# Ram Lakhan Gupta Revisionist v. M/S Taksal Theatre Pvt. Ltd. Opp. Party

- **Citation:** (2015) 1 ILRA 382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-03
- **Case number:** Civil Revision No. 16 of 2010
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-lakhan-gupta-revisionist-v-m-s-taksal-theatre-pvt-ltd-opp-party-43163
- **Pages:** 7

## Headnote

Shailendra, A.K. Gupta, Chandan Sharma,
U.N. Sharma
Provincial
Small
Causes
Court
ActSection 25-Scope of Revision-concurrent
finding of fact-default in rent-recorded
by
Court
below-word
'rent'-as
per
Section 7 of Act no. 13 of 1972-includes
the maintenance and service charges
also-held-justified-no interference call
for.
Held: Para-26
After careful consideration of the matter
I am of the view that Court below has
correctly appreciated the evidence on
record and its findings on the issue of
default do not warrant any interference
by the Court in its revisional jurisdiction
under
section
25
of
the
Act.
1 All] Ram Lakhan Gupta Vs. M/s Taksal Theature Pvt. Ltd.
383
Case Law discussed:
(1990) 2 SCC 651; AIR 2000 Delhi 69; 1997
(1) AWC 378; AIR 1957 SC 309; (1990) 2 SCC
651; AIR 1976 Allahabad 362; 2000 (2) JCLR
375 (All) (FB); 1997 (1) AWC 378; AIR 2000
Delhi 378; AIR 2000 Delhi 69; (2014) 9 SCC

## Text

382
 INDIAN LAW REPORTS ALLAHABAD SERIES
them, and would impart complete justice
to them. Where process of administration
of justice is interfered with in such a
manner, the faith and confidence of public
is bound to fade away.
19. Considering the entire facts and
circumstances and conduct shown by two
contemnors before this Court, we award
punishment of simple imprisonment for a
day i.e. till raising of the Court and fine of
Rs.2,000/- each, failing which, they shall
undergo simple imprisonment for a
further period of fifteen days'.
20. Besides, in exercise of our
powers under Chapter 24 Rule 11(3) of
The Allahabad High Court Rules, 1952,
framed under Section 34(1) of Advocates
Act, 1961, we restrain two contemnors
from practising in Civil Court/District
Judgeship, Rampur for a period of thirty
days. They shall not enter premises of
Civil Court/District Judgeship, Rampur
for a period of thirty days', which shall
commence from 23rd April, 2015.
21. Conduct of both contemnors shall
also remain under constant observation of the
District Judge, Rampur for a period of two
years' and in case, they are found indulged in
any otherwise activity causing disruption etc.
in the court, matter shall be reported to this
Court forthwith. Copy of this order shall be
communicated to District Judge, Rampur
forthwith, for compliance of aforesaid
directions.
22.
The two contemnors present in
the Court, at this stage, stated that they are
surrendering before this Court to serve the
sentence and may be taken in custody.
They also prayed, that they be permitted to
deposit fine within such time as the Court
may direct.
23. In view of above, contemnors
are taken in custody to serve sentence of
one day simple imprisonment and shall be
released on rising of the Court. Fine of
Rs.2,000/- each may be deposited by the
two contemnors within a week.
24.
Criminal contempt application is
accordingly disposed of with the directions
as above.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Revision No. 16 of 2010
Ram Lakhan Gupta
 ...Revisionist
Versus
M/S Taksal Theatre Pvt. Ltd.
..Opp. Party
Counsel for the Revisionist:
H.K. Srivastava, C.K. Parikh
Counsel for the Opp. Party:
Shailendra, A.K. Gupta, Chandan Sharma,
U.N. Sharma
Provincial
Small
Causes
Court
ActSection 25-Scope of Revision-concurrent
finding of fact-default in rent-recorded
by
Court
below-word
'rent'-as
per
Section 7 of Act no. 13 of 1972-includes
the maintenance and service charges
also-held-justified-no interference call
for.
Held: Para-26
After careful consideration of the matter
I am of the view that Court below has
correctly appreciated the evidence on
record and its findings on the issue of
default do not warrant any interference
by the Court in its revisional jurisdiction
under
section
25
of
the
Act.
