Prakash Chand v. Sardar Narendra Singh — 1988 DIGILAW 1084 (ALL)

JUDGMENT : MISRA, J. 1. This is a defendant's revision against the judgment dated 26th February 1988 passed by the First Additional District Judge, Saharanpur in Small Cause Court Suit No. 4 of 1984 valued at Rs.9000/-. 2. The plaintiff-respondent had filed a suit against the defendant-applicant for arrears of rent, recovery of possession and damages for use and occupation in respect of a shop situate at Court Road in the town of Saharanpur. The trial court has decreed the suit for ejectment of the defendant from the shop in suit as well as for arrears of rent at the rate of Rs.250/- per month from 1st April 1980 to 22nd August, 1983 amounting to Rs.9000/- as prayed by the plaintiff and thereafter for damages at the rate of Rs.250/- per month from the date of the suit till the plaintiff-respondent gets possession over the shop in dispute. The defendant in his written statement has disputed the rate of rent and has alleged that he had taken the shop in dispute from Baisakha Singh, father of the plaintiff, on a rent of Rs.50/-. Subsequently, the written statement was amended and a plea was taken that the contract of tenancy was void since the shop was let out on 16th September, 1977. On the other hand, the case of the plaintiff was that the shop was let out on 1st January, 1976. From a perusal of the trial court record which was produced before me, I find that only the following two issues were raised in this case vide order-sheet entry dated 7th January 1987 : "(1) When was the building in suit let out and what is the rate of rent ? Its effect ? (2) Relief ?" It has also been stated in the order-sheet that no other issue arises nor was pressed before the trial court. The parties, therefore, went to trial and produced evidence in regard to the said issues. After the close of evidence and on hearing learned counsel for the parties, the trial court framed points for determination. With regard to Issue no. 1 the trial court, on appraisal of evidence, came to the conclusion that the rate of rent settled was Rs. 250/- per month and not Rs.50/- as alleged by the defendant. This finding recorded by the trial court has not been challenged before me. With regard to Issue no. 1 the trial court, on appraisal of evidence, came to the conclusion that the rate of rent settled was Rs. 250/- per month and not Rs.50/- as alleged by the defendant. This finding recorded by the trial court has not been challenged before me. As regards the date of commencement of tenancy, the trial court, in appraisal of evidence, came to the conclusion that the tenancy commenced with effect from 1st January 1976 as alleged by the plaintiff and not with effect from 16th September, 1977 as alleged by the defendant. The other findings recorded by the trial court that the defendant committed default in the payment of rent and was in arrears of rent and hence was liable to be ejected have also not been challenged before me. The grievance raised by the learned counsel for the defendant-applicant before me is that in the impugned judgment, the trial court has not dealt with the controversy as to when the building was let out to the defendant, although learned counsel admits that on appraisal of evidence a finding in this connection has undoubtedly been recorded by the trial court in it's judgment. The argument of the learned counsel proceeds to say that no speaking order has been passed by the court in this behalf and that being so the said order is liable to be interfered with by this Court in exercise of its revisional power. I, therefore, proceed to examine this contention raised by the learned counsel for the applicant. 3. At page 4 of the judgment the trial court has noticed the case of the plaintiff that after negotiations with the defendant, rent was settled at Rs.250/- and in pursuance of the aforesaid settlement the defendant occupied the premises with effect from January 1976. He continued paying rent right upto 31st March 1980 and thereafter defaulted in the matter of payment of rent. In support of his aforesaid plea, both with regard to the rate of rent as well as commencement of the tenancy, the plaintiff examined himself and the said evidence was also corroborated by the evidence of his witness Sri Jogender Singh. He continued paying rent right upto 31st March 1980 and thereafter defaulted in the matter of payment of rent. In support of his aforesaid plea, both with regard to the rate of rent as well as commencement of the tenancy, the plaintiff examined himself and the said evidence was also corroborated by the evidence of his witness Sri Jogender Singh. It has been stated by the trial court in the judgment that the said two witnesses were cross- examined at length by the learned counsel for the defendant but nothing has come out from their cross-examination which may go to show that their oral testimony is not reliable and convincing. 