@JUDGMENTTAG-ORDER
1. Being aggrieved by the dismissal of a revision filed by the petitioner u/s 25 of the Provincial Small Cause Courts Act challenging the judgment and decree dated 20-9-1989 of the trial Court in a S.C. Suit No. 94 of 1987 whereunder the petitioner was required to vacate the premises in dispute within 30 days, the defendant-petitioner approached this Court by means of the present writ petition wherein on 23-8-1990, notices were directed to be issued to the respondent No. 1, the plaintiff-decree-holder to show cause as to why the writ petition should not be admitted indicating that the petition will be disposed of at the admission stage itself. In pursuance of the aforesaid notice, the plaintiff-respondent has put in appearance and filed a counter-affidavit. Rejoinder-affidavit in reply thereto has also been filed by the petitioner.
2. I have heard the learned Counsel for the petitioner as well as the learned Counsel representing the plaintiff-respondent and have perused the record.
3. The facts of the case shorn of details and necessary for the disposal of this writ petition lie in a narrow compass. The plain- tiff-respondent had filed the suit praying for decree of ejectment of the petitioner from the premises in dispute alleging that the petitioner-tenant in spite of the repeated requests and notice dated 14-8-1987 served on him by registered post on 5-10-1987 had neither cleared all the arrears of rent nor vacated the premises in dispute. In the plaint it was clearly mentioned that the rent in respect of the premises in dispute for the period ending 31-8-1986 stood paid up but the rent for the period beginning from 1-9-1986 up to 5-11-1987 was due. In paragraph 2 of the plaint it was asserted by the plaintiff that in spite of the service of the notice dated 14-8-1987 he had not paid any amount of rent due till the date of verification of the plaint i.e. 11th November, 1987 and had not vacated the premises in dispute which had necessitated the filing of the suit. While disclosing the cause of action for the suit the plaintiff had indicated that the cause of action accrued for the first time when neither the amount of rent demanded in the notice was paid after one month nor the premises in dispute were vacated.
4. In the written statement filed by him the defendant-petitioner admitted the receipt of the notice referred to in paragraph 2 of the plaint. He further admitted that the notice sent by the plaintiff demanding the payment of arrears of rent and terminating the tenancy was received by him. He also admitted in paragraph 3 of the written statement that the rent, had become due w.e.f. 1-9-1986. In paragraph 12 of the written statement, the defendant had set up a plea that he had sent rent through two money orders which were not received and an application was filed u/s 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''Act'') seeking permission to deposit the rent there which application was pending. The defendant-petitioner also claimed benefit of Section 20(4) of the Act.
5. The trial Court after carefully considering the evidence and the materials on the record came to the conclusion that the defendant was a defaulter in payment of rent as contemplated u/s 20 of the Act and the trial Court further came to the conclusion that the notice sent by the plaintiff as required under Sec. 20(2)(a) of the Act was a valid notice and further that the defendant was not entitled to the benefit available under Sec. 20(4) of the Act as he failed to comply with the mandatory (sic) (mandatory provisions) under that provision. Consequently the suit was decreed as indicated above.
6. The revisional Court endorsed the findings recorded by the trial Court observing that the defendant had unequivocally admitted the receipt of the notice and it was nowhere pleaded as to how the notice was invalid. The revisional court further observed that none of the parties had examined any witness in the case and both the parties had made an endorsement on 1-9-1989 that they will not lead any evidence. The revisional court further observed that no argument had been advanced before him challenging the correctness of the finding of the trial Court so far as the applicability of Sec. 20(4) of the Act was concerned and the finding to the effect that the defendant was not entitled to the protection envisaged under the aforesaid provisions was not assailed before him. However, in spite of this the revisional court looked into the record and expressed his agreement with the finding recorded by the trial Court in this regard. The revisional court being of the view that the landlord had proved the fact that the defendant was in arrears of rent for the requisite amount and had been duly served with the notice of demand and had failed to pay the rent demanded within the time allowed, dismissed the revision.
7. In support of this writ petition, the learned Counsel for the petitioner has urged that the notice relied upon by the plaintiff was not a valid notice. The revisional court while considering this question had observed that the contention raised before him was that the notice in suit had not been proved. Regarding the illegality of the notice what had been urged before me was that the notice had not been signed by the plaintiff and it was not shown that it was sent under his instruction by the counsel. The revisional court had observed that the defendant had unequivocally admitted the receipt of the notice and had not pleaded as to how the notice was invalid. In this connection this should not be lost sight of that if a plea is denied then alone the question of its proof can arise. If allegations of fact are admitted or must be deemed to be admitted then there is no need to prove what is admitted or deemed to be admitted. However, there might be cases in which having regard to the nature of the circumstances, the court may insist upon the proof independent of such admission by non traverse. In the present case, I do not find any justifiable ground which could necessitate any insistence upon proof independent of admission contained in the written statement to which a reference has already been made above. The submissions of the learned Counsel for the petitioner about the invalidity of the notice are based on inferences for which there is neither any pleading nor proof and they are not at all acceptable''.
8. The learned Counsel for the petitioner has further urged that plaintiff-respondent had not come up with specific pleadings in the plaint that the rent was due for not less than four months and the same had not been paid within one month from the date of the receipt of the notice of demand and asserted that in the absence of such pleadings, the suit could not have been decreed. The learned Counsel heavily relied upon in this connection on the decision of the Apex Court in the case of
9. Section 20(1) of the Act prohibits institution of a suit for the eviction of tenant from a building notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner save as provided in sub-section (2) of Section 20(1) of the Act. This bar regarding the filing of a suit for a decree of eviction of a tenant from the building stands lifted on fulfillment of the conditions contemplated under Sec. 20(2) of the Act. The relevant portion of Section 20(2) of the Act is to the following effect;
"20(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
(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:
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year".