1 All] Ram Lakhan Gupta Vs. M/s Taksal Theature Pvt. Ltd.
383
Case Law discussed:
(1990) 2 SCC 651; AIR 2000 Delhi 69; 1997
(1) AWC 378; AIR 1957 SC 309; (1990) 2 SCC
651; AIR 1976 Allahabad 362; 2000 (2) JCLR
375 (All) (FB); 1997 (1) AWC 378; AIR 2000
Delhi 378; AIR 2000 Delhi 69; (2014) 9 SCC
78.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1. This civil revision under section
25 of Provincial Small Causes Court,
18871
has
been
preferred
by
a
tenant/revisionist against the judgment
and decree dated 25.11.2009 passed by
the Additional District Judge, Varanasi
for the arrears of rent and his ejectment in
SCC suit.
2. Briefly stated the facts are that Ms
Taksal Theaters Private Limited is a
Company registered under the Indian
Companies Act, 1956. The Taksal Theater
building situate at Nadesar in Varanasi.
The tenant-revisionist is a tenant of 3rd
floor
in
the
said
building.
The
accommodation in question is 25' x9'' x 9'
x 2'' x 18' 6'' total area is 380.80 square
feet. The said portion was let out to the
tenant-revisionist
in
February,
1988.
According to the landlord the present rent
of the building is Rs.2687/- per month
including
the
service
charges.
The
landlord claims that the provisions of the
U.P. Act No. 13 of 1972 are not
applicable to the said building as the rent
is above Rs.2000/- per month.
3. The landlord on 28.4.2007 issued
a composite notice of demand terminating
the tenancy and called upon the tenant to
vacate the premises after the thirty days
time from the date of receipt of the notice.
The said notice was served on 30.4.2007,
but the tenant did not vacate the premises
within stipulated period and submitted a
reply
on
10.5.2007.
The
landlord
instituted a suit in small cause court,
Varanasi being Suit No. 16 of 2007 for
the eviction of the tenant-revisionist and
for the recovery of arrears of rent
amounting to Rs. 9516/- and the damages.
4. It was averred that on 1.2.1988 the
demised premises was let out to the tenant
for eleven months. At present the rent is
Rs.2,687/- per month including the service
charges. The provisions of Rent Control Act
are not applicable. It is further stated that as
the tenancy was only for eleven months and
after the expiry of the said period the
landlord does not want to let out the premises
in question to the tenant, therefore vide
notice dated 28.4.2007 the tenancy has been
terminated after giving notice of thirty days.
5. In the plaint it was stated that the
landlord is a Private Limited Company
registered under the Indian Companies
Act, 1956 and Sri Gopi Dargan is its
Director who was authorized to institute
the suit no. 16 of 2007 (M/s Taksal
Theatres Private Limited v. Ram Lakhan
Gupta). The tenant-revisionist filed a
written statement and contested the suit. It
was admitted by the tenant that a portion
of Taksal Theater building was let out to
him. Further it was claimed that the said
tenancy
was
created
under
a
memorandum dated 16.2.1988 which was
executed between landlord and tenant.
The original agreement was taken and
retained by the landlord.
6. In the additional plea the tenant
took the stand that initially monthly rent
was only Rs.500/- for total covered area
of 3rd floor. Beside the rent it was agreed
between the parties that the tenant shall
pay service charge of Rs.300/- per month.
384
 INDIAN LAW REPORTS ALLAHABAD SERIES
According to tenant-revisionist the deed
of memorandum contains a renewal
clause subject to enhancement of the rent
@ 20% after expiry of every three years.
The landlord has been pressurizing the
tenant-revisionist to increase the rent and
service charges every time and the tenant
had no option but to yield to the illegal
demand of the landlord. It is further stated
that tenant-revisionist in order to avoid
litigation and harassment agreed to the
condition of increasing the rent and
service charges @ 20% on expiry of every
three years.
7. The landlord examined Gopi
Dargan as PW 1 and Ram Lakhan Gupta
the tenant-revisionist was examined as
DW-1.. While deciding the issue no.1 the
trial court held that Gopi Dargan was
authorized to file the suit. The issue no.2
was decided by the trial court also in
favour of the landlord that the provisions
of Act No. 13 of 1972 are not applicable
on the premises on the ground that the
rent was above Rs.2000/- per months. The
trial court rejected the plea of the tenantrevisionist that the rent was only
Rs.1640/-
and
the
service
charge
Rs.1045/- cannot be included in the rent.
The court found that the service charge
was included in rent therefore, the
provisions of Act, No.13 of 1972 was not
applicable. The third issue regarding the
notice the trial court found that the notice
was valid and the illegality pointed out by
the tenant-revisionist was not sustainable.
On the above finding the suit of the
landlord was decreed.
8. I have learned counsel for the
tenant-revisionist Mr.C.K.Parikh and Sri
U.N.Sharma, learned Senior Advocate
assisted by Sri Chandan Sharma, learned
counsel for the landlord respondent.