4. Thereafter the trial court proceeded to examine the dispute regarding rate of rent. It was alleged by the plaintiff that a rent receipt was also issued on 11th March 1980 and it was signed by the defendant. The said signatures were, however, denied and the parties led evidence including expert evidence regarding signature on the said rent receipt and ultimately the court believed the case of the plaintiff regarding rate of rent. The evidence of the defendant too was appraised by the trial court and the same was found to be not reliable in regard to both, the rate of rent as well as the date of commencement of the tenancy. Besides this, the trial court has in the impugned judgment also relied upon as a circumstance that in the reply notice the defendant did not allege at all that he had taken the shop in dispute on rent from Baisakha Singh, father of the plaintiff, on 16th September 1977. Absence of the same was, judged in in the light of oral evidence produced by the parties and ultimately the trial court came to the conclusion that oral evidence regarding contract of letting now sought to be adduced by the defendant "after the amendment in the written statement," was an after thought and does not deserve to be accepted. The trial court also found that there was no documentary evidence to support the said version. Therefore, on appraisal of the oral evidence led by the parties and the circumstantial evidence as stated above, the trial court disbelieved the case of the defendant that the tenancy commenced with effect from 15th September, 1977 and believed the case of the plaintiff that it commenced with effect from 1st January 1976. Therefore, on appraisal of the oral evidence led by the parties and the circumstantial evidence as stated above, the trial court disbelieved the case of the defendant that the tenancy commenced with effect from 15th September, 1977 and believed the case of the plaintiff that it commenced with effect from 1st January 1976. Thus, I find that the first contention raised by the learned counsel for the applicant that no speaking order has been passed by the trial court with regard to the date of commencement of tenancy is devoid of force. The other submission made by the learned counsel for the applicant is that the said finding of fact so arrived by the trial court is not in accordance with law and is liable to be interfered with in revision by this court. This necessitates the examination of the scope of interference under Section 25 of the Provincial Small Causes Courts Act. It has been repeatedly held that it is well- settled that while exercising jurisdiction under Section 25, it is not open to the court to reassess evidence or to discard the testimony of witnesses which may have been found trustworthy by the trial court. It is also not open to the court to interfere with the inference drawn by the trial court. The court has limited jurisdiction to review the judgment and ascertain as to whether any miscarriage of justice has been caused to the parties. In considering that question it is not open to the court to review the findings of fact recorded by the trial court even if two views may be possible on the appreciation of evidence. Admittedly no such situation arises in the present case inasmuch as no error has been committed by the trial court so as to warrant interference by this Court in revision on a finding of fact regarding the date of commencement of tenancy arrived at on appreciation of evidence. 5. In the case of 645645645645, a Division Bench of this Court has held that while exercising power under Section 25 of the Provincial Small Cause Courts Act, the District Judge is not empowered to look into the evidence of the parties and to decide whether the finding of fact arrived at by the courts below was justified by the evidence on record or not. This is because if the revisional court interferes, it will constitute itself into a court of appeal. Therefore, as held by this Court in the ease of Lala Babu Lal v. Pt. Jugla Saran, 1957 AWR 474, findings of fact arrived at, after the consideration of evidence must be accepted and cannot be challenged' in revision. IN the latest case of this court in the case of Messrs Coiltech India (Pvt.) Ltd. v. Suresh Chand Oswal, 1985 ALJ 214 at p. 218, it has been held that a finding of fact arrived at by the trial court which is supported by oral and documentary evidence and circumstances on record cannot be assailed in revision under Section 25 of the Provincial Small Couse Courts Act. 6. In Hari Shankar v. Girdharilal, AIR 1963 SC 698 , the Supreme Court laid down that the decision given in accordance with law cannot be interfered with by the revisional court except on certain error of law. This view was also taken by the Supreme Court in the case of M. A. Naicker v. Seth Mangra, AIR 1969 SC 1344 . In the case of Laxmi Kishore v. H P. Shukla, 1979 AWC 746, it was held by this court that while exercising revisional power under Section 25 of the Provincial Small Causes Courts Act, the court does no possess jurisdiction to determine issues of fact itself by entering into the evidence and assessing it. There are various other cases of this court as well as of the Supreme Court which are in conformity with the above principles of law and the same need not be cited here. After hearing learned counsel for the applicant, and on an examination of the said finding in the judgment of the trial court and for the principles of law mentioned above, I do not agree with the learned counsel for the applicant that the said finding arrived at by the trial court is not in accordance with law. In my opinion, the trial court was right in law in holding that the tenancy in question commenced with effect from January 1976. 7. In my opinion, the trial court was right in law in holding that the tenancy in question commenced with effect from January 1976. 