Civil Revision Nos. 327, 373 and 369 of 2011. Case: Ashwani Kumar Kohli Vs Rajesh Prasad Agrawal and Another. High Court of Allahabad (India)
| Case Number | Civil Revision Nos. 327, 373 and 369 of 2011 |
| Counsel | For Appellant: Ravi Kiran Jain and Vishnu Gupta, Advs. and For Respondents: A.K. Shukla, Anup Kumar, Divya Kumar Awasthi, M.K. Gupta, Zafar M. Naiyer and Syed Ali Murtaza, Advs. |
| Judges | Prakash Krishna, J. |
| Issue | Cantonments Act, 1924 - Sections 257, 65; Code of Civil Procedure, 1908 - Rule 4; Constitution of India - Article 136; Provincial Small Cause Courts Act, 1887 - Section 25; Transfer of Property Act, 1882 - Sections 114, 20, 20(4) |
| Citation | 2012 (9) ADJ 679, 2012 (4) AWC 3935 |
| Judgement Date | May 15, 2012 |
| Court | High Court of Allahabad (India) |
Judgment:
Prakash Krishna, J.
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All these three revisions were heard together and they arise out of judgment dated 31st of May, 2011 passed by the Judge, Small Causes Court/Additional District Judge, Court No. 10, Kanpur Nagar in SCC Suit No. 56 of 2004. Revision No. 327 of 2011 has been preferred by the tenant against his eviction decree, passed in favour of two landlords namely Rajendra Prasad Agrawal and Om Prakash Agrawal. It was treated as lead case by the learned counsel for the parties. The defendant tenant who has filed the above revision, hereinafter referred to as tenant and the plaintiff landlords hereinafter referred to as landlord No. 1 Rajesh Prasad Agrawal and landlord No. 2 Om Prakash Agrawal.
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The property No. 562 A, S.K. Building Rail Bazar situate just opposite to Kanpur Railway Junction, a three storeyed building is the subject-matter of the dispute between the parties. Indisputably, the landlords are owners of the property in question. It consists of one big hall on ground floor, store and kitchen, twelve rooms on the first floor and one big hall on the second floor. In the year 1946 the said property was let out on a monthly rent of Rs. 1,000/- to late Munshi Ram Kohali, father of the present tenant, by Kamta Prasad, the ancestors of landlords.
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SCC suit No. 56 of 2004 giving rise to these revisions was instituted by the landlord Nos. 1 and 2 against the tenant for eviction on the ground that the building in dispute was taken on rent for running a hotel business and it has been put to inconsistent user by opening a bar therein without consent of the landlord as envisaged in Section 20(2)(d) of the U.P. Act No. 13 of 1972.
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The suit has been filed on the pleas inter alia that the tenant has paid the rent up to 31st December, 1979 and has deposited the rent in Court w.e.f. 1st of October, 1979 to 31st of December, 1979 in Misc. Case No. 84/70 of 1980 and thereafter he has not paid any rent. The tenant has also started the hotel business in the accommodation in suit in the name and style of Central Hotel and also established a dormitory in the big hall by letting it out unauthorizedly without there being any permission by the landlords. The tenant has also started a bar by obtaining a bar licence. A legal notice dated 27.6.2004 was given. It was replied on 17th of July, 2004 on incorrect facts. It was further pleaded that arrears of rent w.e.f. 1st of September, 2001 to 2nd of August, 2004 amounting to Rs. 35,064.50 is within time and the arrears of rent w.e.f. 1st of January, 1980 to 31st of August, 1981 being time barred is not being claimed.
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By way of amendment in the plaint para 6A was added therein which provides that since the very inception of tenancy the defendant (tenant) is using and utilizing the entire accommodation in suit for hotel, restaurant and bar purposes. As per the Government order of the State, hotel business shall be deemed to be a factory and as such is exempt from the operation of the U.P. Act No. 13 of 1972.
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The suit was contested by denying the plaint allegations but the relationship of landlord and tenant was admitted. The liability of water tax at the rate of 18 per cent was denied. In para 4 it was stated that no portion of tenanted accommodation is being used and utilized as dormitory, contrary to system of hotel business. The customers are permitted to stay one or two days. It was further stated that running of bar is not against public policy as the same is being done as per licence granted by the State of U.P.. The plea that the tenant is in arrears of rent was refuted by pleading that he has paid a sum of Rs. 2,84,000/- to the Cantonment Board as per the notice issued under Section 65/ 257 of the Cantonment Act of 1924 beginning from 10th of June, 1980 to 15th of March, 2004 as detailed in para 10 of the written statement. It was further stated that the cantonment is realising water tax at the rate of 11.50 per cent and that the defendant(tenant) is entitled to seek protection of Section 20(4) of the Act.
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In the additional written statement, reply to para 6 A of the plaint has been given. It has been pleaded that in the notification issued by the State Government nowhere it provides that hotel business shall be deemed as factory for the purposes of the U.P. Act No. 13 of 1972. In other words, the provisions of U.P. Act No. 13 of 1972 are applicable.
