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2002 DIGILAW 1350 (ALL)

SHAMBHU SHARAN MATHUR v. DILIP KUMAR TANDON

2002-09-25

U.S.TRIPATHI

body2002
U. S. TRIPATHI, J. This revision under Section 25 of Provincial Small Cause Courts Act has been directed against the judgment and decree dated 18-7-2002, passed by Addl. District Judge/judge Small Causes Court, Moradabad, in S. C. C. Suit No. 3 of 1999, decreeing the suit of the opposite party for ejectment of applicant, arrears of rent and damages. 2. Opposite party filed a suit against the applicant for his ejectment, arrears of rent amounting to Rs. 32,400 and damages at the rate of Rs. 30 per day with the allegations that he was owner/landlord of the premises in suit and opposite party was its tenant on monthly rental of Rs. 900/ -. The tenanted premises consisted of three room, kitchen, latrine and bath rooms, fully detailed in Schedule Kha of the plaint. The original tenancy was between Smt. Prabha Rani Tandon, the mother of the opposite party and the applicant. Smt. Prabha Rani Tandon died on 4-7-95 and thereafter the opposite party became owner/landlord. The premises in question was constructed in the year 1988 and, therefore, the provisions of U. P. Act No. 13 of 1972 were not applicable to it. After death of the mother of the opposite party the applicant failed to pay rent from July, 1995. He also sub-let one room of the premises in question to one Sunil Kumar Sharma and was realising rent from him. The opposite party served a composite notice of demand and ejectment on the applicant on 17-7-1998 through registered post demanding rent within a period of thirty days and terminating his tenancy after one month. The above notice was served on the applicant on 20-7-1998. The applicant gave a wrong reply to the said notice on 12-8-98. Subsequently, Sunil Kumar handed over possession of the room in his occupation to opposite party on 31-8-98. The applicant neither paid rent nor vacated the premises in question; hence the suit. 3. The defendant applicant filed written statement admitting the relationship of landlord and tenant between the parties, but contested the suit on the grounds inter-alia that the rate of rent was only Rs. 200/- per month. The premises in question was constructed in the year 1982 and, therefore, the provisions of U. P. Act No. 13 of 1972 were applicable to it. He further contended that he paid rent of the premises in question up to 30th April, 1998. 200/- per month. The premises in question was constructed in the year 1982 and, therefore, the provisions of U. P. Act No. 13 of 1972 were applicable to it. He further contended that he paid rent of the premises in question up to 30th April, 1998. But after receipt of notice he again remitted the rent demanded by the opposite party at the rate of Rs. 200/- per month through money order, which the opposite party refused to accept. He had not sub-let any room to any Sunil Kumar. The accommodation in his tenancy consisted of two rooms, kitchen, latrine and bath room and the alleged room in the occupation of Suresh Chandra was not part of his tenanted portion. 4. The learned Judge Small Causes Court framed necessary issues and after considering evidence of the parties held that the premises in question was constructed in the year 1988 and the provisions of U. P. Act No. 13 of 1972 were not applicable to it. The rate of rent was Rs. 900/- per month. The defendant/applicant was in arrears of rent from 1-7-1995 and had sub-let a room of his tenanted portion to one Sunil Kumar. He further held that the receipt of notice was admitted and the notice was valid. With these findings the learned JSCC decreed the suit for ejectment of applicant from the premises in question and for recovery of arrears of rent amounting to Rs. 32,400/- along with the interest at the rate of 9% per annum and damages at the rate of Rs. 30/- per day. 5. Aggrieved with the above judgment and decree of the trial Court the applicant has come up in this revision. 6. Heard Sri Prakash Krishna, learned counsel for the applicant and Sri K. J. Arora, learned counsel for the opposite party and perused the record. 7. On submissions of the learned counsel for the parties the following points arose for determination in this revision: (1) Whether U. P. Act No. 13 of 1972 was applicable to the premises in question? (2) What was the rate of rent? (3) What was the accommodation in the tenanted portion of the applicant and whether he had sub-let a room to one Sunil Kumar? (4) Whether the applicant committed default in payment of rent? FINDINGs 8. (2) What was the rate of rent? (3) What was the accommodation in the tenanted portion of the applicant and whether he had sub-let a room to one Sunil Kumar? (4) Whether the applicant committed default in payment of rent? FINDINGs 8. Point No. 1.- The case of landlord/opposite party was that the house in question was constructed in the year 1988 and thereby the provisions of U. P. Act No. 13 of 1972 are not applicable and while the case of applicant was that it was constructed in the year 1982 and is governed by the provisions of the said Act. The learned JSCC on the basis of the evidence of the parties recorded a finding that the construction of the house completed in the year 1988. He relied on the permission of Nagar Palika Bilari, dated 3-10-1988 and evidence of opposite party that the permission for construction of the house was obtained on 3-10-1988 and the construction completed in the year 1988. The applicant filed extract of quinquennial assessment of the year 1975-76 to 1986-87. 