# Qazi Abdul Wahab v. The Spl. Judge (A.D.J.) and others

- **Citation:** (2008) 3 ILRA 932
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-15
- **Case number:** Civil Misc. Writ Petition No. 5571 of 1984
- **Bench:** S. U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/qazi-abdul-wahab-v-the-spl-judge-a-d-j-and-others-41274
- **Pages:** 6

## Headnote

And Eviction) Act 1972-Section 20(4)-
tenant deposited entire amount of rent
and damages-during pendency of earlier
revision
pending
against
evictionlandlord in second notice communicated
willingness
to
withdraw
the
rent
deposited in earlier decided suit-heldsuch deposit perfectly valid-entitled to
benefit of Section of 20(4) of the Act.

Held: Para 18, 19 & 20

In the second notice dated 27.04.1979,
the landlord clearly asked for details of
deposit
and
communicated
its
willingness
to
withdraw
the
rent
deposited by the tenant in the decided
suit. This clearly meant that the landlord
had approved the deposit, hence it
cannot be said that the said deposit
cannot be taken into consideration.

Accordingly, I am of the opinion that
deposit of rent by the tenant in the
decided suit in between the two notices
sent by the landlord was valid.

In this manner, rent was deposited
within 30 days from the first notice and
at the time of second notice, tenant was
not
defaulter
even
for
a
month.
Accordingly, suit could not have been
decreed for eviction on the ground of
default.
Case law discussed:
AIR 2008 SC 187, 2008 (2) A.R.C. 613, AIR
2000 SC 568, J 2004(2) ARC 64, 2004(2) ARC
652, AIR 1998 SC 602, (2008) 5 SCC 287,
2008 (71) ALR 499, AIR 1996 SC 2410, 2004
(2) A.R.C. 652.

## Text

932 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
he cannot be removed from that post,
whether by reason of alleged reshuffling
or other reason short of improper
performance
of
duty,
in
case
of
probationers or misconduct in case of
confirmed employees.

5. The petitioner in this writ petition
claims that he is not willing to move out
of cadre of Transport Department of the
State Government and it is not the case of
the respondents that there is any shortcoming in the performance of his duties
by
the
petitioner,
much
less
any
misconduct.

6. In the circumstances, we are of
the opinion that the petitioner cannot be
moved out of the service cadre of the
Transport Department against his will.

7. Accordingly, the writ petition is
allowed and the impugned orders dated
23.10.1998 and 21.12.1999 issued by the
State Government (Annexure nos. 2 and 5
to the writ petition) and the order dated
2.2.2000
issued
by
the
Transport
Commissioner, U.P. Lucknow (Annexure
no.6 to the writ petition) are quashed.
 Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2008

BEFORE
THE HON'BLE S. U. KHAN, J.

Civil Misc. Writ Petition No. 5571 of 1984

Qazi Abdul Wahab

...Petitioner
Versus
The Special Judge (A.D.J.), Bijnor and
others

...Respondents

Counsel for the Petitioner:
Sri. S.A. Gilani
Counsel for the Respondents:
S.C.

U.P. Urban Buildings (Regulation, Letting
And Eviction) Act 1972-Section 20(4)-
tenant deposited entire amount of rent
and damages-during pendency of earlier
revision
pending
against
evictionlandlord in second notice communicated
willingness
to
withdraw
the
rent
deposited in earlier decided suit-heldsuch deposit perfectly valid-entitled to
benefit of Section of 20(4) of the Act.

Held: Para 18, 19 & 20

In the second notice dated 27.04.1979,
the landlord clearly asked for details of
deposit
and
communicated
its
willingness
to
withdraw
the
rent
deposited by the tenant in the decided
suit. This clearly meant that the landlord
had approved the deposit, hence it
cannot be said that the said deposit
cannot be taken into consideration.

Accordingly, I am of the opinion that
deposit of rent by the tenant in the
decided suit in between the two notices
sent by the landlord was valid.

