# Smt. Rafiqan and others v. Jia-ul-Nabi and others

- **Citation:** (2009) 1 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-25
- **Case number:** Civil Misc. Writ Petition No. 42625 of 1998
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rafiqan-and-others-v-jia-ul-nabi-and-others-41313
- **Pages:** 3

## Headnote

S.C.

U.P.
Urban
Building
(Regulation
of
Letting Rent & Eviction) Act 1972Section 30-Deposit of rent by the heir of
tenant with the name of deceased land
lord-neither taken steps to brought the
heirs of land lord on record nor given
notice to the land lord before deposit of
such rent-held-deposit no valid-heirs of
tenant can not claim benefit under
Section 30 by the petitioner.

Held: Para 8

For the aforesaid reasons I do not find
any error in the impugned judgments.
Continuance of deposit of rent in the
case under Section 30 of the Act after
the death of original landlord/opposite
party in the said case on 03.09.1988 was
utterly invalid and heirs of original
landlord could not withdraw the said
amount.

## Text

1 All] Smt. Rafiqan and others V. Jia-ul-Nabi and others
45
case due to the compromise entered into
between the parties. Similarly in the case
of Dinesh Kumar Jain & others vs. State
of U.P. & Others 2007 (59) ACC 148,
this court has quashed the proceedings of
the criminal case under section 498A,
323, 504, 506 IPC and 3/4 D.P. Act due to
the compromise entered into between the
parties in the proceeding under section
125 Cr.P.C. Reliance in this case has been
placed on B.S. Joshi vs. State of Haryana
(supra).

9. In view of the discussion made
herein-above, I am of the considered
opinion that it would be an abuse of the
process of the Court, if the criminal
proceeding of case no. 950 of 2007 (State
Vs. Satish Kumar and others) under
section 498-A, 323, 504, 506 I.P.C. and
3/4 D.P. Act arising out of crime no. 527
of 2005, P.S. Vijay Nagar, Ghaziabad
pending in the Court of Addl. Chief
Judicial
Magistrate,
Court
No.
2,
Ghaziabad
is
allowed
to
continue.
Therefore, to do the complete justice, the
proceedings of the criminal case should
be quashed by this Court in its inherent
jurisdiction under section 482 Cr.P.C.

10. Consequently, the application
under section 482 Cr.P.C. is allowed. The
proceeding of criminal case no. 950 of
2007 (State Vs. Satish Kumar and others)
under section 498-A, 323, 504, 506 I.P.C.
and 3/4 D.P. Act arising out of crime no.
527 of 2005, P.S. Vijay Nagar, Ghaziabad
pending in the Court of Addl. Chief
Judicial
Magistrate,
Court
No.
2,
Ghaziabad is hereby quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2008

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

Civil Misc. Writ Petition No. 42625 of 1998

Smt. Rafiqan and others ...Petitioners
Versus
Jia-ul-Nabi and others ...Respondents

Counsel for the Petitioners:
Sri Prabha Kant Mishra
Sri Somnath Seth

Counsel for the Respondents:
S.C.

U.P.
Urban
Building
(Regulation
of
Letting Rent & Eviction) Act 1972Section 30-Deposit of rent by the heir of
tenant with the name of deceased land
lord-neither taken steps to brought the
heirs of land lord on record nor given
notice to the land lord before deposit of
such rent-held-deposit no valid-heirs of
tenant can not claim benefit under
Section 30 by the petitioner.

Held: Para 8

For the aforesaid reasons I do not find
any error in the impugned judgments.
Continuance of deposit of rent in the
case under Section 30 of the Act after
the death of original landlord/opposite
party in the said case on 03.09.1988 was
utterly invalid and heirs of original
landlord could not withdraw the said
amount.

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

1. At the time of hearing no one
appeared on behalf of respondent hence
only the arguments of the learned counsel
for the petitioners were heard.
46 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
2. Property in dispute is a Khaperail
shop of 10 feet x 12 feet. Rent is Rs.20/-
per month. However, under interim order
passed in this writ petition tenants are
paying Rs.100/- per month rent.

3. This is tenants' writ petition.
Landlords respondent nos. 1 to 9 filed
S.C.C. Suit no.19 of 1990 against tenants
petitioners for eviction on the ground of
default and for recovery of arrears of rent.
Tenants pleaded that entire rent had been
deposited under Section 30 of U.P. Urban
Buildings (Regulation of Letting, Rent &
Eviction) Act, 1972 hence they were not
defaulter. The trial Court held that deposit
of rent under Section 30 of the Act was
not valid and decreed the suit for eviction
through judgment and decree dated
17.08.1994. Against the said judgment
and decree S.C.C. Revision no.52 of 1994
was fled which was dismissed by Ist
A.D.J., Rampur on 28.11.1995 hence this
writ petition.