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On the basis of the pleadings of the parties, the trial Court framed four issues for determination, enumerated in the judgment.
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The trial Court on issue No. 1 has held that the provisions of U.P. Act No. 13 of 1972 are applicable to the building in question and the notification relied upon by the landlords is not applicable so far as the provisions of the U.P. Act No. 13 of 1972 are concerned. Under issue No. 2, notice dated 27.6.2004 determining the tenancy was found valid. Under issue No. 3, it came to the conclusion that the tenant has put the building to use for a purpose other than for which it was let out, without the written consent of the landlords and is therefore, liable for eviction. On this ground decree for eviction was passed. Under issue No. 4 the trial Court in absence of any contrary evidence except the payment of taxes to the tune of Rs. 2,84,000/- to the Cantonment Board by the tenant, held that the said amount shall be given set off towards the arrears of rent. On the first date of hearing the tenant has deposited Rs. 80,000/-. The tenant has, thus, deposited Rs. 8,069.30 in excess and therefore is entitled to get the benefit of Section 20(4) of the Act. In other words, he was found in arrears of rent but he was relieved from eviction by extending the benefit as provided for in Section 20(4) of the Act. Therefore, the decree of eviction on the basis of default in payment of rent was not passed.
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Challenging the aforesaid judgment and decree, primarily the finding returned under issue No. 3, the revision No. 327 of 2011 has been preferred by the tenant. The two landlords who were original plaintiff Nos. 1 and 2 filed separate revisions being revision Nos. 369 and 737 of 2011. The landlords have sought decree for eviction on the ground of subletting also. Certain documents by way of additional evidence were produced in the revisions by them to support the above plea of subletting.
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All the three revisions were heard together.
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Sri Ravi Kiran Jain, learned senior counsel alongwith Sri Vishnu Gupta appeared on behalf of the tenant, learned Senior Counsel Sri Zafer M. Naiyer alongwith Sayed Murtaza Ali appeared on behalf of Om Prakash Agrawal (landlord No. 2) and Shri M.K. Gupta on behalf of the landlord No. 1, Rajesh Prasad Agrawal.
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Sri Ravi Kiran Jain, learned senior counsel for the tenant, submitted that the finding returned by the trial Court under issue No. 3 legally and factually is incorrect. The various paragraphs of the plaint were referred by him to show that since the very inception, the property in dispute was let out for hotel purposes. Bar in the modern times is essentially part of hotel business. Opening a bar in a portion of the tenanted accommodation after obtaining licence from the concerned excise authority does not in any manner amount the change of user of the tenanted accommodation for a purpose other than it was let out, submits the counsel for the tenant.
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In reply, Sri Zafer M. Naiyer, learned senior counsel and Sri M.K. Gupta, Advocates, supports the judgment and decree of the Court below and submitted that the landlords never agreed to run' bar, restaurant etc. from the tenanted accommodation. The purpose of letting was hotel and hotel alone.
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Considered the respective submissions of the learned counsel for the parties and perused the record. It is desirable to have a look to the pleadings of the parties in this regard. The plaint consists of only nine paragraphs and it appears that the relevant averments in this regard have been made in paragraphs 5 and 6A thereof. It may be placed on record that except the aforesaid two paragraphs none of the counsel for the parties invited the attention to any other portion of the plaint. For the sake of convenience, paragraphs 5 and 6A are reproduced below:
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That the defendant, has also started a Bar by obtaining a Bar Licence which also opposed the Public Policy for which the plaintiff has already issued a notice dated 27.6.2004 through their counsel Sri H.R. Siddiqui, Advocate which notice was personally served upon the defendant on 3.7.2004. Not only this, the defendant has also replied the said notice through his counsel Sri Ajai Bhalla on the basis of untrue and incorrect facts.
6-A. That since the very inception of tenancy the defendant is using and utilizing the entire accommodation in suit for Hotel restaurant and bar purposes. As per Government Order of the State Hotel purpose shall be deemed to be a factory and as such is exempted from the operation of U.P. Act No. 13 of 1972.
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A reading of the paragraph No. 5 would show that the landlord initially pleaded without specifying the date of commencement of starting of bar that the opening of bar is opposed to the public policy. Nothing more and nothing less has been said therein. In para 6A which was introduced through the amendment subsequently, the landlords have come out with the case that the tenant from very inception of tenancy is using and utilizing the entire accommodation in suit for hostel, restaurant and bar purposes. In the next sentence it has been added that in view of the Government order, the State of U.P. has treated the hotel business as a factory, with which at the present moment we are not concerned.
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Reading of plaint as a whole indicates that the accommodation in suit was let out for the hotel business.
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Section 20 of the U.P. Act No. 13 of 1972 in Chapter IV provides for regulation and eviction of tenant. Its sub-section (1) says that no suit for eviction shall be instituted against a tenant from a building...
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