In this manner, rent was deposited
within 30 days from the first notice and
at the time of second notice, tenant was
not
defaulter
even
for
a
month.
Accordingly, suit could not have been
decreed for eviction on the ground of
default.
Case law discussed:
AIR 2008 SC 187, 2008 (2) A.R.C. 613, AIR
2000 SC 568, J 2004(2) ARC 64, 2004(2) ARC
652, AIR 1998 SC 602, (2008) 5 SCC 287,
2008 (71) ALR 499, AIR 1996 SC 2410, 2004
(2) A.R.C. 652.

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
petitioner. No one appeared on behalf of
tenants respondents.
3 All] Qazi Abdul Wahab V. The Spl. Judge (A.D.J.) and others
933
2. This is landlord's writ petition
arising out of suit for eviction instituted
by him against original tenant respondent
No.3 Master Salahuddin in the form of
S.C.C. Suit No.100 of 1979. Eviction was
sought on the ground of default and
decree for recovery of arrears of rent was
also prayed for. Property in dispute is a
shop, rent of which is Rs.50/- per month.

3. Prior to the filing of the suit
giving rise to the instant writ petition,
landlord had filed another similar suit
being Suit No.253 of 1973. In the earlier
suit, tenant had deposited the entire rent
on the first date of hearing, hence suit was
dismissed for eviction and landlord was
permitted
to
withdraw
the
amount
deposited by tenant under Section 20(4)
of U.P. Urban Buildings (Regulation of
Letting, Rent & Eviction) Act, 1972.
Against the said decision, landlord filed
revision before the District Judge, which
was dismissed on 01.10.1975. Landlord
filed second revision before the High
Court (Civil Revision No.105 of 1978),
which was pending when the second suit
giving rise to the instant writ petition was
filed. In the second suit, defendant took
the plea that he was depositing the rent in
the previous decided suit, hence he was
not defaulter.

4. Before filing the second suit,
notice was given by the plaintiff landlord
on 17.03.1979, which was served on
21.03.1979. Tenant sent reply to the said
notice on 15.04.1979. Thereafter, second
notice was given by the landlord on
27.04.1979, which was served upon
tenant on 01.05.1979.

5. Landlord also asserted that even
in the old decided suit, tenant had not
deposited house tax, water tax and chhajja
tax.

6. In the old suit, tenant deposited
the rent for two years from May, 1977 till
April, 1979 on 18.04.1979. Tenant
contended that accordingly when the
second notice was given, he was not
defaulter and within one month from
receipt of the first notice, he had
deposited the amount.

7. It was also argued by the tenant
that in the earlier suit an excess amount of
Rs.906.88/- was deposited, which could
be adjusted in the house tax, water tax and
chhajja tax.

8. The main contention of the
plaintiff was that after receiving the first
notice on 21.03.1979, deposit could not
be made by the tenant in the old decided
suit.

9. The trial court/ J.S.C.C., Bijnor
held that even on the principle of Section
30 of the Act, where tenant is permitted to
deposit the rent before Munsif, tenant is
not entitled to deposit the rent or to
continue to deposit the rent after receipt
of the notice.

10. Accordingly, trail court decreed
the suit for eviction through judgment and
decree
dated
11.02.1982.
Suit
for
recovery of arrears of rent of Rs.2500/- as
asked for was also decreed.

11. Against the judgment and decree
passed
by
the
trial
court,
tenant
respondent filed Civil Revision No.95 of
1982. Special Judge/ A.D.J. Bijnor,
through
judgment
and
order
dated
19.01.1984, allowed the revision, set
aside the judgment and decree passed by
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the trial court and suit was dismissed.
However, landlord was permitted to
withdraw the amount deposited by the
tenant in Original Suit No.259 of 1973
(old suit). The revisional court held that
rent from May, 1977 till April, 1979
deposited by the tenant in the old decided
suit on 18.04.1979 had to be taken into
consideration.

