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Judgment
A.K. Yog, J.—J. S. C. C. Suit No. 3 of 1981 was filed by Narsingh Das Agrawal (Plaintiff-Respondent No. 3) against Krishna Nand Vishwakarma (Defendant-Petitioner) claiming, inter alia, amongst others, that said plaintiff was owner and landlord of a residential accommodation, (described in the plaint- of said suit filed as Annexure-1 to the counter- affidavit) wherein defendant-petitioner was tenant at the rate of Rs. 12 per month. The defendant having committed default in payment of rent for more than four months, notice u/s 106, Transfer of Property Act (for short called TPA) was sent, which was, admittedly, received by the defendant-petitioner on November 3, 1980. Copies of the notice u/s 106. TPA sent by plaintiff respondent No. 3 and the reply given by the defendant-petitioner against the same have been annexed as Annexures-RA 1 and RA 2 to the rejoinder-affidavit. Annexure-RA 2 is dated December 17, 1980, which is doubtful in view of the averments contained in paragraph 7 of the plaint (Annexure-1 to the counter-affidavit) wherein it is mentioned that plaintiff received reply against notice u/s 106. TPA on December 2, 1980.
The defendant-tenant contested the said suit by filing written statement (Annexure-2 to the counter-affidavit) and it was admitted that notice u/s 106, TPA was received on November 3, 1980, rent was being paid, but receipts, in lieu thereof, were not issued by the landlord and sometimes landlord refused to receive rent without lawful excuse and that being constrained, defendant had deposited rent by filing an application u/s 30, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972), for short called ''the Act'' which was registered as Rent Case No. 176 of 1980 in the court of Munsif, Ballia. The defendant-tenant further claimed that rent was being deposited u/s 30 of the Act. The defendant-tenant claimed that certain receipts were issued, some of which were with him while some were lost. The defendant-tenant also claimed in paragraph 6 of the written statement that he has filed an application u/s 20 (4) of the Act and entitled to immunity from ejectment u/s 20 (4) of the Act.
There were two innings before the Court of Judge Small Causes before the matter came up before this Court in present writ petition. initially Judge Small Causes Court vide judgment and order dated April 24. 1981 held that defendant-tenant was entitled to the benefit of deposits u/s 30 of the Act, plaintiff was not entitled to the decree for eviction against the tenant, but only entitled to the entire amount deposited by the defendant both in that Court as well as u/s 30 of the Act. A true copy of the said judgment and order dated April 24, 1981 has been annexed as Annexure-3 to the counter-affidavit.
A true copy of the application u/s 20 (4) of the Act filed by defendant has been annexed as Annexure-4 to the counter-affidavit. Perusal of the said application shows that defendant claimed benefit of deposits made before and after receipt of notice u/s 106. TPA on the ground that unless plaintiff expressed his willingness in writing by giving notice after receiving defendant''s reply against Notice u/s 106, TPA, defendant was Justified in depositing rent u/s 30 of the Act and such deposits were valid deposits which could not be ignored while considering application u/s 20 (4) of the Act. Stand taken by the defendant as mentioned above is borne out from Ground No. 7 contained in memorandum of Revision No. 11 of 1982-copy of which has been produced by petitioner during course of arguments. Petitioner filed objections against the said application ; a true copy of the same has been annexed as Annexure-5 to the counter-affidavit.
The plaintiff being aggrieved filed S.C.C. Revision No. 28 of 1981 under- Section 25. Provincial Small Causes Court Act against judgment and order dated April 24, 1983 referred to above. The revisional court allowed the revision and remanded the case back for fresh decision by means of judgment and order dated September 5, 1981 (Annexure-1 to the Writ Petition).
Case having been received or remand, as indicated above, the Judge Small Causes Court by means of the Impugned Judgment and order dated March 2, 1982 (Annexure-7 to the writ petition) held that the deposits made by defendant u/s 30 of the Act after receipt o demand notice u/s 106 TPA were not valid and taken into account u/s 20 (4) of the Act. The trial court observed, that defendant admitted that he had received demand notice and thereafter he made deposits u/s 30 of the Act. Such deposits, according to the trial court, could not be said to be valid deposits and consequently, ''defendant could not claim any benefit of such deposit u/s 20 (4) of the Act. The trial court also referred to the remand order (Annexure-1 to the writ petition) and supported his conclusion on the basis of the said judgment dated September 5, 1981.
