PETITIONER:
HARIDEV MISRA
Vs.
RESPONDENT:
JAMUNADAS AGARWAL & ORS.
DATE OF JUDGMENT17/02/1989
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
SHETTY, K.J. (J)
AHMADI, A.M. (J)
CITATION:
1989 SCR (1) 756 1989 SCC (2) 112
JT 1989 (1) 356 1989 SCALE (1)455
ACT:
U.P. Urban Building (Regulation of Letting Rent and
Eviction) Act, 1972--Sections 3(i) and 20(2)(a)--Eviction of
tenant for default-Landlord raising a new plea that tenancy
was for furnished house-Whether permissible to raise such
plea.
HEADNOTE:
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.
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 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 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 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 explained 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
757
was for a furnished building and failure to pay a part of
the rent, in respect of furniture, would attract the provi-
sions of s. 20(2)(a) of 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,
HELD: It was never the case of the respondent at any
stage that furnished house was given on rent to the appel-
lant. 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
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 respondent admitted the contents of
the receipt but explained that Rs.30 towards furniture
charges was mentioned at the request of the tenant. [758G-H]
In the face of the clear admission by the .respondent in
the two receipts, the finding of the Revisional Court that
the monthly rent was Rs.70 is erroneous. [759D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 912 of
1989.
From the Judgment and Order dated 11.5.1988 of the
Allahabad High Court in Misc. W.P. No. 7886 of 1985.
Yogeshwar Prasad and Mrs. Shobha Dikshit for the Appellant.
758
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 elec-
tricity 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 not 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 peti-
tion afresh. Thereafter, the Revisional Court again allowed
the revision and set aside the judgment of the Trial Court
and ordered ejectment. The appellant again challenged the
revisional order by way of a writ petition before the Alla-
habad 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 39/C 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 furni-
ture charges were mentioned at the request of the defendant.
The plaintiff strongly relied upon the rent note 97/C where-
in monthly rent of the house was mentioned at Rs.70. The
Trial Court rejected the rent
759
note on the ground that the same was not signed by the
defendant. Basing its findings on the receipt 39/C, the
Trial Court dismissed the suit. The Revisional Court, on the
other hand, found force in the contention of the plaintiff
that the rent note 97/C was signed by the defendant. It was
held that the admission, if any, of the plaintiff in receipt
391C is contradicted by the rent note 97/C and as such
cannot be taken into consideration. The Revisional Court
thus differed from the Trial Court and ordered ejectment.
Before us, the counsel for the appellant Shri Prasad
contends that in the face of clear admission of the respond-
ent in the receipt 39/C the rent of the house was Rs.40 per
month. He further contents that the rent note, even if taken
into consideration, has been explained by the receipts 39]C
and 40/C. According to him Rs.70 per month mentioned in the
rent note has been explained in the receipts to be Rs.40 as
house rent and Rs.30 for the furniture. We find force in the
contention of the learned counsel. In the face of clear
admission by the respondent in the two receipts the finding
of the Revisional Court to the effect that the monthly rent
was Rs.70 is erroneous. Faced with this situation Shri
Satish Chandra, learned counsel for the respondent invited
our attention to Section 3(i) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 (here-
inafter called ‘the Act’) and contends that the tenancy was
for a furnished building and as such failure to pay even
Rs.30 in respect of furniture would attract the provisions
of Section 20(2)(a) of the Act and the appellant is liable
to be ejected. Section 3(i) and Section 20(2)(a) of the Act
are as under:
“Section 3(i)”building”, means a residential
or nonresidential roofed structure and in-
cludes–
(i) any land (including any garden),
garages and outhouses, appurtenant to such
building;
(ii) any furniture supplied by the
landlord for use in such building;
(iii) any fittings and fixtures affixed
to such building for the more beneficial
enjoyment thereof.
“Section 20(2)(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.”
760
Shri Satish Chandra contends that definition of building
under Section 3(i) includes any furniture supplied by the
landlord for use in such building and as such non-payment of
part of the rent meant for furniture would amount to arrears
of rent and the appellant having failed to pay the same is
liable to be ejected. In other words, he contends that it
was a furnished house which was let-out to the appellant. He
also contends that tenancy being of a furnished house, the
tenant could not under law unilaterally surrender part of
the tenancy by returning the furniture. There may be some
force in the abstract proposition of law canvassed by Shri
Satish Chandra on the basis of Sections 3(i) and 20(2)(a) of
the Act, but there is no basis for him in the present case
to advance the same. 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
written statement appellant took a clear stand that the rent
of the house was only Rs.40 and Rs.30 was for furniture
which, according to the appellant, he returned after the
commencement of the tenancy. The respondent filed a replica-
tion to the written statement of appellant. In Clause 3 of
the replication the respondent denied that either the rent
was Rs.40 per month or Rs.30 was being charged for furni-
ture. He stated that neither any such goods had been sup-
plied to the appellant by him nor the rent was agreed at
Rs.40 per month.
It is thus obvious from the pleadings that at no stage
the respondent pleaded that he had given furnished house on
rent to the tenant. Rather the supply of furniture was
categorically denied. In the face of clear pleadings on the
record it is impermissible to raise the plea that the land-
lord 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. Therefore, there
is no force in the contention of Shri Satish Chandra and the
same is rejected.
This Appeal is, therefore, allowed. The judgments of the
High Court and of the Revisional Court are set aside. The
judgment of the Trial Court is restored and the suit of
respondent is dismissed. There will be no order as to costs.
N.P.V. Appeal allowed.
761