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PETITIONER: HARIDEV MISRA

       Vs.

RESPONDENT: JAMUNADAS AGARWAL & ORS.

DATE OF JUDGMENT17/02/1989

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SHETTY, K.J. (J) AHMADI, A.M. (J)

CITATION:  1989 SCR  (1) 756        1989 SCC  (2) 112  JT 1989 (1)   356        1989 SCALE  (1)455

ACT:     U.P.  Urban  Building (Regulation of  Letting  Rent  and Eviction) Act, 1972--Sections 3(i) and 20(2)(a)--Eviction of tenant for default-Landlord raising a new plea that  tenancy was  for furnished house-Whether permissible to  raise  such plea.

HEADNOTE:     The respondent-landlord filed a suit for eviction of the appellantstenant from the house in question on the ground of failure to pay rent and for realisation of arrears of  rent. While the respondent pleaded that the rate of rent was Rs.70 per  month, the appellant contended that it was  only  Rs.40 and  not Rs.70, and that he was paying Rs.30 per  month  for the  furniture, provided by the landlord which  he  returned sometime after the tenancy commenced.     The trial court dismissed the suit holding that the rate of rent was Rs.40 per month and, as such, the appellant  was not defaulter. In the revision filed by the respondent,  the Revisional Court held that the rent was Rs.70 per month.     The  appellant  filed a writ petition  before  the  High Court,  which quashed the revisional order and remanded  the case  for deciding the revision petition  afresh.Thereafter, the revisional court again allowed the revision.     The appellant challenged the revisional order before the High Court which dismissed the same.     In  the  appeal, by special leave, it was  contended  on behalf  of  the appellant-tenant that in the face  of  clear admission of the respondent in the receipt, the rent of  the house was Rs.40 per month, and that the amount of Rs.70  per month  mentioned in the rent note had been explained in  the receipts, to be Rs.40 as house rent and Rs.30 for furniture. On  behalf  of  the respondent, it was  contended  that  the tenancy 757 was  for a furnished building and failure to pay a  part  of the rent, in respect of furniture, would attract the  provi- sions of s. 20(2)(a) of the U.P. Urban Building  (Regulation of  Letting Rent and Eviction) Act, 1972 and  the  appellant was  liable  to be ejected. It was also contended  that  the tenancy  being  of a furnished house the  tenant  could  not

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under law, unilaterally surrender part of tenancy. Allowing the appeal,     HELD:  It  was never the case of the respondent  at  any stage  that furnished house was given on rent to the  appel- lant.  In  the  notice before filing the  suit  and  in  the plaint,  it was specifically pleaded that rent of the  house was  Rs.70 per month and the tenant was in arrears.  In  the written  statement,  appellant took a clear stand  that  the rent  of  the  house was only Rs.40 and Rs.30  was  for  the furniture,  which according to him, was returned  after  the commencement of the tenancy. [760C-D]     In  the  face of clear pleadings on the  record,  it  is impermissible  to raise the plea that the landlord rented  a furnished  house to the tenant. It would be contrary to  the pleadings.  That apart, neither before the trial  court  nor before  the  Revisional Court and not even before  the  High Court this plea was raised. [760F]     The trial court relied upon the rent receipts, 39/C  and 40/C, produced by the appellant. It was clearly mentioned in the  receipt  39/C that Rs.40 were towards  house  rent  and Rs.30  towards furniture charges and Rs.3 towards water  and electricity charges. The respondent admitted the contents of the  receipt  but  explained that  Rs.30  towards  furniture charges was mentioned at the request of the tenant. [758G-H]     In the face of the clear admission by the .respondent in the  two receipts, the finding of the Revisional Court  that the monthly rent was Rs.70 is erroneous. [759D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  912  of 1989.     From  the  Judgment  and Order dated  11.5.1988  of  the Allahabad High Court in Misc. W.P. No. 7886 of 1985. Yogeshwar Prasad and Mrs. Shobha Dikshit for the Appellant.  758 Satish Chandra and Madan Lokur for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted.     This  appeal  arises out of a suit filed  by  respondent (plaintiff)  landlord in the Court of Judge,  Small  Causes, Gorakhpur, for eviction of the appellants (defendant) tenant from  the house in question on the ground of failure to  pay the  rent and for realisation of arrears of rent  and  elec- tricity  charges  amounting to Rs.2,560.60. It  was  pleaded that  the  tenant was to pay a monthly rent of  Rs.70  apart from Rs.3 per month as water and electricity charges and was in  arrears  since July, 1979 which he failed  to  pay.  The appellant  contested the suit mainly on the ground that  the rate  of rent was not Rs.70 per month but it was only  Rs.40 and  besides  that  he was provided with  furniture  by  the landlord  for which he was paying Rs.30 per month. His  case further  was that some time after the tenancy commenced,  he returned the furniture.     The  Judge,  Small Causes Court, by his  judgment  dated 10th.  November, 1983, dismissed the suit holding  that  the rate  of rent was Rs.40 per month and as such the  appellant was  not a defaulter. The respondent filed a revision  which was allowed by the Additional District Judge, Gorakhpur. The Revisional  Court held that the rate of rent was  Rs.70  per month.  The  appellant  filed a writ  petition  against  the revisional  order before the Allahabed High Court. The  High Court  allowed  the writ petition,  quashed  the  revisional order and remanded the case for deciding the revision  peti-

