JUDGMENT
Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition under Article 226 of the Constitution has been filed for issuance of a writ, order or direction in the nature of certiorari for quashing the order dated 18.2.2006 passed by the Judge Small Causes Court, Kanpur Nagar in Suit No. 255 of 2002 and the order dated 19.7.2007 passed by the Additional District Judge, Kanpur Nagar in Revision No. 8 of 2007.
3. The petitioners have also prayed for issuance of a writ, order or direction in the nature of mandamus directing the courts below to pass order afresh in accordance with law and not to evict the petitioners from the tenanted house.
4. The dispute relates to a residential accommodation of House No. 509, Faithfulganj Cantonment, Kanpur Nagar, which was under the tenancy of one All Raza. The accommodation under the tenancy of All Raza consists of one room, one covered varandah and the roof, which remained under the tenancy of Ali Raza for about 60 years till his death, i.e., 1996.
5. It is claimed by the petitioners that they were normally residing with Ali Raza and inherited the tenancy rights from him who was residing in the aforesaid accommodation. They had also erected a tin roofed structure on the land of cantonment board just in-front of and apart from the tenanted accommodation of the petitioners.
6. It appears that the respondents had purchased the aforesaid house No. 509, Falthfulgnaj, Cantonment, Kanpur Nagar in which the petitioners were also tenants on 17.7.2001. Thereafter they gave notice dated 28.7.2001 to the petitioners which was replied by them vide reply dated 13.8.2001. Another notice dated 6.5.2002 was given to the petitioners which is said to have been returned on 8.5.2002 with the remark ‘Not claimed’. As the petitioners did not make compliance of the notices, their tenancy stood terminated, S.C.C. Suit No. 255 of 2002 was thereafter filed by the respondents against the petitioners for arrears of rent and ejectment on the ground of default in payment of rent.
7. The petitioners appeared in the suit and contested it by filing their written statement. In the written statement the stand taken by them was that they had not received or refused to accept notice dated 6.5.2002 and had only received one notice dated 28.7.2001 which was replied by them. It was further stated in their written statement that they were not defaulters in payment of any rent and that they have already made deposits of the rent due on the first date of hearing. The extent of the accommodation in dispute was also disputed by the petitioners inter alia, that the tenanted accommodation which was part of house No. 509, Faithfulgnaj, Cantonment, Kanpur Nagar under the tenancy of the petitioners constructed only of one room and not of two rooms as has been wrongly alleged in the plaint.
8. It is undisputed that the petitioners deposited the rent in the court below up to December, 2006 vide tender through lists 88-C/1 to 88-C/7.