12. The revisional court held that as
at the time of giving both the notices in
1979 and even at the time of filing of the
suit, revision was pending in the High
Court against dismissal of the earlier suit
for eviction, hence tenant was entitled to
deposit the rent in the said suit under
Order XV Rule 5, C.P.C. Revisional
Court held that under the said provision,
tenant was not bound to deposit the rent
after decision of the suit but during
pendency of revision, however he was
entitled and justified to do so.

13. Copy of first notice dated
17.03.1979 is Annexure-1 to the writ
petition and copy of second notice dated
27.04.1979 is Annexure-2 to the writ
petition. In the first notice, it was
mentioned that rent was due since
01.01.1970, hence suit No.70 of 1973 was
filed. In the said suit, rent was deposited
by the tenant. It was further stated that
after adjusting the rent deposited by the
tenant in the suit of 1973, the balance rent
was due against the tenant which the
landlord was entitled to get subject to the
decision of the revision pending in the
High Court. It was demanded that unpaid
rent should be paid within a month and
tenancy was also terminated. In the
second notice, it was mentioned that
earlier notice was given. It was also
mentioned that tenant gave a wrong reply
on 15.04.1979 (sic.) intimating that rent
from May, 1977 till April, 1979 @
Rs.50/- per month had been deposited in
the suit. Thereafter, it was mentioned in
the second notice that tenant in his reply
notice had not intimated that the rent for
two years from May, 1977 to April, 1979
had been deposited in which court and in
which case and on what date and at what
rate and through what tender number. It
was also mentioned that after decision of
Suit No.253 of 1973, tenant was not
legally entitled to deposit the rent in the
said suit. It was further mentioned in the
second notice that if in fact tenant had
deposited the rent after April, 1977 in the
Court (in the earlier suit), then its detail
should immediately be sent in writing to
the landlord so that in case money had
validly been deposited, then landlord
could withdraw the same subject to the
decision of the revision pending in the
High Court failing which it would be
deemed
that
whatever
amount
was
deposited by the tenant was illegal.
Through the said notice, tenancy was
again terminated. Revisional Court took a
technical view of the matter by holding
that second notice waived the first notice
hence deposit was valid as first notice
demanding rent did not remain any notice
in the eye of law.

14. The main point to be decided in
this case is as to whether rent deposited in
the decided suit of 1973 was valid or not
and can be adjusted in the rent or not?

15. The Supreme Court in Carona
Ltd. Vs. M/s Parvathy Swaminathan
and sons, AIR 2008 SC 187 (Para-45)
and R.K. Shukla Vs. Sudhrist Narain
Anand, 2008 (2) A.R.C. 613 (Para-17)
has held that if during pendency of
proceedings
before
High
Court
in
between landlord and tenant, tenant does
3 All] Qazi Abdul Wahab V. The Spl. Judge (A.D.J.) and others
935
not pay or deposit the rent to the landlord,
this itself may be a good ground for
refusing to grant any relief to the tenant
under the discretionary remedy of appeal
before the Supreme Court or writ petition
before the High Court.

16. Accordingly, if during pendency
of revision of the landlord, tenant deposits
the rent in the decided suit instead of
criticism, he deserves appreciation. In
revision, appeal or writ petition by the
tenant the court usually grants stay order
on the condition that the rent as and when
it accrues must be deposited by the tenant
in the decided suit. Accordingly, if
without any order of the higher Court and
even after winning from the Court below,
tenant deposits the rent in a decided suit,
it cannot be said that deposit is not valid.
Even before receiving the notice of the
landlord in 1979, tenant had already
deposited two years' rent, i.e. from
October, 1975 till April, 1977 in the
decided suit. After receiving the first
notice, tenant again deposited the rent for
subsequent period of two years, i.e. from
May, 1977 to April, 1979 in the same
decided suit.