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tion afresh. Thereafter, the Revisional Court again  allowed the  revision and set aside the judgment of the Trial  Court and  ordered ejectment. The appellant again  challenged  the revisional order by way of a writ petition before the  Alla- habad  High  Court but the same was  dismissed.  Hence  this appeal.     The Trial Court primarily relied upon documents 39/C and 40/C produced by the defendants. Document 39/C is a  receipt by  the plaintiff wherein details of Rs.73 are given. It  is clearly  mentioned  in the receipt that Rs.40  were  towards house  rent, Rs.30 towards furniture charges and Rs.3  water and electricity charges. The plaintiff admitted the contents of  receipt 39/C but he explained that Rs.30 towards  furni- ture charges were mentioned at the request of the defendant. The plaintiff strongly relied upon the rent note 97/C where- in  monthly  rent of the house was mentioned at  Rs.70.  The Trial Court rejected the rent 759 note  on  the  ground that the same was not  signed  by  the defendant.  Basing  its findings on the  receipt  39/C,  the Trial Court dismissed the suit. The Revisional Court, on the other  hand, found force in the contention of the  plaintiff that the rent note 97/C was signed by the defendant. It  was held that the admission, if any, of the plaintiff in receipt 391C  is  contradicted  by the rent note 97/C  and  as  such cannot  be  taken into consideration. The  Revisional  Court thus differed from the Trial Court and ordered ejectment.     Before  us,  the counsel for the appellant  Shri  Prasad contends that in the face of clear admission of the respond- ent in the receipt 39/C the rent of the house was Rs.40  per month. He further contents that the rent note, even if taken into consideration, has been explained by the receipts  39]C and 40/C. According to him Rs.70 per month mentioned in  the rent note has been explained in the receipts to be Rs.40  as house rent and Rs.30 for the furniture. We find force in the contention  of  the learned counsel. In the  face  of  clear admission by the respondent in the two receipts the  finding of the Revisional Court to the effect that the monthly  rent was  Rs.70  is  erroneous. Faced with  this  situation  Shri Satish  Chandra, learned counsel for the respondent  invited our  attention to Section 3(i) of the U.P.  Urban  Buildings (Regulation of Letting, Rent and Eviction) Act, 1972  (here- inafter called ’the Act’) and contends that the tenancy  was for  a  furnished building and as such failure to  pay  even Rs.30  in respect of furniture would attract the  provisions of  Section 20(2)(a) of the Act and the appellant is  liable to be ejected. Section 3(i) and Section 20(2)(a) of the  Act are as under:               "Section  3(i)"building", means a  residential               or  nonresidential  roofed structure  and  in-               cludes--                      (i)  any land (including  any  garden),               garages  and  outhouses, appurtenant  to  such               building;                     (ii)  any  furniture  supplied  by   the               landlord for use in such building;                     (iii) any fittings and fixtures  affixed               to  such  building  for  the  more  beneficial               enjoyment thereof.               "Section  20(2)(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."  760

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   Shri Satish Chandra contends that definition of building under  Section 3(i) includes any furniture supplied  by  the landlord for use in such building and as such non-payment of part of the rent meant for furniture would amount to arrears of  rent and the appellant having failed to pay the same  is liable  to be ejected. In other words, he contends  that  it was a furnished house which was let-out to the appellant. He also  contends that tenancy being of a furnished house,  the tenant  could not under law unilaterally surrender  part  of the  tenancy by returning the furniture. There may  be  some force  in the abstract proposition of law canvassed by  Shri Satish Chandra on the basis of Sections 3(i) and 20(2)(a) of the  Act, but there is no basis for him in the present  case to advance the same. It was never the case of the respondent at  any stage that furnished house was given on rent to  the appellant. In the notice before filing the suit, and in  the plaint  it was specifically pleaded that rent of  the  house was  Rs.70 per month and the tenant was in arrears.  In  the written statement appellant took a clear stand that the rent of  the  house was only Rs.40 and Rs.30  was  for  furniture which,  according  to the appellant, he returned  after  the commencement of the tenancy. The respondent filed a replica- tion  to the written statement of appellant. In Clause 3  of the  replication the respondent denied that either the  rent was  Rs.40 per month or Rs.30 was being charged  for  furni- ture.  He stated that neither any such goods had  been  sup- plied  to  the appellant by him nor the rent was  agreed  at Rs.40 per month.     It  is thus obvious from the pleadings that at no  stage the respondent pleaded that he had given furnished house  on rent  to  the  tenant. Rather the supply  of  furniture  was categorically denied. In the face of clear pleadings on  the record it is impermissible to raise the plea that the  land- lord  rented  a furnished house to the tenant. It  would  be contrary  to  the pleadings. That apart neither  before  the Trial  Court  nor before the Revisional Court and  not  even before the High Court this plea was raised. Therefore, there is no force in the contention of Shri Satish Chandra and the same is rejected.     This Appeal is, therefore, allowed. The judgments of the High  Court and of the Revisional Court are set  aside.  The judgment  of  the Trial Court is restored and  the  suit  of respondent is dismissed. There will be no order as to costs. N.P.V.                                      Appeal allowed. 761