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AzharuddIn Vs. Syed Zahid Husain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 289 of 1971
Judge
Reported inAIR1977All435
ActsEvidence Act, 1872 - Sections 114; Uttar Pradesh Nagar Mahapalika Adhiniyam - Sections 516; Transfer of Property Act, 1882 - Sections 108
AppellantAzharuddin
RespondentSyed Zahid Husain
Advocates:S. Mirza, Adv.
DispositionAppeal dismissed
Excerpt:
.....upon him as aforesaid the amount of such rent may be recovered from him by the mukhya nagar adhikari as if it were an arrears of property tax under section 504.'learned counsel has contended that before section 516 can be attracted, it must be proved that the bill had been served upon the occupier of the premises who, in the present case, was the tenant and that he was required by a notice to pay the amount to the nagar mahapalika. again, under section 114 of the evidence act the presumption will be that the bill had been served and the notice of demand had been given and the landlord had failed to pay. to fail to bestow due care upon; the term 'neglect' used in clasue (g) of section 108 of the transfer of property act, in matters of taxation should mean non-payment of the tax at the..........on his behalf; and as the tenant was liable to pay nothing but rent, the amount can be deemed as rent paid. it is, however, not necessary in this case to consider the applicability of the section in such a case as the present, as on the basis of the provisions of the nagar mahapalika adhiniyam and the transfer of property act, as mentioned above, the liability of rent had already ceased to exist in respect of the amount paid by the defendant as taxes to the nagar mahapalika.7. the decree of the courts below cannot, therefore, be held to suffer from any error of law. the suit filed by the plaintiff for the ejectment of the defendant was not maintainable because it had not been proved that the rent for more than three months was in arrears on the date of the notice of demand. the appeal.....
Judgment:

Hari Swarup, J.

1. This is plaintiffs appeal; it arises out of a suit for ejectment of a tenant and arrears of rent and damages for use and occupation. The plaintiff instituted the suit on the allegation that the tenant had failed to pay arrears of rent for more than three months, within one month of the notice of demand as contemplated by Section 3 of the (U. P.) Temporary Control of Rent and Eviction Act. The defendant's case was that rent for more than three months was not in arrears. He led evidence in support of this plea by producing in court certain receipts of payment of property tax to Nagar Mahapalika. Both the courts below have accepted this payment as sufficient to discharge the tenants liability of rent and have held that there were no arrears of rent due against the tenant for more than three months. On this finding the suit for ejectment was dismissed.

2. The learned counsel for the appellant has challenged the view of the courts below and has contended that the payment made by the tenant to the Nagar Mahapalika was not proved to be a non-voluntary payment and was accordingly not entitled to be deducted from the arrears of rent due against the tenant. The question, therefore, - that arises for determination in the appeal is about the effect of the payment of taxes by the tenant.

3. The liability to pay property tax was primarily on the landlord. Section 516 of the U. P. Nagar Mahapalika Adhiniyam provides:--

'516. Attachment of rent due:-- (1) Where a bill for any sum due on account of any property tax is served pon an occupier of premises pursuant to Sub-section (1) of Section 504, the Mukhya Nagar Adhikari may at the time of service or at any subsequent time cause to be served upon the occupier a notice requiring him to pay to the Mahapalika any rent due or falling due from him to the person primarily liable for the payment of the said tax to the extent necessary to satisfy the said sum due.

(2) Such notice shall operate as an attachment of the said rent until the said sum due on account of property-tax shall have been paid and satisfied, and the occupier shall be entitled to credit in account with the person to whom the said rent is due for any sum paid by him to the Mahapalika in pursuance of such notice.

(3) If the occupier shall fail to pay to the Mahapalika any rent due or falling due which he has been required to pay in pursuance of a notice served upon him as aforesaid the amount of such rent may be recovered from him by the Mukhya Nagar Adhikari as if it were an arrears of property tax under Section 504.'

Learned counsel has contended that before Section 516 can be attracted, it must be proved that the bill had been served upon the occupier of the premises who, in the present case, was the tenant and that he was required by a notice to pay the amount to the Nagar Mahapalika. The contention is that in the absence of direct evidence to prove that notice contemplated by Section 516 (1) was served on the defendant, the payment made by him cannot be adjustable towards the rent due against the tenant. The evidence in the present case consists of the receipts showing the payment of tax by the tenant in 1965 and 1966 towards the liability for earlier years.

