Smt. Sudama Devi vs Vijay Nath Gupta

Smt. Sudama Devi & Ors. ….Appellant(s)

VERSUS

Vijay Nath Gupta & Anr. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is filed by the legal representatives

of the defendant(tenant) against the final judgment

and order dated 14.03.2011 passed by the High

Court of Judicature at Allahabad in Civil Misc.Writ

Petition No.17758 of 1998 whereby the High Court

dismissed the petition filed by the defendant and

upheld the order dated 22.04.1998 passed by the

Additional District Judge-XI, Gorakhpur in Civil Signature Not Verified Digitally signed by ASHA SUNDRIYAL Revision No.15 of 1997 by which he dismissed the Date: 2018.04.17 17:22:40 IST Reason: 1 revision filed by the defendant and confirmed the

order dated 02.08.1997 passed by the Small Causes

Court in Small Cause Case No.42 of 1986.

2. In order to appreciate the issue involved in the

appeal, few relevant facts need to be mentioned

infra.

3. The appellants are the legal representatives of

original defendant - Chandrabhan Singh - who died

during the pendency of the civil suit whereas the

respondents are legal representatives of Parasnath

Gupta, Manager of the plaintiff-Shri Ramchander Ji,

owner of the suit house.

4. The plaintiff claiming to be the landlord of the

suit house filed a civil suit through his Manager

against the defendant-Chandrabhan Singh for his

eviction from the suit house. The plaintiff, inter alia,

alleged that Chandrabhan Singh was his monthly

tenant living in the suit house. It was alleged that

the defendant has all along been in arrears of rent

2 inasmuch as he failed to pay the monthly rent from

January 1977 onwards to the plaintiff.

5. It was further alleged that the defendant paid

a sum of Rs.656.25 to the plaintiff, which the

plaintiff adjusted against part of the arrears up to

May 1980. It was alleged that despite the

adjustment being made, the arrears still remained

unpaid and default in payment of monthly rent

continued to persist and hence notice for eviction

and demand of arrears of rent was given by the

plaintiff to the defendant followed by filing of the

civil suit claiming a decree for eviction of the

defendant from the suit house and arrears of rent

against the defendant. The plaintiff sought a decree

for the defendant's eviction from the suit house on

the ground of non-payment of arrears of rent as

specified under Section 20(2)(a) of the Uttar Pradesh

Urban Buildings (Regulation of Letting, Rent and

Eviction) Act, 1972 (hereinafter referred to as “the

Act”).

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6. The defendant denied the averments made in

the plaint and joined issues. One of the grounds

raised by the defendant was that the provisions of

the Act do not apply to the suit house because the

suit house is the property of the Charitable Trust.

7. Issues were framed. Parties adduced their

evidence. The Trial Court by its judgment/order

dated 02.08.1997 passed the decree for eviction and

arrears of rent. It was held that the suit is

maintainable, that the provisions of the Act are

applicable, that the defendant was a defaulter in

payment of monthly rent and its arrears, and that a

ground under Section 20(2)(a) of the Act is made out

against the defendant for his eviction from the suit

house. Accordingly, the decree for defendant’s

eviction from the suit house was passed.

8. The defendant felt aggrieved and filed a civil

revision before the Additional District Judge,

Gorakhpur. By order dated 22.04.1998, the

Additional District Judge dismissed the revision and

4 confirmed the judgment and decree of the Trial

Court.

9. It may be mentioned here that one question

was also raised by the parties in the case, namely,

whether any case under Section 20(4) read with its

proviso was made out by the parties or not?

10. It was the case of the plaintiff (landlord) that

the defendant is not entitled to take any benefit of

Section 20(4) of the Act to avoid the decree of

eviction passed against him under Section 20(2)(a)

of the Act because his son, who is a member of the

tenant’s family, as defined under Section 3(g) of the

Act, has built his own house in the same city and

hence the defendant’s case would fall under proviso

to Section 20(4) of the Act which would make

Section 20(4) inapplicable to the tenant. The

defendant opposed this contention on facts stating

that his son lives separately from him and hence

proviso will not apply. The contention of the

plaintiff was upheld by the Revisional Court (ADJ)

5 and accordingly the eviction decree passed under

Section 20(2)(a) of the Act against the defendant was

confirmed by denying the defendant the benefit of

Section 20(4) of the Act.

11. The defendant felt aggrieved and filed writ

petition under Article 227 of the Constitution of

India before the High Court. By impugned order,

the Single Judge of the High Court dismissed the

writ petition and upheld the order of the Revisional

Court (ADJ) and also affirmed all the findings of fact

recorded by the Trial Court, giving rise to filing of

this appeal by the defendant (tenant) by way of

special leave in this Court.

12. Heard Mr. Nagendra Rai, learned senior

counsel for the appellants and Mr. Bhuvan Mishra,

learned counsel for the respondents.

13. Learned senior counsel for the appellants while

assailing the legality and correctness of the

impugned order argued only one point.

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14. Learned counsel, by referring to Sections 20(2)

(a) and 20(4) of the Act, submitted that eviction

decree passed under Section 20(2)(a) of the Act is

always subject to ensuring compliance of Section

20(4) of the Act. Learned counsel contended that the

defendant/tenant was able to prove that he is

entitled to claim benefit of Section 20(4) of the Act

whereas the plaintiff has failed to prove that the

defendant’s case fell under proviso to Section 20(4)

so as to deprive the defendant from taking benefit of

sub-Section (4) of Section 20 and avoid the decree

for eviction passed against him under Section 20(2)

(a) of the Act.