9. Learned counsel for the tenantrevisionist submitted that on 16.2.2008
two separate memorandum were executed
between the parties. The first one was in
respect of rent which was Rs.500/- per
month and on the same day a separate and
independent agreement was also entered
into between the parties in respect of
service charge as service agreement for
separate amount of Rs.300/- as service
charge and it cannot be treated as rent.
Under section 2(1)(g) of the U.P.Act No.
13 of 1972 a building is exempted from
its operation, if the rent is above
Rs.2,000/- per month. He submitted that
service charge cannot be treated as a part
of rent therefore, the finding recorded by
the court below on issue no.2 that the
service charge was included in the rent
and for the said reason the total amount of
rent
was
Rs.2687/-
therefore
the
provisions of Act No. 13 of 1972 would
not be applicable.
10. Learned counsel for the tenantrevisionist failed to cite any authority that
service charge cannot be included in the
rent.
11. Learned counsel for the landlord
submitted that Section 3 (1) of the Act
No. 13 of 1972 defines the building.
Section 7 of the Act provides that the
tenant shall be liable to pay the landlord
in addition to and as part of the rent, the
certain taxes or proportionate part thereof,
if any, payable in respect of the building
or part under this tenancy. It was further
submitted that the term building means a
residential or non residential building
roofed structure and includes any land
including any garden, garages and out
houses, appurtenant to such building; any
furniture supplied by the landlord for use
in such building ; any fittings and fixtures
1 All] Ram Lakhan Gupta Vs. M/s Taksal Theature Pvt. Ltd.
385
affixed to such building for the more
beneficial enjoyment thereof.
12. Learned counsel for the landlord
has placed reliance on a judgment of the
Supreme Court in the case of Pushpa Sen
Gupta v. Susma Ghose (1990) 2 SCC 651,
Sewa International Fashions v. Smt.
Suman Kathpalia and others, AIR 2000
Delhi 69. and Manager, Punjab National
Bank, Shamshabad Agra and others v.
District Judge, Agra and others, 1997 (1)
AWC 378. in support of his submission
he submitted that the word 'rent 'includes
not only which is strictly under the rent
but also demand in respect of amenities or
services provided by landlord under the
terms of tenancy.
13. He lastly urged that Section 105
of the Transfer of Property Act, 1882
defines 'leases' which states that a lease of
immovable property is a transfer or a right
to enjoy such property made available for
certain time, express or implied, or of
money.
14. I have considered the rival
submissions and perused the record. It is a
common ground that at present the rent of
the premises is Rs.2,687/- per month. The
principal
question
that
arises
for
consideration is whether the service
charge can be included in the rent or not.
If the service charge is not a part of the
rent then the provisions of the Rent
Control Act, 1972 would be attracted
because the rent would fall below
Rs.2000/- per month. The issue whether
the service charge or other amenities can
be part of th rent has been decided in a
series of decisions by the Supreme Court
and this Court also. It is noteworthy that
word 'rent' has not been defined under the
U.P .Act No. 13 of 1972.
15. The Supreme Court in the case
of Karnani Properties Ltd. v. Miss
Augustine (AIR 1957 SC 309) considered
the term 'rent'. The Court was considering
a case arising out from the West Bengal
Premises
Rent
Control
(Temporary
Provisions) Act (17 of 1950). In the said
case the word 'rent' was not defined. The
Supreme Court relying on a judgment of
Property Holding Company Ltd. v. Clark,
(1948-1 KB 630) held that the term 'rent'
is comprehensive and it includes all
payment by the tenant to be paid to his
landlord for the use and occupation of the
building. It also includes the furnishing,
electric installations and other amenities
agreed between the parties. The relevant
part of the judgment reads as under :-
"The term 'rent' has not been defined
in the Act. Hence it must be taken to have
been used in its ordinary dictionary
meaning. The term 'rent' is comprehensive
enough, to include all payments agreed by
the tenant to be paid to his landlord for
the use and occupation not only of the
building and its appurtenances but also of
furnishings, electric installations and
other amenities agreed between the
parties to be provided by and at the cost
of the landlord. Therefore all that is
included in the term 'rent' is within the
purview of the Act."
(emphasis supplied by me)
16. The judgment of Karnani
Properties Ltd.(supra) was relied by the
Supreme Court in Pushpa Sen Gupta v.