The defendant-petitioner feeling aggrieved filed J.S.C.C. Revision No. 11 of 1982 and said revision has been dismissed by respondent No. 1 vide Judgment and order dated October 14, 1982 (Annexure-3 to the writ petition).
The revisional court has in its impugned judgment, observed that only point pressed before it was that the finding contained in the order of remand dated September 5, 1981 [Annexure-1 to the writ petition) could not be said to be binding on the Courts below while matter was decided by them afresh. The revisional court, however, accepted the contention of the plaintiff, relying upon two decisions, e.g. Benaras Education Society Junior High School v. Vth Additional Disirict Judge 1980 UPRCC 360 and Jasraj Inder Singh Vs. Hemraj Multanchand, .
The revisional court proceeded on the basis that the Judgment and order dated September 5, 1981 (Annexure-1) rendered by the District Judge, Ballia, had already determined the issue by holding that the deposits made by defendant after receiving notice u/s 106, TPA were not valid deposits.
I have heard the learned counsels for the parties.
At the outset, it may be stated that the tenant-petitioner has challenged all the three orders, to order of remand dated September 5. 1981 (Annexure-1). March 2, 1982 passed by Judge Small Causes Court (respondent No. 2) in compliance to the order (Annexure-2) and the revisional order passed by respondent No. 1 dated October 14, 1983 (Annexure-3) and has prayed that all the said orders be quashed by issuing writ of certiorari. Paragraph 20 of the writ petition contains legal grounds. Order of remand dated September 5, 1981 (Annexure-1) has been challenged n merits on Ground Nos. I. II and III. Ground Nos. IV and V seek to challenged the correctness of the impugned judgment dated March 2, 1981 and October 14, 1982 (Annexures-2 and 3).
Perusal of the remand order dated September 5, 1981, shows that District Judge while passing the said order met none of the arguments made on behalf of the plaintiff and thereafter, without recording reasons, jumped over to the conclusion. The said order of remand is thus, a non-speaking order and one cannot find out as to how the said Court reached to the conclusion. The said order is cryptic and after noting arguments it contains operative portion. It cannot be ascertained as to what was the basis for the said Court to hold that deposits made u/s 30 of the Act after receipt of demand notice by the defendant were not valid.
Defendant-petitioner submits that deposit made u/s 30 of the Act, even after receiving notice u/s 106, TPA have to be taken into account as valid deposits and the same could not be ignored unless plaintiff-respondent No. 3 signified his willingness to accept rent directly in view of the reply sent by the defendant.
Petitioner submits that deposits u/s 30 of the Act cannot be ignored. Petitioner places reliance on following decisions :
Hemraj a. Smt. Maheshwari Devi. 1979 RCC 141 (Paras 13 and 14) :
Mukut Behari Seth and others v. IInd Additional District & Session Judge, Kheri 1989 ARC 283;
Kamleshwar Singh Srivastava v. IVth Additional District Judge and others. 1987 (1) ARC 1 (SC);
Sobaran Singh v. Prakash Chandra Gupta. 1996 (2) ARC 440;
Mahendra Nath Tandon v. VIth Additional District Judge and others. 1997 (I) ARC 140 20
Krishna Manohar Dhawan v. Vllth Additional District Judge and others, 1983 ARC 823 ;
Haztari Lal v. 1st Additional District Judge AIR 1981 CJ 53.
Respondent has, however, relied upon the following decisions :
Smt. Sushila Deui v. Ramai. 1978 RCC 507 (Paras 4 and 5) ;
Mohaminadoo Khan v. Raji Ghulam Rasul 1972 ALJ 420 (Para 9) ;
Allah Bux v. 1st Additional District Judge, Nainital. 1995 (1) ACR 385 :
Lal Mohammad v. IInd Additional District Judge. Allahabad 1993 (1) ARC 55 :
Jasraj Inder Singh Vs. Hemraj Multanchand, , (Para 14).
