HARIDEV MISRA v. JAMUNADAS AGARWAL & ORS

Citation: [1989] 1 S.C.R. 756

Court: Supreme Court of India

Bench: K. JAGANNATHA SHETTY, A.M. AHMADI, KULDIP SINGH

Case summary

This appeal arises out of a suit filed by respondent (plaintiff) landlord in the Court of ‘l The trial court dismissed the suit holding that the rate of rent was Rs.

Judgment text

HARIDEV MISRA v. JAMUNADAS AGARWAL & ORS. FEBRUARY 17, 1989 (K. JAGANNATHA SHE'ITY, A. M. AHMADI AND KULDIP SINGH, JJ. ] U. P. Urban Building (Regulation of Letting Rent and Eviction) Jppw‘msk Act, I972—Secti0ns 3(i) and 20(2) (a)——Eviction of tenant for default— Landlora' raising a new plea that tenancy was for furnished house— Whetherpermissible to raise such plea. The respondent-landlord filed a suit for eviction of the appellantstenant from the house in question on the ground of failure to pay rent and for realisation of arrears of rent. While the respondent pleaded that the rate of rent was Rs. 70 per month, the appellant contended that it was only Rs. 40 and not Rs. 70, and that he was paying Rs. 30 per month for the furniture, provided by the landlord which he returned sometime after the tenancy commenced. ‘l The trial court dismissed the suit holding that the rate of rent was Rs. 40 per month and, as such, the appellant was not defaulter.

In the revision filed by the respondent, the Revisional Court held that the rent m“ was Rs. 70 per month. The appellant filed a writ petition before the High Court, which quashed the revisional order and remanded the case for ”\. A""‘ deciding the revision petition afresh. Thereafter, the revisional court again allowed the revision. The appellant challenged the revisional order before the High Court which dismissed the same. In the appeal, by special leave, it was contended on behalf of the 1 appellant-tenant that in the face of clear admission of the respondent in \ the receipt, the rent of the house was Rs. 40 per month, and that the amount of Rs. 70 per month mentioned in the rent note had been ex- plained in the receipts, to be Rs. 40 as house rent and Rs. 30 for furniture. .. -¢‘~"’~ On behalf of the respondent, it was contended that the tenancy HARIDEV MISRA v. JAMUNADAS AGARWAL 757 was for a furnished building and failure to pay a part of the rent, in attract the of s.

20(2)(a) of respect of furniture, would provisions the U. P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 and the appellant was liable to be ejected. It was also contended that the tenancy being of a furnished house the tenant could not under law, unilaterally surrender part of tenancy. Allowing the appeal, if HELD: It was never the case of the respondent at any stage that furnished house was given on rent to the appellant. In the notice before filing the suit and in the plaint, it was specifically pleaded that rent of the house was Rs. 70 per month and the tenant was in arrears. In the —" t written statement, appellant took a clear stand that the rent of the house was only Rs. 40 and Rs. 30 was for the furniture, which according to him, was returned after the commencement of the tenancy. [760C-D] In the face of clear pleadings on the record, it is impermissible to raise the plea that the landlord rented a furnished house to the tenant.

It would be contrary to the pleadings. That apart, neither before the trial court nor before the Revisional Court and not even before the High Court this plea was raised. [760F] The trial court relied upon the rent receipts, 39/C and 40/C, produced by the appellant. It was clearly mentioned in the receipt 39/C that Rs. 40 were towards house rent and Rs. 30 towards furniture charges and Rs. 3 towards water and electricity charges. The resadmitted the contents of the receipt but that pondent explained of Rs. 30 towards furniture the the charges was mentioned at request tenant. [758G-H] In the face of the clear admission the two by, the, respondent in Revisional Court that the receipts, the finding of the monthly rent was Rs. 70 is erroneous. [759D] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 912 . of 1989. From the Judgment and Order dated 11. 5. 1988 of the Allahabad Misc. W. P. 7886 of 1985. High Court in No. Prasad and Mrs. Shobha Dikshit for the Yogeshwar Appellant.

