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Smt. Krishna Devi And Others v. Mahavir Prasad And Others
Structured Summary of Opinion by S. U. Khan, J.
Factual and Procedural Background
This is a tenants' writ petition arising from S.C.C. Suit No. 290 of 1987 instituted by landlord respondent No.1, Mahavir Prasad, against the original tenant Mahesh Prasad for eviction on the ground of default and recovery of rent. The subject premises is a residential ground-floor house in Ram Bagh, Kanpur City, comprising one room, verandah, kitchen and common courtyard. The trial court (11 A.D.J., Kanpur Nagar) decreed the suit by judgment and decree dated 22.3.1994. The original tenant, thereafter deceased and survived by the petitioners, filed S.C.C. Revision No. 64 of 1994, which was dismissed by V A.D.J., Kanpur Nagar by judgment and order dated 8.2.2001. The tenant(s) challenged the decision by filing this writ petition.
Notice of termination of tenancy and demand of rent was sent by the landlord on 4.8.1986 and served on 6.8.1986, demanding rent from 10.3.1985 to 9.7.1986. The tenant's case is that the landlord stopped accepting rent from 10.3.1985; the tenant attempted to send rent through money-orders on three occasions (14.5.1985, 13.6.1985 and 10.7.1985) which the landlord refused to accept, and that the tenant subsequently deposited rent under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Sec. 30 deposit case was allowed on 20.11.1985. The tenant's deposit history under Section 30 (as pleaded in Para 11 of the written statement and reproduced as Annexure-3 to the writ petition) included multiple lump-sum deposits covering various multi-month periods up to 20.2.1987.
Legal Issues Presented
- Whether the trial and revisional courts were correct in holding that documents (money-order coupons and receipts) contained in the file of the earlier Section 30 case, when that file was summoned in the eviction suit, were not proved in the suit?
- Whether the tenant was a defaulter of four or more months at the time the landlord's notice (dated 4.8.1986) was sent, having regard to deposits under Section 30 of the U.P. Urban Buildings Act?
- Whether, in granting relief to a tenant (or in maintaining tenant-protective relief), the writ court is empowered to enhance rent to a reasonable extent?
Arguments of the Parties
Landlord's Case / Contentions
- The landlord instituted S.C.C. Suit No. 290 of 1987 for eviction on the ground of default and recovery of rent (rate Rs. 23 per month).
- Implicit in the courts below' findings: documents found in the file of the Section 30 case were not proved in the suit and the postman was not examined to prove refusal on money-order coupons (this reflects the landlord's successful assertion before the lower courts that the Section 30 file evidence was insufficient).
Tenant's Case / Contentions
- The landlord stopped accepting rent from 10.3.1985; the tenant sent rent by money-orders on 14.5.1985, 13.6.1985 and 10.7.1985, which were refused by the landlord.
- Consequently, the tenant instituted a case under Section 30 of the U.P. Urban Buildings Act (registered as Misc. Case No. 925/70 of 1985), filed money-order coupons and receipts in that case, and deposited rent under Section 30—first deposit on 23.9.1985 for the period 10.3.1985 to 9.9.1985—with further deposits up to 20.2.1987.
- When the termination notice dated 4.8.1986 was received, the tenant claimed he was not in arrears of four months or more because rent had already been deposited up to 9.6.1986 (deposit on 12.7.1986 covered 10.2.1986 to 9.6.1986).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Khursheeda v. A.D.J., 2004 (2) ARC 64; 2004 (1) AWC 851 | Held that while granting relief against eviction to a tenant (or maintaining such relief), the writ court is empowered to enhance the rent to a reasonable extent. | The court relied upon this authority as precedent for enhancing rent in the present writ petition while upholding tenant protection. |
| M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602 | It was held that it is essential to provide for periodical enhancement of rent under rent control acts; frozen rents give rise to lawlessness and landlords may resort to extralegal means. | The court relied on this Supreme Court authority (as cited in Khursheeda) to justify the concept of rent enhancement and to show the rationale for allowing courts to require reasonable enhancement. |
| Satyawati Sharma (Dead) by L.Rs. v. Union of India and another, (2008) 5 SCC 287 | Affirmed principles including that legislation reasonable at enactment may become arbitrary with time; courts may strike down classification if rationale ceases; paras 29 and 34 were quoted. | The court noted that Satyawati Sharma followed the reasoning in M.V. Acharya and quoted paras to support the view that legislative fixation of rent can become irrational over time, supporting enhancement principles. |
| Malpe Vtshwanath Acharya and others v. State of Maharashtra and another (referred in Satyawati) | The Court found criteria for determination/fixation of rent by freezing had become irrational and arbitrary but did not strike it down due to the extended period of the Bombay Rent Act coming to an end on 31.3.1998 (as stated in para 34 of Satyawati). | Cited within the Satyawati discussion; used to exemplify the Court's recognition that frozen rent-fixation criteria can be irrational with lapse of time. |
| Shangrila Food Products Ltd. v. Life Insurance Corporation of India, AIR 1996 SC 2410 | High Court exercising jurisdiction under Article 226 can take cognizance of entire facts to give complete and substantial justice; the court can require a party to shed any unfair advantage gained prior to invoking High Court jurisdiction—an equity principle. | The court relied upon paragraph 11 of this authority to support the proposition that a writ court can require a tenant to shed an unfair advantage (such as immunity from rent enhancement) when granting equitable relief. |
| H. M. Kichlu v. A.D.J., 2004 (2) ARC 652 | Held that the principle of enhancing rent to a reasonable extent may be applied while dismissing a landlord's writ petition, thereby approving tenant protection while requiring reasonable rent. | The court cited this decision to demonstrate that the same enhancement principle applies both when granting tenant relief and when dismissing landlord challenges—supporting the present application of enhancement. |
Court's Reasoning and Analysis
The court conducted a step-by-step analysis grounded in documentary proof, statutory procedure and precedent:
- Evidence from Section 30 case file: The court disagreed with the lower courts' holding that mere presence of money-order coupons and receipts in the summoned Section 30 file did not amount to proof in the suit. The court held, expressly, that original documents in the file of a case which has been summoned are "as good as filed in the case in which file of the earlier case has been summoned."
