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Faiyaz Haider and ors. Vs. L. Radhey Raman - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1949All691
AppellantFaiyaz Haider and ors.
RespondentL. Radhey Raman
Excerpt:
.....view is clearly untenable. these words clearly indicate that the filing of the suit itself is not a notice of demand :that must be some other notice given before the suit is..........rs. 53-5-0 should be paid by 17th may 1947. it was also agreed that if these two sums were not paid, execution would proceed. arrears were not paid and a fresh application for execution was made on 18th july 1947, stating that the whole sum of rs. 153-5.0 had not been paid. in this application objections were filed under section 47, civil p.c., by the judgment-debtors appellants. they objected that they were not bound by the compromise; that the rent upto 30th april 1916, at the enhanced rent had been paid and the decree had ceased to be operative. it was accordingly prayed that the execution proceedings be dismissed. in the meanwhile, the u.p. (temporary) control of rent and eviction act, 1947, came into force on 1st october 1946. the question, therefore, arose in considering the.....
Judgment:

Kidwai, J.

1. This appeal arises out of proceedings in execution of a decree for eviction.

2. The respondent is the owner of a house in the city of Lucknow which is occupied on rent by the appellants. There was default in payment of rent on 30th August 1944, and an erresrs decree for arrears as well as for ejectment was passed against the appellants. On 30th September. 1944, by reason of a compromise arrived at between the parties, the decree was modified and it was provided that the arrears then due would be paid in four equal monthly instalments and that in future the rent of Rs. 13-2-0 would be paid on the 15th of the following month. It seems that there were further defaults and execution proceedings were taken. One of these execution proceedings was commenced by an application dated 12th September 1946. In these proceedings there was a further compromise on 15th February 1946 (1947?) by which it was agreed that out of the arrears Rs. 100 should be paid by 12th April 1947, and the balance Rs. 53-5-0 should be paid by 17th May 1947. It was also agreed that if these two sums were not paid, execution would proceed. Arrears were not paid and a fresh application for execution was made on 18th July 1947, stating that the whole sum of Rs. 153-5.0 had not been paid. In this application objections were filed under Section 47, Civil P.C., by the judgment-debtors appellants. They objected that they were not bound by the compromise; that the rent upto 30th April 1916, at the enhanced rent had been paid and the decree had ceased to be operative. It was accordingly prayed that the execution proceedings be dismissed. In the meanwhile, the U.P. (Temporary) Control of Rent and Eviction Act, 1947, came into force on 1st October 1946. The question, therefore, arose in considering the application for execution dated 18th July 1947, whether the requirements of Sections 3 and 14 of that Act were satisfied. Both the Courts below have held that there was sufficient compliance with the provisions of Section 3 (a) of the Act in so far as notice of demand from the landlord was concerned and that in any case the judgment-debtors were net entitled to the benefit of Section 14 because they had failed to comply with the requirements of the proviso to that section.

3. The Courts below have construed the filing of the application for execution and the notice issued by the Court to the judgment-debtors as notice of demand. This view is clearly untenable. If such a construction were placed upon the provisions of Section 3 (a), then Section 3 would become meaningless. Section 3 provides that no suit shall be filed except on one or more of the following grounds, and one of the grounds mentioned is that rent has not been paid within one month of the service upon him of the notice of demand. These words clearly indicate that the filing of the suit itself is not a notice of demand : that must be some other notice given before the suit is filed.

4. The same analogy would apply to an application for execution and it must be held that no application for execution can be proceeded with unless the rent has remained unpaid for a month after the notice' demanding it has been served upon the judgment-debtor.

5. On the other point, however, the decisions of the Courts below must be upheld. The proviso to Section 14 reads as follows:

Provided that the tenant agrees to pay to the landlord 'reasonable annual rent' or the rent payable by him before the passing of the decree, whichever is higher.

In the present case there is no such agreement. Even in the objections which were filed to the execution proceedings under Section 47, Civil P.C., there was no such offer made.

6. It is true that there was an enhancement of rent in 1946 but that was made under the orders issued by the Government under the Defence of India Rules on 10th May 1945 and was an enhancement of 6 1/4 per cent. That enhancement cannot take the place of the agreement stipulated for by Section 14 because under the Temporary Control of Rent and Eviction Act reasonable annual rent has been defined as meaning the rent assessed on the accommodation together with 25 per cent, thereon. In view of the fact, therefore, that there is no agreement to pay this rent, the judgment-debtors are not entitled to the benefit of Section 14 of the Act.

7. The appeal, therefore, fails and is dismissed with costs.

8. The learned advocate for the judgment-debtors prays that he may be given two months time within which to vacate the house. The learned Counsel for the decree-holder agrees that, if the rent is paid regularly the judgment, debtors may be given time till 31st December 1948 within which to vacate the house. In view of this agreement, the appellants are given time till 31st December 1948, to vacate the house. Appellant 2, Syed Amir Haider is present in Court and he undertakes to vacate the house by 31st December 1948.


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