Dildar Hussain v. IVth Additional District Judge — 1982 DIGILAW 1124 (ALL)

JUDGMENT A.N. Verma, J. - This is a tenant's petition. It is directed against a judgment and order passed by a learned IV Additional District Judge, Bijnor date 26.11.1979 dismissing a revision filed by the petitioner under section 25 of the Provincial Small Cause Court Act. The revision itself was directed against a decree passed by the trial court whereby the suit of the plaintiff respondent for ejectment of the petitioner from the premises in dispute as well as the recovery of Rs. 1,700/- as arrears of rent and mesne profits at the rate of Rs. 50/- per month was decree. 2. The aforesaid suit was filed for the reliefs mentioned above on the allegations that the defendants namely (the petitioner here) was a tenant on behalf of the plaintiff on a monthly rental of Rs. 40/- He fell in arrears of rent for the period beginning 1st of January, 1969. A composite notice was, thereafter, served on the defendant demanding the arrears of rent and terminating his tenancy. The said notice was duly served on the defendant who neither paid the rent demanded nor vacated the disputed accommodation. Hence the suit. 3. The defence of the petitioner was that the rate of rent was Rs. 16/- per month and not Rs. 40/-. His further defence was that he had already paid the entire arrears of rent due upto September, 1970. The notice served on the defendant was invalid and the plaintiff was therefore not entitled to any reliefs claimed in the suit. 4. Purporting to take the benefit of section 20 sub-section (4) of U.P. Act No. 13 of 1972 the petitioner made certain deposits in the court. The benefit has been refused to the petitioner on the finding that he did not deposit the entire amount which was required to be deposited under that provision. 5. On the pleadings of the parties relevant issues were framed by the trial court. Issues Nos. 1 and 2 were: 1. What is the rate of rent ? 2. Whether the defendant has committed default in payment of rent ? 6. The trial court answered both these issues in favour of the plaintiff and against the petitioner. It held that the rate of rent was Rs. 40/- as claimed by the plaintiff and that the defendant has committed any default. 7. What is the rate of rent ? 2. Whether the defendant has committed default in payment of rent ? 6. The trial court answered both these issues in favour of the plaintiff and against the petitioner. It held that the rate of rent was Rs. 40/- as claimed by the plaintiff and that the defendant has committed any default. 7. During the pendency of the suit, the original plaintiff namely Smt. Masooman died. Thereupon, a substitution application was filed by Abdul Hannan one of her sons claiming to be the sole heir and legal representative of the original plaintiff on the basis of a will. This application was contested by the petitioner but was allowed by the trial court. The substitution was made in favour of the respondent No. 3 Abdul Hannan. On the findings referred above, the suit of the plaintiff-respondent was decreed both for the reliefs of ejectment as well as rent and damages. 8. Aggrieved by the decree passed by the trial court, the petitioner filed a revision under section 25 of the Provincial Small Cause Court Act but without any success. 9. Three points have been urged in support of the petition by Shri K.L. Grover, learned counsel for the petitioner. The first submission was that the courts below ought to have given to him the benefit of section 20 sub-section (4). The failure to deposit the amount of interest ought to have been overlooked. I find no merit in this contention. Section 20 sub-section (4) enjoined the petitioner to pay the amount of interest. It was a requirement of a mandatory character. The courts below were therefore, right in refusing to give the benefit of that provision to the petitioner. 10. The second submission of Shri Grover was that on the death of Mst. Masooman only one of her three sons was substituted. The will relied on by Abdul Hannan was invalid as it was not prove that the other heirs of Smt. Masooman had given their consent in favour of Abdul Hannan. The result was that the entire suit had become incompetent. 11. I am unable to accept the above contention. Learned counsel for the petitioner placed reliance on the statement of law contained in Mulla's Mohammadan Law XIVth Ed. paragraph 117 at page 122. The result was that the entire suit had become incompetent. 11. I am unable to accept the above contention. Learned counsel for the petitioner placed reliance on the statement of law contained in Mulla's Mohammadan Law XIVth Ed. paragraph 117 at page 122. The said paragraph says : "A bequest to an heir is not valied unless the heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. Explanation-In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution will, but to the time of the testator's death." 12. In my opinion, the aforesaid statement of law is of no assistance. Abdul Hannan in his application for substitution asserted that a will had been executed in his favour by Smt. Masooman Bibi, giving the entire share to him. The will on the face of it cannot be said to be invalid. Paragraph 117 of the statement of law quoted above, merely says that it will not be valid against the heirs who have been excluded from the will unless they given their consent. They only objection which was taken on behalf of the petitioner in his reply to the substitution application was that Smt. Masooman Bibi has left some other natural heris who had not applied for substitution. It was not stated by the petitioner that the other heirs had not consented to the bequest in favour of Abdul Hannan. In these circumstances and in the absence of any evidence to show that the other heirs had not consented to the bequest, the trial court was right in substituting Abdul Hannan as the heir and legal representative of Smt. Masooman,. In the facts and circumstances of the present case, therefore, it cannot be said that the entire suit had become incompetent. 13. The last submission of the learned counsel for the petitioner was that the judgment of the revisional court in so far as the issues of the rate of rent and default are concerned is no judgment in the eye of law. 13. The last submission of the learned counsel for the petitioner was that the judgment of the revisional court in so far as the issues of the rate of rent and default are concerned is no judgment in the eye of law. It was submitted that even if it be assumed that the revisional court had a limited jurisdiction under section 25 of the Provincial Small Cause Court Act, it was still required to write a judgment indicating that it had applied its mind to the controversies involved in the case. The present judgment does not contain any such indication. 14. Having perused the judgment of the revisional court and having heard learned counsel for the parties. I am of the opinion that the above contention is well founded. After setting out the pleadings of the parties and the findings recorded by the trial court all that the revisional court has had to say on the issue of default and the rate of rent is as follows: "A perusal of the judgment makes it clear that the evidence of the parties, their versions were considered by the trial court and findings were recorded therefore." In my opinion, the revisional court did not perform its basic duty of writing a judgment which may give some indication that it had applied its mind to the controversies involved in the case. The discussion quoted above does not indicate at all whether the court was even aware of the controversies involved in the case. The treatment of the aforesaid two issues by the revisional court is far too sketchy to merit the approval of this court. The complaint of the petitioner that the revisional court has not written a proper judgment seems fully justified. I am expressing no opinion on the merits of the aforesaid two issues namely default and the rate of rent. It will be for the revisional court to dispose of those issues afresh according to law and in the light of the observations made in the judgment. 15. I am expressing no opinion on the merits of the aforesaid two issues namely default and the rate of rent. It will be for the revisional court to dispose of those issues afresh according to law and in the light of the observations made in the judgment. 15. The result of the aforesaid discussion therefore, is that whereas the findings of the court below on the question whether the petitioner was entitled to the benefit of section 20(4) and whether Addul Hannan was rightly substituted in place of the original plaintiff are affirmed, the rest of judgment of the revisional court is liable to be quashed for the reasons stated above. 16. In the result, the petition succeeds and is allowed in part. The impugned order passed by the IV Additional District Judge is quashed subject to the observations made hereinabove. The said court will now dispose of the revision afresh according to law. The revisional court shall try and dispose of the revision within one month from the date on which either party produces a certified copy of the judgment of this court The parties shall bear their own costs of this petition.