Susma Ghose (1990) 2 SCC 651. This
Court also in the case of P.L.Kureel Talib
Mankab, Bidhan Parishad v. Beni Prasad
and another, (AIR 1976 Allahabad 362)
considered the service charges which the
landlord had been realizing from the
386
 INDIAN LAW REPORTS ALLAHABAD SERIES
tenant every month. In the said case the
services included maintenance and operation
of lift, electricity, furnishing and cleaning
water pump, salary of the watchman etc. The
Court was of the view that the service
charges were part of the 'rent'. The Court has
relied the judgment of the Supreme Court in
Karnani Properties Ltd. (supra). Same view
has been taken by the Full Bench of this
Court in the case of Gokaran Singh v. Ist
Additional District and Sessions Judge,
Hardoi and others, 2000 (2) JCLR 375 (All)
(FB). The full Bench held that word 'rent' in
absence of any definition must be held to
have been used in its ordinary dictionary
meaning and the term 'rent' is comprehensive
and it includes all payments agreed by the
tenant to be paid to his landlord. Paragraph
13 of the judgment held thus :-
"Before proceeding further, we will
have to see as to what is meant by term
'arrears of rent' as used in clause (a) of
Sub-section (2) of Section 20 of the Act.
Under the Act or the Rules framed
thereunder, term 'rent' has not been
defined. Therefore, it must be held to
have been used in its ordinary dictionary
meaning. Term' rent' is comprehensive
enough, to include all payments agreed by
the tenant to be paid to his landlord for
the used and occupation not only of the
building and its appurtenances but also of
furnishes, electricity installation and other
amenities agreed between the parties to be
provided by and at the cost of the
landlord, as held by the Apex Court while
dealing with a case under West Bengal
Premises
(Rent
Control)
Temporary
Provision Act, 1950, the provisions of
which are analogous to the provisions of
the Act , In Karanani Properties Ltd., AIR
1957 SC 309. The rent may be agreed rent
or standard rent in view of provisions of
Section 4 (2) of the Act."
17. A similar view has been taken
by this Court in the case of Manager,
Punjab National Bank, Shamshabad, Agra
and others v. District Judge, Agra and
others , 1997 (1) AWC. 378.
18.
In the Sewa International
Fashions v. Smt. Suman Kathpalia and
others, AIR 2000 Delhi 69, the Delhi
High Court took the view that apart from
the money which is paid as rent if any
service is rendered and if any payment is
made in respect of the same it shall also
be included within the definition of rent.
In the said case also the issue was whether
the maintenance charges paid by the
tenant shall be included in the rent. It was
urged before the Delhi High Court that
the maintenance charges cannot be
computed as rent and therefore the
payment
made
towards
maintenance
charges cannot be said to be payment
towards rent. The Delhi High Court
relying on the judgment in the case of
Karnani Properties Ltd. (supra) and
following the judgment of the High Court,
Allahabad in the case of P.L.Kureel Talib
Mankab, Bidhan Parishad v. Beni Prasad
and another (supra) held that maintenance
charges could be included within the
ambit of expression rent. The relevant
part of the judgment reads as under :-
" It is an established proposition of
law that rent includes not only what is
originally described as rent in agreement
between a landlord and tenant but also
those payment which is made for the
amenities provided by the landlord under
the agreement between him and the
tenant. The payment made towards the
maintenance charges of the premises
rented out and also for providing
amenities to the tenant would also come
within the expression 'rent' as rent
1 All] Ram Lakhan Gupta Vs. M/s Taksal Theature Pvt. Ltd.
387
includes all payments agreed to be paid
by the tenant to his landlord for the use
and occupation not only of the building
but
also
of
furnishing,
electric
installations and other amenities."
19. From the aforesaid judgments it
emerges that the word 'rent is a
comprehensive
and
it
includes
the
maintenance charges/service charges.
20. Now coming to the facts of this
case, the Landlord has filed the memo of
rent agreement dated 16.2.1988 regarding
service charges and rent agreement for the
tenancy for 11 months as paper No. 19
GA/32 to 35 and paper No. 19 Ga/36 to
38. Those documents are on record of the
case also as Annexure- 1 , 2 and 3 to the
Stay Application of Civil Revision.
21. The relevant part of the
agreement dated 16.2.1988 regarding
service charge reads as under :-
"That the company shall be responsible
for the maintenance of common roads,
common passage, common lights and other
services provided in the tenancy agreement
and the tenant shall pay Rs.300/- (Rupees
three hundred only) per month to the
Company against the said services."
22. From perusal of the agreement it is
clear that tenant had agreed to pay the service
charges to the landlord. The agreement also
provides for enhancement of service charge.