9. The trial court on the basis of the pleadings of the parties framed three following issues.
1. Whether the notice sent by the plaintiffs is a legal notice?
2. Whether the defendants have complied with the provisions of Section 20(4) of U.P. Act No. 13 of 1972?
3. Whether the plaintiffs are entitled to any relief?
10. Issue No. 1 was decided in favour of the landlords holding that admittedly the notice dated 28.7.2001 was accepted by the petitioners and that the notice dated 6.5.2002 sent by registered post in respect of arrears of rent is said to have been returned with the remark ‘Not claimed’ was also served at their address and was in the knowledge of the petitioners. The trial court relying upon paragraph 3 of the written statement of the petitioners held that the notice dated 28.7.2001 was admittedly served on the petitioners and that another notice dated 6.5.2002 sent by registered post which has been returned back with the remark ‘Not claimed’ will be presumed to be served as the petitioners had demanded photo copy of sale deed in pursuance thereof. The relevant finding of the trial court in this regard is as under:
blds i’pkr oknh fnukad 6-5-2002 dks izfroknh ds ;gka cdk;k fdjk;s dh ekax o csn[kyh gsrq ,d uksfVl Hkstk tks fnukad 8-5-2002 ukV DysEM gksdj okil vk;h A tgka rd izfroknhx.k dk iz’u gS rks mUgksus vius tckc nkos ds iSjk 3 es ;g dgk gS fd oknh }kjk uksfVl dk fn;k tkuk ,oa mldk tckc Hkstk tkuk Lohdkj gSA izfroknhx.k us uksfVl ds tckc es oknh ls cSukek dh Nk;k izfr;ka ekaxk Fkk A ysfdu oknhx.k us tkucw>dj mls izfroknh ds ikl ugh Hkstk A oknh }kjk uksfVl dh dkcZu dkih dkxt la[;k 7x o jlhn jftLVªh dkxt la[;k 8x rFkk fyQkQk la[;k 9x@1 ‘kCn izLrqr fd;k x;k gSA fyQkQk 9x@1 ‘kCn ukV DysEM fy[kk gqvk gS A ,slh fLFkfr es ;g ekuk tk;sxk fd izfroknh ds ;gka uksfVl iathd`r Mkd ls Hksth x;h Fkh ftls mls ugh fy;k vkSj fyQkQk okil gks x;h A pwfd izfroknh }kjk izfrokn i= ds iSjk 2 es ;g Lohdkj fd;k x;k gS fd mUgs uksfVl feyh Fkh bldk mUgksus c[kwch tckc fn;k Fkk A ,slh fLFkfr es ;g ekuk tk;sxk fd oknh }kjk Hkstk x;k uksfVl izfroknh dks feyh Fkh tks ,d oS/k uksfVl Fkh A mijksDrkuqlkj fcUnq la0 1 fuLrkfjr fd;k tkrk gSA
11. In so far as issue No. 2 regarding compliance of Section 20(4) of U.P. Act No. 13 of 1972 is concerned, the court below relying upon the case of Sri Ram Agarwal v. Smt. Shila Devi 2005 ARC 205 : 2005 (1) AWC 874, held that as the petitioners had not deposited the rent within one week of the date on which it became due, hence they cannot get the benefit of Section 20(4) of U.P. Act No. 13 of 1972. The court below further held that since the petitioners had not complied with the provisions of Section 20(4) of U.P. Act No. 13 of 1972 read with Order XV, Rule 5 of the Code of Civil Procedure they were not entitled to any relief.
12. Decreeing the suit vide order dated 18.12.2006 the court below directed the petitioners to handover peaceful and vacant possession of the disputed accommodation to the plaintiffs within one month and that the plaintiffs were also entitled to recover a sum of Rs. 428 as arrears of rent apart from Rs. 158.36 paise taxes and Rs. 40 pendente lite and future damages.
13. The petitioners preferred S.C.C. Revision No. 8 of 2007 before the revisional court, Kanpur Nagar which also confirmed the findings of the trial court vide judgment dated 19.7.2007.
14. In the meantime, respondents also filed Execution Case No. 7 of 2007 before Judge, Small Causes Court, Kanpur Nagar in which an order was passed for delivery of possession fixing 13.8.2007.
15. The counsel for the petitioners has not been able to point out any illegality or infirmity in the impugned orders. The only contention of the counsel for the petitioner is that the registered notice dated 6.5.2002 which has been returned with the remark as ‘Not claimed’ means that it has not been served upon the petitioners and as such, the court below has committed an illegality in holding that service of the notice dated 6.5.2002 is sufficient.
16. He further submits that the petitioners have deposited Rs. 1,900 towards rent due on the first date of hearing before the court below as such the finding of the court below that sufficient compliance of Section 20(4) of U.P. Act No. 13 of 1972 has not been made is incorrect and that illegality has been committed by the revisional court in confirming the judgment of the trial court.
