of Section 17 of the Act when he had moved application before the trial court for setting aside the ex parte decree passed by the trial court. It is stated in the counter affidavit that the said amount was not sufficient to cover the entire decretal amount. The trial court had dismissed the suit for eviction and only suit for recovery of arrears of rent was decreed. The revision was filed by the landlord and not by the petitioner which was allowed ex parte without giving any opportunity of hearing to the petitioner. In the circumstances the revisional court should not have taken such a rigid view in rejecting the application of the petitioner for the restoration of revision to its original number. In any view of the matter if the revisional court felt that the amount deposited by the tenant in the trial court did not cover the entire amount accruing upto the date of making of recall application, it would have given an opportunity to the petitioner to deposit the shortfall if any or to furnish security for the aforesaid amount.

The revisional court in such circumstances, was not justified in rejecting the application''s recall application by taking a very narrow and rigid view in the matter. It is well established principle that technicalities should not be allowed to come in the way of dispensation of justice. Rules of procedure are meant to subserve and not to govern the cause of justice. The impugned order dated 13.2.1997 passed by respondent No. 1, therefore, cannot be sustained and the petitioner''s application for recalling the order dated 25.8.1995 has to be allowed.

In the aforesaid decision, it has been laid down that when a judgment has been wholly or partially given in favour of a party and if that judgment is challenged in appeal or revision, no adverse order can be passed against the successful party without giving him an opportunity of hearing and that service of notice for hearing is, therefore, essential in such circumstances.

Learned Counsel for the respondent submits that petitioner had not deposited the entire decretal amount which was a condition of the interim order passed by the revisional court. He further submits that till date the petitioner has not deposited the decretal amount, hence he cannot get benefit of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).

Having heard counsel for the parties and on perusal of the record, it is apparent that tenant petitioner was not having any order wholly or partly in his favour in the suit against which he filed the revision. Therefore, the ratio laid down in Girdhari Lal''s case will not be applicable to the facts and circumstances of the present case.

Furthermore, it is an admitted fact that tenant petitioner who is the tenant, had not deposited whole of the amount on the first date of hearing of the SCC revision towards arrears of rent and use of the accommodation in dispute with interest etc. as is required u/s 20(4) of the Act. It is apparent from record that petitioner moved the application later on before the court that his client is inclined to deposit the arrears of rent etc.

It is not in dispute at all that the petitioner had not complied with the conditions of interim order passed in SCC revision No. 60 of 2009, and therefore execution proceedings have not been stayed. It may be that the court below had overlooked the fact that application for extension of the interim order i.e. Paper No. 23 Kha was on record and for this reason, the order vacating interim order may be bad but in view of the admitted fact that petitioner had not complied with provisions of Section 20(4) of the Act as admitted by him, he cannot get the benefits provided in the said section even if the application for extension of the interim order was on record and the court failed to look into it.

It is clear from the perusal of provisions of Section 20(4) of the Act that legislature in its wisdom in order to protect the rights and interest of the landlord has provided that tenant has to deposit whole of the amount of arrears of rent alongwith interest etc. The Court therefore cannot in view of this express and mandatory provision hold that inspite of the fact that a tenant has not deposited arrears of rent, the court should grant relief as this interpretation would amount to an order against the legislature intent. Though it is well established principle of law that technicalities should not be allowed to come in the way of dispensation of justice but it is equally settled that while interpreting law, the Court should not legislate what has not been provided in the statute. The case of Girdhari (supra) is not applicable to the facts and circumstances of this case and is clearly distinguishable as stated above.

In the admitted facts and circumstances of the case, this Court is not inclined to interfere with the matter at this stage.

The writ petition is accordingly dismissed. No order as to costs.