Indisputably the agreement has been acted
upon as the tenant has been paying agreed
amount.
23. It is noteworthy that tenant in his
deposition has stated that he has the
original receipt of the landlord but he has not
filed it. The landlord has established from the
documentary evidence as well as from the
oral statement that service charges were part
of rent. Learned counsel for the revisionist
could not satisfy the Court that the finding of
facts recorded by the court below suffers
from any perversity.
24. This Court has taken consistent
view that the revisional court while
exercising its power under section 25 of
the Act, ordinarily will not set aside the
finding of facts and substitute its own
finding after re appreciation of evidence.
The Court interfere only in those cases
where it finds the finding is based on no
evidence
or
suffers
from
vice
of
perversity. Reference may be made to the
judgment in Laxmi Kishore v. Har Prasad
Kishore v. Har Prasad Shukla- 1979 All
CJ 473; Om Prakash Gupta v. Additional
District Judge, Aligarh 1996 All. RC (2)
532; Man Mohan Dixit v. Additional
District
Judge,
1996
All.
RC
(2)
561:(1997 AIHC 740); Anwaruddin v.
Additional District Judge, Aligarh 1999
All. CJ 54: (AIR 1999 All 218), Rajendra
Nath Tripathi v. Jagdish Nath Gupta 1999
All. CJ 431: (1999 All. LJ 1429) and Har
Swarup Nigam v. District Judge 1999 All.
CJ 990.
25. The Supreme Court has recently in
the case of Hindustan Petroleum Corporation
Limited v. Dilbahar Singh, (2014) 9 SCC 78,
has held that ordinarily appellate jurisdiction
involves a rehearing but in the revisional
jurisdiction Court cannot act as Second Court
of first appeal. Paragraph 31 of the judgment
reads as under:-
"31. We are in full agreement with
the view expressed in Sri Raja Lakshmi
Dyeing Works v. Rangaswamy Chettiar,
(1980) 4 SCC 259 that where both
388
 INDIAN LAW REPORTS ALLAHABAD SERIES
expressions "appeal" and "revision" are
employed in a statute, obviously, the
expression "revision" is meant to convey the
idea of a much narrower jurisdiction than
that conveyed by the expression "appeal".
The use of two expressions "appeal" and
"revision" when used in one statute
conferring appellate power and revisional
power, we think, is not without purpose and
significance.
Ordinarily,
appellate
jurisdiction involves a rehearing while it is
not so in the case of revisional jurisdiction
when the same statute provides the remedy
by way of an "appeal" and so also of a
"revision". If that were so, the revisional
power would become coextensive with that
of the trial Court or the subordinate tribunal
which is never the case. The classic
statement
in
Dattonpant
Gopalvarao
Devakate v. Vithalrao Maruthirao Janagaval,
(1975) 2 SCC 246 that revisional power
under the Rent Control Act may not be as
narrow as the revisional power under Section
115 of the Code but, at the same time, it is
not wide enough to make the High Court a
second court of first appeal, commends to us
and we approve the same. We are of the
view that in the garb of revisional jurisdiction
under the above three Rent Control Statutes,
the High Court is not conferred a status of
second court of first appeal and the High
Court should not enlarge the scope of
revisional jurisdiction to that extent."
26. After careful consideration of
the matter I am of the view that Court
below has correctly appreciated the
evidence on record and its findings on the
issue of default do not warrant any
interference by the Court in its revisional
jurisdiction under section 25 of the Act.
27. For the reasons recorded herein
above, revision lacks merit and it
accordingly dismissed.
28. The tenant -revisionist is granted
three months time to vacate the premises
subject to the following conditions:-
(I)the
tenant
shall
submit
an
undertaking in the court below that he
will handover the vacant and peaceful
possession to the landlord on or before
15th July,2015.
(II)he will continue to pay the rent on
each succeeding month till vacation of the
accommodation on 7th day of each
month.
(III)He will not create any third party
interest in the disputed premises.
29. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2015
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
Rent Control No. 73 of 2011
Krishna Mohan Mahrotra
 ...Petitioner
Versus
A.D.J. Lakhimpur Kheri & Ors.
...Respondents
Counsel for the Petitioner:
Mohd. Aslam Khan
Counsel for the Respondents:
Nirankar Nath Jaiswal
U.P. Urban Building (Regulation of letting
Rent & Eviction)
Rules 1972-Rule 34
(i)(g)
and
Rule
22(f)-issue
of
commission-can not be as matter of rightsole prerogative of Court.
Held: Para-26 & 27
26. Further to go for local inspection or
issue of commission for the proper