17. It appears that this point was earlier raised by the petitioners before the revisional court. After considering the evidence and arguments of the counsel, the Court repelled this argument regarding sufficiency of service of notice dated 6.5.2002 by relying upon the statement of witness Mohd. Sayeed D.W. produced in their support who was also party in the case. These witnesses accepted receipt of the aforesaid two notices by the petitioners. The Court in view of the evidence held that in fact the notice was served upon the petitioners but thereafter it was returned with the remark ‘Not claimed’ and that the service of two notices is proved from the averments of the defendants revisionist also as such the findings of the trial court were in accordance with law. The relevant extract of the finding of the revisional court is as under:
fuxjkuhdrZkx.k ds fo}ku vf/koDrk dk izFke rdZ ;g gS fd tks uksfVl fnukad 6-5-2002 dks foi{khx.k dh rjQ ls izsf”kr dh x;h FkhA mldk rkehyk fuxjkuhdrkZx.k ij ugh gSA v/khuLFk U;k;ky; }kjk bl uksfVl dks Hkh Ik;kZIr ekudj fuxjkuhdrkZx.k ds fo:) izfrdwy vkns’k ikfjr fd;k x;k gSA bl lEcU/k es i=koyh dk voyksdu fd;k x;k foi{khx.k dh rjQ ls fnukad 6-5-2002 dks tks uksfVl izsf”kr dh x;h Fkh] og ^^ukV DysEM^^ ds :i es foi{khx.k dks iqu% okil gqbZ gSA bldk rkRi;Z ;g gS fd fdlh fuxjkuhdrkZ }kjk bl uksfVl dks Dyse ugh fd;k x;k A fuxjkuhdrkZx.k dh rjQ ls ewy okn es crkSj foi{kh Mh- MCyw- 1 Jh eks0 lbZn dk c;ku ntZ djk;k x;k gSA ;g xokg izLrqr izdj.k es i{kdkj Hkh gSA blds }kjk 2 uksfVlks dk feyuk Lohdkj fd;k x;k gSA vius c;ku ds ist la[;k&3 es bl xokg }kjk ;g Lohdkj fd;k x;k fd igyh uksfVl 2002 es vkSj nwljh uksfVl 2003 ;k 2004 es mls izkIr gqbZ FkhA foi{khx.k }kjk izkjEHk ls gh ;g dgk tk jgk gSA fd mlds }kjk dsoy 2 uksfVls mUgs izkIr gqbZ Fkh A vr% blls ;g Li”V gS fd fuxjkuhdrkZx.k ij nksuks uksfVlks dh rkehyk Ik;kZIr Fkk A esjh jk; es v/khuLFk U;k;ky; }kjk okn fcUnq la[;k&1 dk fuLrkj.k djrs le; uksfVlks dh rkehy dks Ik;kZIr ekuk tkuk] fof/k leer gSA
18. As regards other point regarding deposit of rent under Section 20(4) of U.P. Act No. 13 of 1972 on the first date of hearing the revisional court found from the evidence on record, i.e., the tender lists that Rs. 1,900 was deposited on 27.3.2004 in the court below and, thereafter the rent has been deposited1 on 7.4.2004, 18.1.2005, 23.7.2005, 4.1.2006 and 3.8.2006 which itself prove that the petitioners were not depositing the rent month to month as provided in Explanation 1 to Order XV, Rule 5, C.P.C. hence the petitioners were rightly found to have defaulted in payment of regular rent in view of the judgment rendered in Sri Ram Agarwal (supra).
19. It is apparent from the record itself that the petitioners’ witness has admitted the position of receipt of two notices dated 28.7.2001 and 6.5.2002. Even otherwise, from the registered A.D. notice dated 6.5.2002, which has been served upon the petitioners’ correct address it appears that knowing from the senders address on the notice that the notice was from the landlords they did not claim it as ‘peshbandi’. In the instant case, from the evidence given by the petitioners’ witness itself it appears that the notice was served on them but they did not claim it, hence the courts below have rightly come to the conclusions on the basis of evidence and admission made by the petitioners’ witness who was also a party in the case that they had received the two notices. The revisional court relying upon the case of Sri Ram Agarwal (supra) has rightly held that the petitioners were not entitled to the benefit of Section 20 (4) of U.P. Act No. 13 of 1972 read with Order XV, Rule 5 of the C.P.C. as they have not faithfully complied with the provisions of law in letter and spirit. This is also apparent from the evidence on record, i.e., tender lists paper Nos. 88-C/1 to 88-C/7 submitted by the petitioners from which it is established that they had made default in payment of rent for more than 4 months.
20. For the reasons stated above, the writ petition is dismissed. No order as to cost.