- Presumption regarding postman's endorsement: The courts below had criticized the absence of the postman’s oral examination to prove refusal endorsements on money-order coupons. This court observed that there is a presumption that a refusal endorsement made by the postman (a Government servant) is correct, supporting the tenant's reliance on the money-order coupons/receipts in the Section 30 file.
- Timeline and effect of Section 30 deposits: The court analysed the tenants' pleaded deposit chronology (as per Para 11 of the written statement/Annexure-3). The deposits include a deposit on 23.9.1985 covering 10.3.1985–9.9.1985, further deposits (including one on 12.7.1986 covering 10.2.1986–9.6.1986) and subsequent deposits up to 20.2.1987. Given these deposits, when notice dated 4.8.1986 was served, the tenant was not in default of four or more months because rent till 9.6.1986 had been deposited.
- Relevance of late deposits: Although the courts below noted that deposits under Section 30 were sometimes late, the present court held that such lateness did not change the legal position because, at the time the landlord's notice was sent, the relevant rent periods had already been deposited under Section 30.
- Equity and enhancement authority: The court referred to its prior decisions and Supreme Court authorities (M.V. Acharya, Satyawati Sharma, Shangrila) to reiterate that a writ court exercising equitable jurisdiction under Article 226 can require a tenant to shed any unreasonable or unfair advantage conferred by rent-control protection—hereby validating the court's power to enhance rent "to a reasonable extent" when it upholds tenant protection.
- Interim agreement and final direction on enhancement: The court recorded that at reservation of judgment (1.7.2008) the petitioners' counsel agreed that if the writ petition were allowed, the tenant would continue to pay rent at Rs. 1,000 per month as directed by an interim order dated 19.9.2006. On that basis, and consistent with the cited authorities, the court directed that the tenant shall continue to pay and is liable to pay enhanced rent at Rs. 1,000 per month to the landlord.
Holding and Implications
Holding: The court's dispositive rulings are set out below.
DISPOSITION:
- Writ petition allowed.
- The judgments under challenge — the trial court's judgment and decree dated 22.3.1994 and the revisional court's order dated 8.2.2001 — are set aside.
- The landlord's suit is dismissed.
- Rent is enhanced to Rs. 1,000 per month; the tenant is directed to continue to pay rent at Rs. 1,000 per month to the landlord.
Immediate consequences for the parties: The tenant(s) are protected from eviction under the impugned decree, while simultaneously being required to pay enhanced rent of Rs. 1,000 per month. The landlord's claim for eviction and recovery under the decrees set aside is dismissed.
Broader implications: The opinion applies and reiterates the judge's prior view (and Supreme Court authority) that a writ court exercising equitable jurisdiction can enhance rent to a reasonable extent when upholding tenant protection. The opinion does not purport to strike down statutory provisions; it applies established authorities to justify an enhancement order in the particular circumstances of this case.
S. U. Khan, J. -
Heard learned counsel for the parties.
2. This is tenants' writ petition. Landlord respondent No. 1, Mahavir Prasad filed S.C.C. Suit No. 290 of 1987 against Mahesh Prasad the original tenant for his eviction on the ground of default and recovery of rent. Rate of rent is Rs. 23 per month. Property in dispute is a residential house situate on the ground floor in Ram Bagh, Kanpur City and contains one room, verandah, kitchen and common courtyard. The trial court 11 A.D.J., Kanpur Nagar decreed the suit through judgment and decree dated 22.3.1994. Original tenant Mahesh Prasad since deceased and survived by the petitioners filed S.C.C. Revision No. 64 of 1994 against judgment and decree passed by the trial court. V A.D.J., Kanpur Nagar, through judgment and order dated 8.2.2001 dismissed the revision, hence this writ petition.
3. Notice of termination of tenancy and demand of rent was sent on 4.8.1986 and was served upon the tenant on 6.8.1986. In the said notice, rent from 10.3.1985 till 9.7.1986 was demanded.
