1. Heard Sri Ashwani Kumar Mishra, learned counsel for the petitioner and Sri Arvind Srivastava, learned counsel for the respondent.
2. This petition has been filed under Article 227 of the Constitution of India praying for setting-aside the order dated 04.08.2021 passed by Additional District and Session Judge, F.T.C, Court No-1 (Crime against women), Gorakhpur, in S.C.C Revision No. 26 of 2016 (Sarla Gupta Vs. Subhashchand Gupta).
3. The plaintiff/respondent (landlady), Smt. Sarla Gupta, instituted a S.C.C Suit No. 13 of 2013 praying for a decree of arrears of rent and ejectment of the defendant/petitioner (tenant) on the ground that the house in dispute was constructed by its earlier owner, Samiullah and others in August, 1985. The plaintiff purchased the house in dispute vide two sale deeds dated 17.06.2011 and 25.11.2011. The defendant became tenant of the shop situated below the house in dispute after its construction on 01.09.1985 on the rent of Rs.350/- per month apart from house tax and water tax and is using the same as godown. Subsequently, the rent was increased and he has paid the rent @ Rs.585/- per month till October, 2011. After purchasing the property, the plaintiff gave immediate notice to the defendant that she has become owner of the godown in dispute wherein the defendant was tenant since before the purchase of the property by the plaintiff and he admitted her ownership. Thereafter, he is not paying the rent and other taxes since November, 2011. The provisions of The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No. 13 of 1972') do not apply to the shop in dispute. The plaintiff sent a legal notice dated 12.03.2013 to the defendant through her counsel but he did not vacated the shop in dispute. He replied to the notice stating that it is based on incorrect facts. No money order regarding the arrears of rent was sent by the defendant. If the disputed godown is let out at present, it will be on the rent of less than Rs.5,000/- apart from taxes.
4. The defendant filed his written statement partly denying the contents of the plaint and stated that the notice of the plaintiff dated 12.03.2013 was issued on incorrect facts and was duly replied by the defendant through his counsel on 09.05.2013. The defendant is living in the house since the time of the earlier owners and there is no shop in the same. The provisions of U.P. Act No. 13 of 1972 apply to the property in dispute. When the house was let out by the earlier owners to the defendant, it was very old construction. The disputed shop was let out by the earlier owners, Samiullah and others to the defendant. There are two more shops let out to the husband of the plaintiff, Lal Chand, who is the real brother of defendant and in the other shop, Nawab Ali, is the tenant. The aforesaid shops were earlier made of "khaprail" and in 1984-85, in place of old shops, the present shops were constructed after repair and since then the defendant is tenant of the same. The information about the transfer of ownership of the shop was given to him only by the notice in this case and not prior to that. After receiving the notice, he immediately went to the plaintiff and offered her rent in lieu of receipt which she refused. After three days, he again tried to give her the rent but she refused. He sent an amount of Rs.9945/- through money order on 01.05.2013 to the plaintiff which was refused by her. Thereafter, he has deposited the due amount of rent along with counsels' fees, taxes etc., in court on the first day of hearing of suit and therefore, he is entitled to protection u/s 20 (4) of U.P. Act No. 13 of 1972.
5. The trial court framed seven issues in the suit on the basis of the pleadings of the parties. The first issue was whether the plaintiff is entitled to the arrears of rent of Rs.11,248/- and Rs.5,000/- per month towards damages. The second issue was whether the notice was illegal. The third issue was whether the provisions of U.P. Act No. 13 of 1972 do not apply to the case. Issue no. 4 was whether the suit is barred by Section 20 of U.P. Act No. 13 of 1972. Issue no. 5 was whether the defendant is entitled to benefit of Section 20 (4) of U.P. Act No. 13 of 1972. Issue no. 6 was whether the suit is barred by Order 7, Rule 3 C.P.C and the seventh and last issue was as to what relief is the plaintiff entitled to.
6. The parties led their respective evidence before the trial court. Issue no. 1 was decided by the trial court against the plaintiff holding that since she has not entered into the witness box to prove the plaint averments, therefore, the plaintiff's case does not stands proved. It recorded the finding that the husband of the plaintiff was not competent to prove the facts pleaded in the plaint and therefore, the issue no. 1 was decided against the plaintiff. While deciding issue no. 1, the trial court held that since on the next date of hearing of the suit, the entire arrears of rent, taxes, cost, etc., was deposited by the defendant before the court, therefore, there was no default on his part in the payment of rent and held that he is not entitled to eviction on this ground.
7. Issue no. 2 as to whether the notice given by the plaintiff was illegal, was decided in her favour. Issue nos. 3, 4 and 5 were also decided in favour of the plaintiff holding that from the own admission of the defendant, it is clear that the shop in dispute was constructed in the year 1985 and therefore, it is a new construction whereon the provisions of U.P. Act No. 13 of 1972 do not apply. It was further held that the defendant is not entitled to protection of Section 20(4) of U.P. Act No. 13 of 1972.
8. Issue no. 6 was decided holding that the burden of proving that the suit of the plaintiff is barred by Order 7, Rule 3 C.P.C, was on the defendant which he has failed to prove and therefore, it was decided against the defendant. Therefore, the trial court dismissed the suit of the plaintiff by the judgement and decree dated 17.08.2016 holding that she is not entitled to any relief and decided issue no. 7 accordingly.