Satish Chandra and Madan Lokur for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted. This appeal arises out of a suit filed by respondent (plaintiff) landlord in the Court of Judge, Small Causes, Gorakhpur, for eviction of the appellants (defendant) tenant from the house in question on the ground of failure to pay the rent and for realisation of arrears'of rent and electricity charges amounting to Rs. 2,560. 60. It was pleaded that the tenant was to pay a monthly rent of Rs. 70 apart from Rs. 3 per month as water and electricity charges and was in arrears since July, 1979 which he failed to pay. The appellant contested the suit mainly on the ground that the rate of rent was not Rs. 70 per month but it was only Rs. 40 and besides that he was provided with furniture by the landlord for which he was paying Rs. 30 per month. His case further was that some time after the tenancy commenced, he returned the furniture.

The Judge, Small Causes Court, by his judgment dated 10th November, 1983, dismissed the suit holding that the rate of rent was Rs. 40 per month and as such the appellant was riot a defaulter. The respondent filed a revision which was allowed by the Additional District Judge, Gorakhpur. The Revisional Court held that the rate of rent was Rs. 70 per month. The appellant filed a writ petition against the revisional order before the Allahabed High Court. The High Court allowed the writ petition, quashed the revisional order and remanded the case for deciding the revision petition afresh. Thereafter, the Revisional Court again allowed the revision and set aside the judgment of the Trial Court and ordered Vi ‘r ejectment. The appellant again challenged the revisional order by way of a writ petition before the Allahabad High Court but the same was dismissed. Hence this appeal. The Trial Court primarily relied upon documents 39/C and 40/C produced by the defendants.

Document 3910 is a receipt by the plaintiff wherein details of Rs. 73 are given. It is clearly mentioned in the receipt that Rs. 40 were towards house rent, Rs. 30 towards furniture charges and Rs. 3 water and electricity charges. The plaintiff admitted the contents of receipt 39/C but he explained that Rs. 30 towards fumiture charges were mentioned at the request of the defendant. The plaintiff strongly relied upon the rent note 97/C wherein monthly rent of the house was mentioned at Rs. 70. The Trial Court rejected the rent g HARIDEV MISRA v. JAMUNADAS AGARWAL [SINGH, J. ] 759 same not the, defendant. note on the that the was signed by ground the Trial Court diSmissed the Basing its findings on the receipt 391C, force in the suit. The Revisional Court, on the other hand, found con- tention of the that the rent note 97/C was signed by the plaintiff in defendant.

It was held that the admission, if any, of the plaintiff 5 contradicted the rent note 97/C and as such cannot receipt 39/C is by Revisional Court thus differed from be taken into consideration. The the Trial Court and ordered ejectment. b Shri Prasad Before us, the counsel for the appellant contends in the 39/C that in the face of clear admission of the respondent receipt month. further contends‘that the rent of the house was Rs. 40 He per has by the rent consideration, been note, even if taken into explained month the receipts 39/C and 40/0 According to him Rs. 70 per in the to be mentioned in the rent note has been explained receipts furniture. We find force in the Rs. 40 as house rent and Rs. 30 for the the In the face of clear admission contention of the learned counsel. by in the two the of the Revisional'Court to respondent receipts finding with the effect that the rent was Rs. 70 is erroneous.

Faced monthly for the this situation Shri Satish Chandra, learned counsel respondent the UP. Urban Buildings invited our attention to Section 3(i) of of and Eviction) Act, 1972 (Regulation Letting, Rent (hereinafter was for a furnished called ‘the Act’) and contends that the tenancy as such failure to Rs. 30 in building and even of furniture pay respect Act and the would attract the of Section of the provisions 20(2)(a) Section of is liable to be Section and 20(2)(a) appellant ejected. 3(i) the Act are as under: or “Section means a residential non— 3(i) “building’s, includes— residential roofed structure and and outgarages (i) any land (including any garden), to such houses, appurtenant building; the landlord for use in such (ii) any furniture supplied by building; and fixtures affixed to such building for (iii) any fittings the more beneficial thereof”. enjoyment for “Section “that the tenant is in arrears of rent 20(2)(a).

failed to the same to not less than four months, and has pay from the date of service the landlord within one month of notice of demand. ” upon him a SUPREME COURT REPORTS [1989] 1 S. C. R. Shri Satish Chandra contends that definition of Section 3(i) includes building under any furniture supplied by the landlord for such use in building and as such non—payment of part of the rent meant furniture would for amount to arrears of rent and the failed to appellant having pay the same is liable to be ejected. In other contends that it was a words, he furnished house which was let-out to the appel~ proposition of law canvassed by Shri Satish Chandra on Sections the basis of 3(i) and 20(2)(a) of the Act, but the there is no basis for him in present case to advance the same. It was never the case of the N. P. V. Appeal allowed.