4. Tenants' case is that landlord stopped accepting rent from 10.3.1985, hence tenant sent the rent through money-orders thrice but all the money-orders were refused to be accepted by the landlord, hence tenant deposited the rent under section 30 of u. p. urban buildings (regulation of letting, rent and eviction) act, 1972. The said case was allowed on 20.11.1985. Suit was filed on 21.4.1987. In the case, under Section 30 of the Act, tenant had deposited the rent till February, 1987.
5. According to the tenant, he sent the rent through money-order on the following dates:
(i) 14.5.1985.
(ii) 13.6.1985.
(iii) 10.7.1985.
6. The case under Section 30 of the Act instituted by the tenant was registered as Misc. Case No. 925/70 of 1985. Money-orders coupons and receipts were filed by the tenant in the said case and the file of the said case was summoned in the suit giving rise to the instant writ petition.
7. The courts below held that the mere fact that the file of the case under Section 30 of the Act had been summoned and money-order, coupons and receipts were available on the said file did not mean that the said money-order coupons and receipts were proved in the suit also. I do not agree with this finding in the least. Original documents in the' file of a case, which has been summoned, are as good as filed in the case in which file of the earlier case has been summoned. Courts below held that postman was not examined to prove the refusal on the money-order coupons. There is always a presumption that refusal endorsement made by the postman, who is Government servant, is correct. In the case, under Section 30 of the Act, the rent was for the first time deposited on 23.9.1985, which was for the period from 10.3.1985 to 9.9.1985. The courts below held that the order permitting the tenant to deposit the rent in the case under Section 30 of the Act was passed by the Munsif on 18.9.1985 and notice of the said case had been served upon the landlord but he did not appear. The courts below held that in case even under Section 30, rent on several occasions was deposited late. However, in my opinion, the said fact will not make any difference as at the time when notice was sent by the landlord, rent for four months was not due in the sense that it had been deposited under Section 30 of the Act.
8. The details of deposit made by the tenant under Section 30 of the Act as given in Para 11 of his written statement filed before the trial court, copy of which is Annexure-3 to the writ petition, are as follows:
"Six months' rent from 10.3.1985 to 9.9.1985 deposited on 23.9.1985.
Three months' rent from10.12.1985 to 9.2.1985 deposited on 7.3.1986.
Four months' rent from 10.2.1986 to 9.6.1986 deposited on 12.7.1986.
Four months' rent from 10.6.1986 to 9.10.1986 deposited in August, 1986.
Three months' rent from 10.10.1986 to 9.1.1987 deposited on 20.2.1987."
9. Accordingly, when notice dated 4.8.1986 was received by the tenant he was not defaulter of four or more months as on 12.7.1986 rent till 9.6.1986 had already been deposited.
10. Accordingly, writ petition is allowed. Both the impugned judgments, decree of the trial court and order of revisional court are set aside. Suit of the landlord is dismissed.
11. I have held in Khursheeda v. A.D.J., 2004 (2) ARC 64: 2004 (1) AWC 851 and H. M. Kichlu v. A.D.J., 2004 (2) ARC 652, that while granting relief against eviction to the tenant in respect of building covered by rent control act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.
12. In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602, where it was held that it was essential to provide for periodical enhancement of rent under the rent control acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (Dead) by L.Rs. v. Union of India and another, (2008) 5 SCC 287: 2008 (71) ALR 499, part of Para 29 and Para 34 of which are quoted below:
"29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent.
34. In Malpe Vtshwanath Acharya and others v. State of Maharashtra and another (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same' on the ground that extended period of bombay rent act was coming to an end on 31.3.1998."
13. Under U. P. rent control act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (Section 9A) or Government is tenant (Section 21 (8)J. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court in Shangrila Food Products Ltd. v. Life Insurance Corporation of India, AIR 1996 SC 2410, paragraph 11 of which is quoted below:
"It is well-settled that the High Court in exercise of its jurisdiction under article 226 of the constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief."
14. Thereafter in Para 8 of the aforesaid authority of Khursheeda, I held as under:
"rent control act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the rent control act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of Immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.F.P. v. L.I.C., AIR 1996 SC 2410, has laid down that while granting relief to a party the writ court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the rent control act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said rent control act. The writ court therefore while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the rent control act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the rent control act to barter his protection from arbitrary eviction provided for by the said Act."
15. Thereafter in H. M. Kitchlu v. A.D.J., 2004 (2) ARC 652, I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so writ court approves the protection of rent control act granted to the tenant by the courts below.
16. In this writ petition, after hearing learned counsel for the parties, judgment was reserved, on 1.7.2008, by the following order:
"Heard learned counsel for the parties.
Judgment reserved.
Learned counsel for the petitioners has agreed that in case writ petition is allowed then he will willingly continue to pay the rent of Rs. 1,000 per month as directed by interim order dated 19.9.2006 passed in this writ petition."
17. Accordingly, it is directed that tenant shall continue to pay rent @ Rs. 1,000 per month to the landlord respondent. Rent is enhanced to Rs. 1,000 per month and tenant shall continue to pay the said rent to landlord.
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