Shishu Gyan Mandir v. Narsingh Rai — 1978 DIGILAW 20 (ALL)

JUDGMENT M.P. Saxena, J. - This is a defendant's revision application under section 25 of the small Cause Courts Act against the judgment and decree dated 14.7.1976 passed by the learned District Judge, Gorakhpur, in S.C.C. Suit No. 155 of 1971. 1. Briefly stated the facts are that Nar Singh Rai and Haridwar Rai, opposite parties Nos. 1 and 2, are the owners of the accommodation in suit. It was let out to the revisionist through opposite party No. 3 on a monthly rent of Rs. 333/- on 26.6.1966. The defendant revisionist fell in arrears of rent from May, 1969. Requisite notice to quit was given to him but in vain. Hence a suit for the recovery of Rs. 9238.06 as arrears of rent and Rs. 241.34 as damages for use and occupation was filed. 2. The defendant-revisionist alone contested that suit, inter alia, on the grounds that the accommodation was pre-1951 construction and was governed by the provisions of U.P. Act III of 1947 ; that it was let out to him in July 1969 and not in June 1966 that its rent was Rs. 150/- per month and not Rs. 333/- per month ; that rent till December 1970 was paid and thereafter the plaintiff himself did not accept it and lastly, that the notice to quit was invalid. 3. The learned District Judge, Gorakhpur, came to the conclusion that the building was constructed sometime in 1965 and was not amenable to the provisions of U.P. Act III of 1947 or U P. Act XIII of 1972. He also held that the defendant No. 1, namely, Shishu Gyan Mandir is not a tenant but is a licensee and is liable to pay Rs. 150/- per month as damages. The notice to quit was held to he valid. Accordingly he dismissed the suit for ejectment but decreed it for the recovery of Rs. 5,400/- as damages for use and occupation from 15.9.1968 upto the date of the suit, viz. 15.9.1971. 4. The plaintiffs filed a revision application and the defendants filed cross- objections in this Court. Both were allowed and the case was sent back to the trial court for fresh disposal according to law. It had to he done because the trial court had committed two manifest errors of law. 15.9.1971. 4. The plaintiffs filed a revision application and the defendants filed cross- objections in this Court. Both were allowed and the case was sent back to the trial court for fresh disposal according to law. It had to he done because the trial court had committed two manifest errors of law. Firstly, both the parties had admitted that the defendant No. 1 was a tenant of this accommodation but the learned trial court weaved out a new case by holding that the said defendant was a licensee. Secondly, a number of documents were filed by the plaintiffs to establish the status of defendant No. 1 but none of them was referred to in the judgment. After remand, the learned trial court has held that the accommodation was built sometime in the year 1965 and was let out to defendant No. 1 in June 1966 on a rent of Rs. 333/- per month that rent was in arrears from May 1969 and was never offered to the plaintiffs and the defendant was liable for ejectment. The suit was decreed with costs against defendant No. 1 but was dismissed against defendant No. 2. 5. The defendant No. 1 has filed this revision application and the only ground pressed by the learned counsel for the revisionist is that there was no contract of tenancy between the plaintiffs and Raghubir Prasad Dubey on behalf of defendant No. 1 in respect of this accommodation. It is urged that Raghubir Prasad was a treasurer of Shishu Shiksha Niketan Vidyalaya. The defendant- revisionist is Shishu Gyan Mandir with which Raghubir Prasad had no concern and he was not competent to enter into any contract on its behalf. I have given my anxious consideration to the whole matter and in my judgment there is no force in the contention. For a number of reasons, the plea is not tenable. In the first place at the time of remanding the suit to the trial court for fresh disposal a clear finding was given by this court that the defendant No. 1 was a tenant of the plaintiffs in the disputed accommodation. Therefore, this question could not again be enquired into. Even if it be said that it could be done because the whole case was remanded for fresh disposal the contention is not tenable for other reasons. 6. Therefore, this question could not again be enquired into. Even if it be said that it could be done because the whole case was remanded for fresh disposal the contention is not tenable for other reasons. 6. In the second place, there is no specific plea in the memo of revision that Raghubir Prasad had no concern with Shishu Gyan Mandir and was not competent to take the premises on rent for the said defendant. In its absence the point should not receive attention of this Court. 