7. The next submission made by the learned counsel for the applicant is in the alternative and is based on the premises that if the aforesaid finding regarding commencement of tenancy is not in accordance with law, then the suit in question could not be instituted by the plaintiff-respondent in the Small Cause Court. The argument proceeds that in case the tenancy commenced form 16th September, 1977 the same was hit by Section 23 of the Contract Act and by Section 13 of U. P. Act XIII of 1972 and in case the tenancy was void, the suit was not cognizable by the Judge Small Cause Court. Reliance in this connection has been placed by the learned counsel for the applicant on two cases of this Court in the case of Geep Industrial Syndicate Ltd. Allahabad v. Rent Control and Eviction Officer, Allahabad, 1982 AWC 461 and in the case of Navin Chandra Sharma v. Vlth Additional District and Sessions Judge, Meerut, 1983 (1) ARC 50. These cases have, however, been considered and distinguished in a later decision of this Court in the case of Smt. Ram Sakhi Dwivedi v. Rama Kant Gupta, 1988 (2) ARC 164. In the case of Geep Industrial Syndicate Ltd. (supra) it has been held that a letting which is not permitted by law will not confer title of tenant on the person occupying the premises. In such a situation the court said that the Rent Control and Eviction Officer would be entitled to pass an order of allotment. therefore, it was held by this court in para 19 of its judgment in the case of Smt. Ram Sakhi Dwivedi (supra) that the proposition laid down by the Division Bench in the case of Geep Industrial Syndicate Ltd. (supra) is in consonance with the other authorities. To take the said view, the Division Bench relied upon the ratio in the case of Murlidhar Agarwal v. State of U. P., AIR 1974 SC 1924 . To take the said view, the Division Bench relied upon the ratio in the case of Murlidhar Agarwal v. State of U. P., AIR 1974 SC 1924 . In that case a lease was made in violation of section 7 (2) of 1947 Act and their Lordships held as follows :- "A lease made in violation of the provisions of Section 7 (2) would be valid between the parties and would create the relationship of landlord and tenant between them although it might not bind the authorities concerned. therefore, the lessee who had been paying the rent to the lessor was a tenant and permission under Section 3 to file a suit for eviction was necessary." 8. The case of Navin Chandra Sharma (supra) has also been noticed in paragraph 23 of the judgment in the case of Smt. Ram Sakhi Dwivedi's case (supra) and it has been rightly held that the case of Murlidhar Agarwal (supra) decided by the Supreme Court was not brought to the notice of the Bench of this Court which decided the case of Navin Chandra Sharma. Thus right from Murlidhar Agrawal's case there was no difference on the consensus about the principle that the lease would be binding between the plaintiff and the defendant and would be void only against the authority created under the said statute. Undisputedly the defendant in the present case has accepted the relationship of landlord and tenant and paid rent to the plaintiff-landlord right up from the year 1976 to 1980 and had also executed a rent receipt which contained the signature of the defendant about the said relationship which was found proved by the trial court as alleged by the plaintiff-landlord. Further, I find that the aforesaid view taken in the case of Smt. Ram Sakhi Owivedi (supra) has also been followed by a learned single Judge of this Court in the case of Ram Gopal Rathi v. Illrd Additional District Judge, Agra, 1988 (2) ARC 190. The learned Judge deciding this case also relied upon the ratio in the case of Murlidhar Agarwal as well as in the case of Nanakram v. Kundalrai, AIR 1986 SC 1194 . The learned Judge deciding this case also relied upon the ratio in the case of Murlidhar Agarwal as well as in the case of Nanakram v. Kundalrai, AIR 1986 SC 1194 . In the case of Nanakram, the Supreme Court held that there was no reason why the lease between the landlord and tenant although It may be inconsistent with clause 22 of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, should not be binding as between the parties thereto and if the lease is not void, it is not open to either party to avoid the lease. It was, therefore, ultimately held in the said case as follows :- "The parties are thus bound as between them to observe the conditions of the lease and it cannot be assailed by either party in a proceeding between them." Having given my anxious thought and consideration to the argument advanced by the learned counsel for the applicant, I find myself in agreement with the view expressed in the case of Smt. Ram Sakhi Dwivedi (supra) and the case of Ram Gopal Rathi (supra). In my opinion, the distinction sought to be drawn by the learned counsel for the applicant is without substance and the case of Geep Industrial Syndicate Ltd. (supra) does not support the stand of the applicant and that the case of Navin Chandra Sharma (supra) is clearly distinguishable. In this situation, I find no force in the submissions made by the learned counsel for the applicant that the contract of tenancy being void no suit could be founded on the same in the court of Judge Small Causes. 9. The upshot of the above discussion is that all the contentions raised by Sri Ravi Kiran Jain the learned counsel for the applicant are hereby repelled and it is held that there is no error of law involved in the impugned order passed by the trial court. 10. That apart, I find that in the present case the relationship of landlord and tenant is not denied. The finding of the trial court with regard to the rate of rent and the arrears of rent and damages also is not challenged. 10. That apart, I find that in the present case the relationship of landlord and tenant is not denied. The finding of the trial court with regard to the rate of rent and the arrears of rent and damages also is not challenged. Therefore, on the facts of this case even if a plea of lack of jurisdiction of the trial court is made out, I would not like to exercise my jurisdiction under Section 25 of the Provincial Small Cause Courts Act as held by the Kerala High Court in the case of Vishnu Bhasmartithaya v. Kunungal Kannan, AIR 1962 Kerala 23s. In view of the above, the revision fails and is dismiseed with costs. Interim order passed in the case is hereby vacated. 11. Office is directed to send down the lower court record of the case to the court concerned within a week from today. Revision dismissed.