17. Moreover, Supreme Court in
AIR 2000 SC 568 "C. Chandramohan
v. Sengottaiyan" has held that if rent is
deposited in the case initiated by the
tenant for deposit of rent and the said case
is dismissed still in case landlord has
withdrawn the amount tenant will not
remain defaulter.

18. In the second notice dated
27.04.1979, the landlord clearly asked for
details of deposit and communicated its
willingness to withdraw the rent deposited
by the tenant in the decided suit. This
clearly meant that the landlord had
approved the deposit, hence it cannot be
said that the said deposit cannot be taken
into consideration.

19. Accordingly, I am of the opinion
that deposit of rent by the tenant in the
decided suit in between the two notices
sent by the landlord was valid.

20. In this manner, rent was
deposited within 30 days from the first
notice and at the time of second notice,
tenant was not defaulter even for a month.
Accordingly, suit could not have been
decreed for eviction on the ground of
default.

Accordingly,
writ
petition
is
dismissed.

I have held in Khursheeda Vs. A.D.J
2004(2) ARC 64 and H.M. Kichlu Vs.
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.

In
the
aforesaid
authority
of
Khursheeda (supra), I placed reliance
upon the Supreme Court authority of
M.V.Acharya Vs. 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
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Sharma (dead) by L.Rs. Vs. Union of
India and another, (2008) 5 SCC 287:
2008 (71) ALR 499, part of Para-29 &
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 Vishwanath Acharya
and others Vs. 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 01.09.1940 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 31.03.1998."

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 9-A) or
government is tenant (section 21(8)]. In
the aforesaid authority of Khursheeda, I
have also placed reliance upon the
authority of Supreme Court reported in
AIR 1996 SC 2410 "Shangrila Food
Products
Ltd.
v.
Life
Insurance
Corporation of India", 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."

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
bonafide 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. Vs. L.I.C
(A.I.R 1996 S.C 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 un-reasonable
arbitrary advantage conferred upon him
by the said Rent Control Act. The writ
3 All] Mahipal Singh V. The State of U.P. and others
937
court
therefore
while
granting
or
maintaining the relief against arbitrary
ejectment to the tenant can very well ask
the tenant to shed the un-reasonable
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."

Thereafter in H.M. Kitchlu vs.
A.D.J. 2004 (2) A.R.C. 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.

Property in dispute is a shop, rent of
Rs.30/- per month is virtually as well as
actually no rent. It is rather ridiculous.
Accordingly, it is directed that w.e.f.
October,
2008
onwards,
tenants
respondents shall be liable to pay rent @
Rs.1000/- per month. No further amount
as house tax, water tax or chhajja tax shall
be payable over and above the aforesaid
rent of Rs.1000/- per month. As no one
has appeared for the tenants, hence
landlord shall send certified copy of this
judgment to any one of the tenants
through registered post.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.1298 of 2008.

Mahipal Singh

...Appellant
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri. Mithilesh Kumar Tiwari

Counsel for the Respondents:
Sri. V.K. Singh
Sri. J.N. Maurya

Constitution
of
India,
Article
226Termination
of
service-petitioner
working as Shiksha Mitra-B.S.A. passed
termination order as per direction of
District Magistrate-direction of Single
Judge to make representation to the
D.M.-putting rider and closing the door
of justice from future right of challengeheld-illusory and futile exercise-learned
Single Judge exceeded the jurisdictioncannot sustain.

Held: Para 8 & 9

In
view
of
aforesaid
facts
and
circumstances, we are of the opinion
that the order passed by the learned
single Judge exceeds jurisdiction and,
therefore, if cannot be sustained under
law. Accordingly, we allow the appeal
and set-aside the judgment and order of
the learned single Judge dated 1.9.2008
and send back the matter before the
appropriate Bench of the learned single
Judge for decision afresh on merits

 The special appeal is allowed as above.
No order as to costs.