4. Initially Sibtey-Nabi was the
landlord who died before filing of the suit
leaving behind respondent nos.1 to 9 as
his heirs. Similarly original tenant was
Mohd.Yaqub Khan who died during
pendency of the suit and was substituted
by the petitioners. Landlords respondents
sent a notice to original tenants on
02.07.1990 terminating the tenancy and
demanding the rent from 01.11.1976 to
30.06.1990 (total Rs.4920/-). The tenants
replied the notice stating therein that rent
had been deposited under Section 30 of
U.P. Urban Buildings (Regulation of
Letting, Rent & Eviction) Act, 1972 in
case no.9 of 1977. Original landlord had
died on 03.09.1988. However, even after
his death no application for substitution of
respondent nos. 1 to 9 was filed in the
case under Section 30 of the Act (Misc.
case no.9 of 1972). Same thing was
pleaded by the defendants in the written
statement filed in the suit. It was further
pleaded
that
subsequently
rent
till
31.10.1992 had also been deposited in the
case under Section 30 of the Act (Misc.
Case no.9 of 1977). Tenants contended
that firstly when notice was received by
original tenants, they were not defaulter
for four months and secondly tenants had
deposited the entire rent and they were
entitled to the benefit of Section 20(4) of
the Act.

5. Landlords contended that deposit
of rent under Section 30 of the Act was
not valid as no notice of any deposit was
given to the landlord and that provisions
of Rule 21(5) of the Rules framed under
the Act were not complied with. It was
further contended that after the death of
original
landlord
Sibtey-Nabi
on
03.09.1988 deposit in his name was not
valid.

6. In para no. 8 of the writ petition it
has been stated that in the eviction suit
giving rise to the instant writ petition
tenants deposited Rs.735/- on 06.09.1993
which included Rs.300/- towards rent
from 01.11.1992 to 31.08.1993 and cost
of the suit including counsel fee. Written
statement was filed on 27.09.1993.

7. In my opinion even if all the pleas
taken by the tenants petitioners are
accepted still deposit under Section 30
will not be valid after the date of death of
original landlord as tenants did not seek
substitution of the heirs of original
landlord in the case under Section 30 of
the Act. Rent deposited under Section 30
(1) of the Act can be withdrawn only by
the person in whose name it is deposited.
The heirs of original landlord after the
1 All] Smt. Krishna Kumari and another V. Brijesh Kumar Gupta and others
47
death of original landlord could not
withdraw the said rent. In this regard
reference may also be made to Section
30(4) of the Act which is quoted below:-

"On any deposit being made under
sub-section (1), the Court shall cause a
notice of the deposit to be served on the
alleged landlord, and the amount of
deposit may be withdrawn by that person
on application made by him to the Court
in that behalf."

8. For the aforesaid reasons I do not
find any error in the impugned judgments.
Continuance of deposit of rent in the case
under Section 30 of the Act after the death
of original landlord/opposite party in the
said case on 03.09.1988 was utterly
invalid and heirs of original landlord
could not withdraw the said amount.

9. Writ petition is accordingly
dismissed.

10. Tenants-petitioners are granted
six months time to vacate provided that:-

1. Within one month from today tenants
files an undertaking before the J.S.C.C. to
the effect that on or before the expiry of
aforesaid period of six months he will
willingly vacate and handover possession
of the property in dispute to the landlordsrespondents.

2. For this period of six months, which
has been granted to the tenants-petitioners
to vacate, they are required to pay
Rs.1800/-(at the rate of Rs.300/- per
month) as rent/damages for use and
occupation. This amount shall also be
deposited within one month before the
J.S.C.C. and shall immediately be paid to
the landlord-respondent.
3. Within one month from today tenants
shall deposit entire decreetal amount due
till date (after adjusting any amount
already deposited) before the J.S.C.C. for
immediate
payment
to
landlords
respondents.

In case of default in compliance of
any of these conditions tenants-petitioners
shall be evicted through process of Court
after one month and tenants-petitioners
shall be liable to pay damages at the rate
of Rs.600/- per month since after one
month till the date of actual vacation.

11. Similarly, if after filing the
aforesaid undertaking and depositing
decreetal amount and Rs.1800/- the
accommodation in dispute is not vacated
on the expiry of six months then damages
for use and occupation shall be payable at
the rate of Rs.600/- per month since after
six months till actual vacation. It is
needless to add that this direction is in
addition to the right of the landlordsrespondents to file contempt petition for
violation of undertaking and execution
application.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2008

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal From Order No. 182 of 1994

Smt. Krishna Kumari and another

...Claimants/Appellants
Versus
Brijesh Kumar Gupta and others

 ...Respondents/Opposite parties

Counsel for the Appellants:
Sri Rajesh Kumar Yadav
Sri Ajay Kumar Goel