7. Thirdly, even on the merit the learned District Judge has recorded a finding to the effect that the accommodation in suit was taken on rent by defendant No. 1 through Raghubir Prasad, its treasurer. Raghubir Prasad (P.W. 1) had himself appeared in the witness box and stated that he had taken this house on rent for Shishu Gyan Mandir in June 1966 on a rent of Rs. 333/- per month. He had also stated that he remained associated with this institution till September 1966. He was also running another institution named Shishu Shiksha Niketan Vidyalaya. A committee was managing it. By no stretch of imagination his statement could be construed to mean that he had no connection with Shishu Gyan Mandir, the defendant revisionist, in 1966. His statement could not be discredited merely on this score that he had ceased to be associated with this institution. 8. Nar Singh Rai, the plaintiff, had also examined himself and given out that the defendant-revisionist had taken this building on rent through Raghubir Prasad at Rs. 333/- per month. As against it, defendant had examined Suresh Chandra (D.W. 1) and Ravi Pratap (D.W. 2). The former simply gave out that now the institution was being run by Ravi Pratap (D.W. 2). According to him, it was taken in June 1968 on Rs. 150/- per month. His statement was far from convincing because Ravi Pratap (D.W. 2) was inclined to say that he had taken it on rent in June 1971 and Shishu Gyan Mandir was functioning from 1969. At another place he admitted that this institution was started in 1966 in the house of one Mangal Prasad. For reasons best known to the contesting defendant this Mangal Prasad was not examined. Ravi Pratap (D.W. 2) was specifically asked whether Raghubir Prasad Dubey had taken that disputed house on rent for defendant No. 1. At another place he admitted that this institution was started in 1966 in the house of one Mangal Prasad. For reasons best known to the contesting defendant this Mangal Prasad was not examined. Ravi Pratap (D.W. 2) was specifically asked whether Raghubir Prasad Dubey had taken that disputed house on rent for defendant No. 1. and he did not deny it. He simply pleaded ignorance. In the written statement the defendant No. 1 had admitted that it was taken by it on rent. Therefore, there can be no manner of doubt that the defendant revisionist had taken this house on rent through Raghubir Prasad. Another question which arises for consideration is when the premises were taken on rent. According to the plaintiff opposite parties, it was rented out in June 1966 but the defendant No. 1 gave out that it was let out in 1968. The evidence adduced by the plaintiffs fully supported their case. The learned counsel for the revisionist is inclined to discredit their testimony mainly on the grounds that Nar Singh Rai, plaintiff, had filed a revision against assessment of this house in 1968. In the memo or revision filed in 1968 he had stated that this house was completed in the latter part of 1966 and he was himself living in it. On its basis it is urged that if the house was not ready till June 1966 or the plaintiffs were living in it in 1968, it could not be let out to the defendant-revisionist in 1966. Much capital cannot be made out of this document because its contents were not put to Nar Singh Rai in the manner prescribed by Section 145 of the Eviction Act. To be more precise, he was not at all asked whether he bad alleged in the memo of revision that the house was completed in the latter part of 1966 and he was occupying in 1968. His attention was not drawn towards the specific paragraphs of the grounds of revision nor he was given an opportunity to explain them. By that as it may, the grounds of revision do not rule out the possibility of the substantial portion of the building having come into existence before June 1966. Therefore, it could be conveniently let out to the defendant-revisionist. The allegation regarding its occupation by the plaintiffs does not appear to be correct. By that as it may, the grounds of revision do not rule out the possibility of the substantial portion of the building having come into existence before June 1966. Therefore, it could be conveniently let out to the defendant-revisionist. The allegation regarding its occupation by the plaintiffs does not appear to be correct. Hence from a proper analysis of the evidence on record it is clear that the house in dispute was let out to the defendant-revisionist in June 1966 on a monthly rent of Rs. 333/-. It will not be out of place to mention here that the rate of rent has not been contested in this revision. 9. There is not an iota of evidence on record to show hat the rent due from 15.5.1969 was ever tendered to the plaintiffs-opposite parties. It was not even deposited in court and the defendant-revisionist could not claim the benefit of sections 39/40 of U.P. Act XIII of 1972. 10. For all these reasons the revision has no force and is liable to be rejected. Since the Session of Shishu Gyan Mandir (defendant-revisionist) will finish in May 1978 it will be proper if it is not required to vacate by the end of May 1978 so that the studies of children may not suffer. 11. The revision application is dismissed with cost to defendants opposite party Nos. 1 and 2. The defendant -revisionist is allowed time upto 31.5.1978 to vacate the disputed premises.