4. Under Section 114 of the Evidence Act, there will be a presumption that the tenant had made the payment after notice had been served on him. Section 114 provides:--

'114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.'

Illustration (f) of Section 114 provides:--

'(f) That the common course of business has been followed in particular cases.'

In the present case it can be presumed that the procedure for recovery of tax was followed and notice served on the tenant for payment. It can also be presumed that no person will, in the normal course, go to discharge the liability of another person unless be is called upon to discharge that liability. The tenant can, therefore, in the present case be presumed to have paid the taxes on being called upon to pay the same by the Nagar Mahapalika under Section 516 of the Adhiniyam. It was open to the plaintiff to lead evidence to show that he had himself paid the taxes and nothing was due so that the tenant could not have been asked to pay the tax because he had discharged the liability. Under these circumstances the only presumption which can arise from the material on record is that the tenant had made the deposit of tax in accordance with Section 516 of the Adhiniyam, If that were so, the tenant will be entitled to credit it in account towards the rent due. If this amount is credited towards the rent due, the rent for more than three months will not remain due against the tenant

5. The courts below have relied upon Clause (g) of Section 108 of the Transfer of Property Act which provides:--

'(g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor,'

Learned counsel argued that this provision is not attracted because there was no evidence to prove that the lessor had neglected to make the payment. The evidence, however, goes to show that the tax for the years due upto March 1963 had been paid by the tenant in 1965 and 1966. It means that the landlord had not discharged the liability as and when it had become due and the liability had continued for two years. Learned counsel contended that the word 'neglect' means not only omission to pay but refusal to pay. According to his contention the neglect to pay tax will arise only when bill has been submitted to him, notice of demand had been given and he had refused to make the payment. There is no evidence, however, that such things had not been done. Again, under Section 114 of the Evidence Act the presumption will be that the bill had been served and the notice of demand had been given and the landlord had failed to pay. Even otherwise the word 'neglect' only means to treat carelessly; to pass by without notice; to omit by carelessness; to fail to bestow due care upon; disregard; slight; omission; uncared-for state 'Chambers's Twentieth Century Dictionary'. The word used in Section 108 Clause (g) is not wilful neglect but simple neglect. Had it been wilful neglect, something more may have been required than mere omission to pay. The term 'neglect' used in Clasue (g) of Section 108 of the Transfer of Property Act, in matters of taxation should mean non-payment of the tax at the time it is payable, and the non-payment will be deemed due to neglect in the absence of anything exceptional after reasonable time for the payment of the tax expires. In the present case reasonable time had expired. There can, therefore, be no doubt that the plaintiff had neglected to make the payment. The amount paid by the tenant was thus recoverable from the landlord and was deductible with interest from the rent. The court below thus committed no error in deducting this amount from the amount of arrears of rent alleged to be due against the defendant.

6. Learned counsel also urged that reliance placed by the courts below on Section 69 of the Contract Act was erroneous. Section 69 of the Contract Act provides:--,

'69. A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.' It may be that the learned counsel's contention prima facie, has merit because the section does not permit the deduction of the payment from the rent or adjustment towards it, but only reimbursement by the other side. It may, however, be mentioned here that in the present case the plaintiff had not paid the tax even thereafter and can be deemed to have accepted the payment made by the tenant as made on his behalf; and as the tenant was liable to pay nothing but rent, the amount can be deemed as rent paid. It is, however, not necessary in this case to consider the applicability of the section in such a case as the present, as on the basis of the provisions of the Nagar Mahapalika Adhiniyam and the Transfer of Property Act, as mentioned above, the liability of rent had already ceased to exist in respect of the amount paid by the defendant as taxes to the Nagar Mahapalika.

7. The decree of the courts below cannot, therefore, be held to suffer from any error of law. The suit filed by the plaintiff for the ejectment of the defendant was not maintainable because it had not been proved that the rent for more than three months was in arrears on the date of the notice of demand. The appeal accordingly fails and is dismissed. As no one has appeared on behalf of the respondent, there will be no order as to costs.


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