9. The plaintiff preferred a S.C.C. Revision No. 26 of 2016 before the revisional court. Before the revisional court, the findings with regard to issue no. 1 recorded by the trial court was challenged by the plaintiff. The revisional court has found that the husband of the plaintiff, Lalchand Gupta, appeared before the trial court as P.W.1. It further found that as per Section 120 of the Evidence Act, in all civil cases, the parties to the suit, and the husband or wife of any party to the suit shall be competent witness. It held that P.W.1 was competent to depose before the trial court on behalf of the plaintiff, his wife. The trial court relied upon the judgements of this Court in the cases of Union of India and others Vs. Sri Sudarshan Lal Talvar, 2002 (3) AWC 1881; Smt. Rajni Shukla Vs. Special Judge (E.C. Act), Banda and others, 2007 (4) AWC 4176 and Mohd. Ibrahim Abid and others Vs. Sameer Om, (2016) 159 AIC 938. It held that the trial court has wrongly drawn adverse inference against the plaintiff for not appearing in the witness box as per Section 114 of the Evidence Act and reversed the findings of the trial court. The revisional court also considered the part of issue no. 1 whether the default committed by the defendant in the payment of rent to the plaintiff stands condoned on account of deposit of entire arrears of rent, taxes, etc., before the trial court on the first date of hearing.
10. The trial court has relied upon the judgement of this Court in the case of (Smt.) Prakash Rani @ Prakashwati Vs. VI Additional District Judge, Bulandshahr and others, 2006 (2) ARC 296. In this case, it was held by this Court that for termination of tenancy, it is not at all necessary that the tenant must be defaulter. Month to month tenancy is terminable by one month's notice u/s 106 of the Transfer of Property Act. It further relied upon the judgement of this Court in the cases of Khursheed Vs. Sillu and Anr., 2014 (1) ARC 128 and Smt. Aamna Khan Vs. Smt. Anita Burman, 2018 (1) JCLR 722 (ALL). The revisional court found that mere fact that notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession, it would not be a case of forfeiture under clause (g) but one of determination of tenancy by exercising power under clause (h) of Section 111 of the Transfer of Property Act. The revisional court has held that the suit of the plaintiff was wrongly dismissed by the trial court and decreed the same by allowing the revision preferred by the plaintiff before it.
11. Learned counsel for the defendant/petitioner has submitted that the finding of the revisional court regarding issue no. 1 is incorrect. The trial court rightly dismissed the suit of the plaintiff but the revisional court has decreed the same. He has relied upon the judgement of the Apex Court in the case of Vidhyadhar Vs. Mankikrao & Another, 1999 AIR(SC) 1441.
12. Learned counsel for the plaintiff/respondent submitted that Section 120 of the Evidence Act pre-supposes that knowledge of the husband is also that of the wife and vice-versa. He has submitted that the finding of the trial court regarding incompetence of the husband of the plaintiff to depose before the court was unwarranted and has rightly been set-aside by the revisional court.
13. After hearing the rival contentions, this Court finds it relevant to refer to Order 3, Rule 1 C.P.C which is as under:-
"1. Appearances etc. may be in person by recognised agent or by pleader.--Any appearance application or act in or to any Court required or authorised by law to be made or done by a party in such Court may except where otherwise expressly provided by any law for the time being in force be made or done by the party in person or by his recognised agent or by a pleader [appearing applying or acting as the case may be] on his behalf:
Provided that any such appearance shall if the Court so directs be made by the party in person.
Sections 118 and 120 of the Evidence Act are also quoted below:
"118. Who may testify.-- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years extreme old age disease whether of body or mind or any other cause of the same kind.
Explanation.--A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
120. Parties to civil suit and their wives or husbands. Husband or wife of person under criminal trial.--In all civil proceedings the parties to the suit and the husband or wife of any party to the suit shall be competent witnesses. In criminal proceedings against any person the husband or wife of such person respectively shall be a competent witness.
However by virtue of Section 120 Evidence Act husband was even in the absence of any power-of-attorney quite competent to depose on behalf of the wife. Moreover in India normally properties standing in names of the ladies are managed by their husbands. If the facts which the plaintiff wants to prove are also in the knowledge of her husband then even in the absence of any power-of-attorney he is quite competent to depose on behalf of his wife. However if there is any fact which is in the exclusive knowledge of the plaintiff then she alone can depose about that.
14. In the case of Vidhyadhar (supra), it was suit regarding redemption of mortgage. The mortgagee abstained from entering into the witness box and therefore, adverse inference was drawn by the trial court as well as the lower appellate court but the High Court reversed the findings of the courts below. The judgement of the High Court did not found favour with the Supreme Court on the ground that the facts pleaded in the written statement on oath were not proved by the defendant mortgagee and therefore, the case setup by the mortgagee was not correct. This case will not help the defendant/p
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etitioner since in this case there is no application of Section 120 of the Evidence Act. In the case of Vidhyadhar (supra) relied upon by the defendant/petitioner, the mortgagee completely abstained from entering into the witness box, while in the present case, the husband of the plaintiff appeared in the witness box as P.W.1 and proved the case of the plaintiff in the plaint on behalf of his wife, the plaintiff. 15. In view of the above legal position, the judgement of the revisional court is justified and calls for no interference. The petition fails and is accordingly dismissed. 16. However, keeping in view the fact that the defendant/petitioner is a very old tenant, he is granted one year's time to vacate the shop in dispute subject to furnishing an undertaking before the Prescribed Authority within three weeks from today that he will vacate the shop in dispute within one year and will deliver peaceful and vacant possession of the same to the plaintiff/respondent on or before 21.12.2022. He will also deposit the damages for use and occupation of the shop in dispute @ Rs.5000/- per month in advance for one year before the Prescribed Authority along with the undertaking. In case of default in complying with the above directions within three weeks, the plaintiff/respondent would be at liberty to execute the decree of the trial court.