The court established that consistent non-payment of rent during proceedings justifies eviction under the UP Rent Act.

ORDER

1. Leave granted.

2. Challenging the judgment dated 22.01.2001 passed in Suit No. 1 of 1992 by Small Causes Court dismissing the suit for eviction filed by landlord due to ‘non­payment of rent’, ‘subletting’, and ‘expiry of rent agreement’, as affirmed by the High Court vide impugned judgment dated 31.01.2013, the present appeal has been filed.

3. The facts leading are that appellant (now deceased) was the owner of Shop No. 4 (Western Direction) situated in Mohalla Begupur, Muglani, Ram Prasad Bhalotia Market, District Gorakhpur city with the prescribed boundaries shown in the suit. The defendant/respondent (now deceased) was inducted as a tenant on a monthly rent of Rs. 330/. The tenancy was for a fixed period of five years, which started from 01.07.1985 and ended on 30.06.1990. As per the terms of tenancy, on expiry of period of five years, the tenant may continue with increase of rent @ 15 % per month provided the same is agreeable to the owner.

4. It was averred in the suit that neither plaintiff – landlord intimated about construction of shop to Municipality nor Municipality recorded the same on its own and did the tax assessment of the shop in 1972. On objections being raised by plaintiff/landlord, the same was admitted by the Municipality. The plea of sub­letting has also been averred, but it is not being dealt here as the said ground has not been pressed during hearing. As contended, after expiry of the period of tenancy, it was not renewed by consent and the respondent – tenant became unauthorized occupant of the shop. However, as per agreement, for the period of overstay, he ought to pay Rs. 1,000/­ per month. Therefore, due to non­payment of rent, notice was issued for termination of tenancy, which was not responded to by defendant/respondent – tenant.

5. On filing suit, defendant entered appearance and filed the written statement, inter­alia, stating that plaintiff did not have right to bring the suit, and claimed protection under Section 20 of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “UP Rent Act”). It was averred that, prior to the fresh tenancy agreement dated 13.03.1986, which was from 01.07.1985 for five years, defendant was a tenant since 1977, therefore, being in continuous tenancy, the same would not extinguish and he would be entitled to protection available under Section 20 of the UP Rent Act, if rent is deposited in the Court under Section 30 of the said Act.

6. Learned Trial Court, on Issue No. 4 noted that from the agreement it can be determined that the tenancy was not for a definite period of five years. On Issue No. 5 it was held that the benefit under Section 20(4) of the UP Rent Act is available to the tenant. Further, Issue No. 6 which relates to default in payment of the rent, it was concluded against the landlord and in favour of tenant and hence, suit was dismissed.

7. The revision filed against the judgment of the Trial Court was dismissed by the High Court, observing that in revisional jurisdiction, re­appraisal of evidence is not permissible, and consequently findings of the Trial Court were affirmed.

8. Being dissatisfied, the present appeal has been preferred, inter­alia, submitting that tenancy was for 5 years, and ended on 30.06.1990. The tenancy was monthly in nature and the rent was payable on month­to­month basis. As per Clause 14, such tenancy may be extendable, by consent of the landlord with monthly increase of rent @ 15%, after entering into registered agreement. In absence thereof, Clause 6 of the agreement would attract and the defendant be treated an unauthorized occupant and liable to pay Rs. 1000/­ per month as penalty for overstay.

9. It is contended that the rent and the penalty, as agreed in the lease agreement, has not been deposited even on receipt of the notice by the Court within the time and the respondent – tenant was in default of payment of rent even during pendency of proceedings. This Court v