10. U. P. Act No. 13 of 1972 provides relaxation of the restriction imposed against filing of a suit for the eviction of a tenant on certain specified grounds like bona fide need or default in payment of rent etc. Thus, any right that the tenant could be deemed to possess to continue to occupy the building under tenancy after the termination of the tenancy can be only that which stands conferred on him only by virtue of the provisions contained in the Rent Control Act. A perusal of Section 20(1) and 20(2) of the Act makes it abundantly clear that the bar against the maintainability of the suit for eviction of a tenant from a building gets lifted once the plaintiff successfully establishes that the requisite conditions contemplated u/s 20(2) of the Act stand satisfied. The provisions contained in Section 38 of the Act provide that the provisions contained in the Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 and CPC 1908. Section 20(2)(a)of the Act provides that the suit for eviction of a tenant from a building after the determination of tenancy may be instituted on the ground that the tenant is in arrears of rent for not less than four months, and has filed to pay the same to the landlord within one month from the dale of service upon him of a notice of demand.
11. In the present case, as has already been noticed above, a perusal of the plaint shows that ail the necessary assertions of the fact had been made by the plaintiff and the defendant cannot be deemed to have been prejudiced in any manner in his defence. It had been clearly asserted in the plaint that the defendant was in arrears of rent for not less than four months and had failed to pay the arrears of rent to the landlord within one month from the date of service upon him of a notice of demand. These assertions are contained in paragraphs 2, 3 and 6 of the plaint. It may further be noticed that there is nothing in the Act which may lead to an inference that the plaintiff for maintaining a suit for the eviction of a tenant from a building after determination of the tenancy as contemplated u/s 20(2) of the Act must reproduce verbatim what is contained in Section 20(2)(a) of the Act or other clauses thereof in the plaint before he could be heard in support of any such ground on which the bar against the filing of the suit is claimed to have been lifted. What is required under S. 20(2)(a) of the Act is that the suit can be instituted on any one or more of the grounds stipulated therein. It is therefore, obvious that the requisite ground which had the effect of the lifting of the bar against the filing of the suit should clearly be there in the plaint so that the defendant-tenant may be in a position to put forward his defence traversing if necessary the factual foundation laid in the plaint in regard to the existence of the grounds which according to the plaintiff have the effect of lifting the bar against the filing of the suit. If the necessary facts in this regard are contained in the pleadings and no prejudice is caused to the tenant in his taking the defence, in that event the suit cannot be held to be not maintainable simply because the plaintiff had not reproduced verbatim the grounds mentioned in Section 20(2)(a) of the Act on which the eviction of the tenant is sought. There does not exist any such statutory requirement or a condition precedent for establishing the lifting of the bar against the filing of the suit.
12. A perusal of the decision of the Apex Court in the case of Smt. Vijai Laxmi Gangal (supra) relied upon by the learned Counsel for the petitioner indicates that the plaintiff in that case had not pleaded the relevant facts in the plaint with the result that the bar against the filing of the suit could not be deemed to have been lifted. What the Apex Court had emphasised in that case is that in the absence of the requisite pleadings in respect of the facts making out a ground for lifting the bar imposed against the filing of a suit for eviction of a tenant from a building the suit so filed should normally be dismissed for want of jurisdiction as in that case the lifting of the bar cannot be assumed. In the present case however, no such situation can be said to arise on the facts pleaded and established and there could be no impediment in proceeding on the basis that the bar against the filing of the suit stood lifted and the suit cannot be thrown out for want of jurisdiction or on account of its non maintainability. The decision in the case of Smt. Vijai Laxmi Gangal (supra) is distinguishable and the ratio thereof is not at all attracted in the facts and circumstances of the present case.
13. It is not disputed that the application seeking permission to deposit the rent in proceedings u/s 30 of the Act had been rejected and there was no such amount in deposit which could be deemed to have been paid up to the landlord as envisaged u/s 30 of the Act. Further the learned Counsel for the petitioner has fairly conceded that the finding recorded by the courts below holding that the tenant-petitioner was not entitled to the protection envisaged u/s 20(4) of the Act is not assailable as it does not suffer from any legal infirmity.
14. It should not be lost sight of that in the cases involving the ground of default in payment of the rent as contemplated u/s 20(2)(a) of the Act, the onus to show payment lies on the tenant. Mere oral testimony is not sufficient in this connection for discharging this heavy onus. A tenant alleging that the rent was paid but no receipt was issued by the landlord, in the absence of any explanation whatsoever for not sending the rent by postal money order, cannot be deemed to have discharged the heavy burden which stands cast upon him in this regard. As observed by the Apex Court in its decision in the case of Madan Mohan v. Krishna Kumar Sood, reported in 1993 (1) JT 162: 1993 AIR-SCW 743), whatever protection the Rent Acts give they do not give blanket protection for ''non payment of rent''. This basic minimum has to be complied with by the tenant. The Rent Acts do not contemplate that if one takes a house on rent he could continue to enjoy the same without the payment of the rent.
15. I have perused the impugned order with care and have no hesitation in concluding that it does not suffer from any such error must less manifest error of law which may justify any interference therein while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.
16. The writ petition is devoid of merit and is accordingly dismissed.
17. There shall be however, no order as to cost.
18. Petition dismissed.