I need not refer to the aforementioned decisions in view of the fact that this Court is of the opinion that the impugned orders deserve to be set aside inasmuch as none of the Courts below have recorded findings on relevant issues labouring under impression that the remand order dated September 5, 1981 (Annexure-1) contained finding which was binding on these Courts.
Plaintiff respondent No. 3 alleges that notice u/s 106, TPA dated October 25, 1980 contains a clear instruction for the defendant to pay rent to the plaintiff.
This Court, however, does not feel Inclined to go into the merits on the question of validity of deposits u/s 30 of the Act at this stage In absence of complete record.
In the present case, none of the two Courts below applied their mind nor recorded finding to the effect that notice u/s 106. TPA contains express willingness of the plaintiff to accept rent so as to disentitle the defendant from making deposits u/s 30 of the Act.
As the record stands before this Court, it will not be safe to record finding on any of the Issues, which required to be decided by the Courts below.
The learned counsel for the petitioner then submitted that revisional court has committed manifest error apparent on the face of record in observing that the findings recorded in the remand order were binding on respondent No. 1. and he has relied upon the following decisions :
(1) Jasraj Inder Singh Vs. Hemraj Multanchand, .
(2) 1998 (2) ARC 6
(3) Kalyani Prasad v. Vllth Additional District Judge and others 1982 11 ARC 569 (M. P. Mehrotra, J.).
It may be stated that in the case Jasraj Inder Singh Vs. Hemraj Multanchand, . It has been held that even if finding recorded in a remand order be res-judicata upon court of co-ordinate jurisdiction, the legality of such findings can be seen by the higher Court. This shows that High Court can go into the merit of the case and determine whether conclusions/ findings recorded in the remand order dated September 5, 1981 (Annexure-1) can be said to be res-Judicata. As already stated above, the remand order does not contain reasons and, thus, suffers from manifest error apparent on the face of record. The decision in the case of Kalyan Prasad (supra) lends support to the stand taken by the petitioner and in view of the fact that petitioner has also challenged the remand order dated September 5, 1981 (Annexure-1) in the present case, petitioner cannot be shut out from challenging the finding, if any, recorded in the remand order and it is open for this Court to scrutinise and find out as to whether the Courts below have approached and dealt with the matter in accordance with law.
This Court finds, after perusing the record, as it stands, that none of the Courts below applied their mind and have failed to decide the following questions :
(1) Whether notice u/s 106, TPA (copy of which has been filed as Annexure-RA-1 contains recital expressing on the part of plaintiff "willingness'' to accept rent?
(2) Whether deposits made by the defendant u/s 30 of the Act, prior and after the receipt of notice u/s 106, TPA were valid?
(3) Whether plaintiff-landlord was aware of the proceedings u/s 30 of the Act. If so, when he came to know of It and its effect?
(4) Whether the procedure contemplated under Sections 30 (1) to 30 (6) of the Act were validly followed or not so as to render deposits as valid?
(5) Whether deposits made u/s 30 of the Act in Misc. Case No. 176 of 1980 in the court of Munsif. Ballia were valid?
(6) Whether rent for four months within the meaning of Section 20 (4) of U. P. Act XIII of 1972 was due or not?
(7) Whether defendant was defaulter or not, on the basis of appraisal of evidence as alleged by respective parties in their pleadings?
In view of the above, there is no scope but to set aside the impugned judgment and order dated March 2, 1982 and October 14. 1982 (Annexures-2 and 3) remand the case back to the Judge Small Causes Court (respondent No. 2) to decide J.S.C.C. Suit No. 3 of 1981, Narsingh Agrrwal v. Krishana Nand Vishwakarma, with direction to decide afresh after noting points to be determined in the light of the observations made above as well as the case law which may be cited by the respective parties before it within four months of receipt of certified copy of this judgment.
The writ, petition stands allowed. No order as to costs.