15. Learned counsel further urged that since the

defendant/tenant did not construct his own house

though his son constructed the house in the same

city but since his son was living separately from

him, the proviso to Section 20(4) of the Act had no

application to the case. It was his submission that

the defendant was, therefore, entitled to claim the

7 benefit of Section 20(4) of the Act and the eviction

decree passed against him under Section 20(2)(a)of

the Act is liable to be set aside.

16. In reply, learned counsel for the respondents

supported the impugned order and contended that

it does not call for any interference.

17. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in the appeal.

18. Section 3(g), Section 20(2)(a) and Section 20(4)

of the Act which are relevant for this case read as

under :

“ Section 3(g)

“family” in relation to a landlord or tenant of a building, means, his or her-

(i) spouse;

(ii) male lineal descendants

(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a

8 legal right of residence in that building

Section 20(2)(a)

(a) That 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:

Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the Prescribed Authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words “four months” in this clause shall be deemed to have been substituted by the words “one year”.

Section 20(4)

In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord’s costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:

9 Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.”

19. Reading of Section 20(4) of the Act would go to

show that when a landlord files a suit against his

tenant seeking his eviction from the tenanted

premises on the ground of arrears of rent as

specified under Section 20(2)(a) of the Act, the Court

has a discretion to pass a decree for eviction against

the tenant, in case the Court finds that the tenant

has ensured compliance of the requirements of

Section 20(4) of the Act by depositing the rent, its

arrears and damages together with interest as

specified therein.

20. In other words, if the Court finds that the

tenant has ensured compliance of conditions

specified in sub-section (4) of Section 20 of the Act

at the first hearing of the suit filed by his landlord

10 for his eviction on the ground of arrears of rent

under Section 20(2) of the Act, it is the discretion of

the Court to either pass a decree for eviction against

the tenant or relieve him from the rigor of the

eviction decree.

21. The proviso, however, provides that

sub-section(4) of Section 20 of the Act will not

apply, if it is proved that a tenant or any member of

his family, has either built or otherwise acquired the

house in a vacant state, or has got vacated after

acquisition, any residential building in the same

city, municipality, notified area or town area.

22. In our opinion, in order to attract the proviso,

three facts need to be proved. First, the tenant or

any member of his family, as specified under

Section 3(g), has either built or otherwise acquired

any residential building; Second, such residential

building is in a vacant state; and third, such vacant

residential building is situated in the same city,

11 municipality, notified area or town area where the

suit tenanted premises is situated.

23. Once these three facts are proved, the proviso

would apply against the tenant disentitling him to

claim the benefit of sub-section (4) of Section 20 to

avoid decree for his eviction passed against him

under Section 20(2)(a) of the Act.

24. The main reason behind enacting such proviso

is that the tenant, in such circumstances, would

not suffer any hardship, if he is asked to vacate the

tenanted premises pursuant to eviction decree

passed against him on the ground of arrears of rent

under Section 20(2)(a) of the Act because he or any

member of his family has built house or acquired it

and got its vacant possession situated in the same

city. Such tenant can, therefore, shift in the house

of member of the family.

25. The submission of learned counsel for the

defendant (tenant) was that in cases where the

tenant's son is living separately from his

12 father(tenant) in his own house then such tenant

cannot be made to suffer the eviction decree once he

complies with the requirements of sub-section(4) of

Section 20.

26. In other words, the submission was that it is

only when any member of tenant's family is living

with the tenant in the tenanted premises and if he

owns any vacant residential building in the same

city, the tenant can be deprived of the benefit of

sub-section(4) of Section 20 but not otherwise. We

find no merit in this submission.

27. In our view, the language of proviso being plain

and simple leaving no ambiguity therein, we cannot

read the words of the proviso, the way learned

counsel for the appellant wants us to read therein to

accept his submission. In our view, if such was the

intention of the legislature, then the proviso would

have been worded accordingly. Such is, however,

not the case here.

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28. In the light of the foregoing discussion, we

concur with the reasoning and the conclusion

arrived at by the Courts below and accordingly hold

that the tenant, having rightly suffered a decree for

eviction on the ground contained under Section

20(2)(a), is not entitled to take the benefit of

sub-section(4) of Section 20 because his case falls

under the proviso to sub-section(4) by virtue of the

fact that his son, who is member of family being a

male lineal descendants as specified under Section

3(g)(ii) of the Act, has built his residential house in

the same city and he is in its possession. The

tenant can, therefore, shift in the said house once

he is asked to vacate pursuant to eviction decree

passed against him.

29. The appeal thus fails and is accordingly

dismissed. The appellants are, however, granted

three months’ time to vacate the suit house

provided they deposit the entire arrears of rent till

date, if they have not so far deposited or paid to the

14 respondents and also to deposit three months’ rent

by way of damages for use and occupation within

two weeks from the date of order in the Court below.

Failure to make deposit and submit an undertaking

by the appellants to this Court within two weeks to

vacate the suit premises within three months will

entitle the respondents to execute the decree

forthwith on the expiry of two weeks.

………...................................J. [R. K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE]

New Delhi;

April 17, 2018

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