8-1. The year of construction of building is material to decide the applicability of U. P. Act No. 13 of 1972 as held by Apex Court in the case of Ram Swarup Rai v. Smt. Leelawati, 1990 ARC 466 (SC), that the landlord who seeks exemption of applicability of the Act must prove that extent. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that building has been constructed beyond a period of ten years, but it is for the landlord to make out that the construction has been completed within ten years of the suit. This is sensibly, not merely because the statute expressly states so and the setting necessarily applies so, but also because it is the landlord who knows best when the building was completed and not the tenant. As between the two, the owner of the building must tell the Court when the building was constructed and not the tenant thereof. This is sensibly, not merely because the statute expressly states so and the setting necessarily applies so, but also because it is the landlord who knows best when the building was completed and not the tenant. As between the two, the owner of the building must tell the Court when the building was constructed and not the tenant thereof. Speaking generally it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases, where the landlord is a purchaser from another he will have to depend on his assignor to prove the fact. 8-2. The alleged permission of Nagar Palika Bilari dated 3-10- 1988 relied on by the trial Court did not accompany any sanctioned plan though the opposite party admitted that sanction plan was attached with the letter but he did not file said map. On the own admission of the opposite party the above document did not mention boundary, location etc. of the alleged constructions. It was also not clear from the above document whether the construction was to be made after demolishing old one or a fresh one. The trial Court observed that the alleged quinquennial assessment was in respect of old house, but there is no such clarification from the side of the opposite party. In the absence of any such clarification and absence of sanctioned plan, it could not be held that the letter dated 3-10-1988 related to the premises in question. 8-3. It is true that the revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act is not as wide as the appellate jurisdiction under Section 96 C. P. C. yet in a case of this type, the revisional authority is entitled to point out the legal error and rectify the defect, (vide Jagdish Prasad v. Smt. Angoori Devi, AIR 1984 S. C. 1447 ). 8-4. 8-4. It is also settled law that the Revisional Court should not interfere with the finding of fact, but where the finding of fact is based on no evidence or opposed to the totality of the evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead then the revisional Court will in exercise of its discretion intervene to prevent miscarriage of justice (vide M/s Dutta Cycle Stores and others v. Smt. Geeta Devi Sultania, AIR 1990 S. C. 656 ). 8-5. As already held above in the absence of sanctioned plan, which the landlord/opposite party did not produce before the Court, though he had its copy with him, the letter dated 3-10-88 was not sufficient to prove the alleged date of construction of the building in question as no other document from the Nagar Palika was produced by the landlord/opposite party and it was not shown by reliable evidence that the quinquennial assessment relied on by the applicant did not relate to the premises in question. Therefore, the above finding of the trial Court that the premises in question was constructed in the year 1988 was based on no evidence and is perverse. Therefore, it can be interfered with in exercise of revisional jurisdiction of this Court. The above finding of trial Court therefore, cannot be sustained and is accordingly set aside. 9. Point No. 2.- The opposite party landlord contended that the rate of rent was Rs. 900/- p. m. while the applicant contended that the rate of rent was Rs. 200/- per month. Admittedly no rent note was executed between the parties. According to the applicant he was paying rent at the rate of Rs. 200/- per month, but no receipt was issued. It is also not disputed that no rent receipt was issued in respect of the rent paid by the applicant. The trial Court based his finding that the rate of rent of the premises in question was Rs. 900/- per month on the basis of the rent receipts issued in favour of Ayodhya Distillery, the previous tenant of the premises in question and on the ground that the applicant/defendant became tenant of the premises in question after its vacation by Ayodhya Distillery. It was admitted to the opposite party that there was no document to prove the rate of rent agreed or paid by the applicant. It was admitted to the opposite party that there was no document to prove the rate of rent agreed or paid by the applicant. He also admitted that there was no rent note between his mother, the previous landlady and Ayodhya Distillery, the previous tenant. The rent receipts (Paper No. 47c to 50c) issued to Ayodhya Distillery were not executed in his presence, but were signed in his presence. He further admitted that his mother, the previous landlady had not signed rent receipts, but the above rent receipts were signed by him on behalf of his mother and original receipts were given to Ayodhya Distillery (vide Annexure 3 ). None of the officers of the Ayodhya Distillery was examined to prove the above receipts. The applicant/tenant was not a party to the above documents. Apparently those documents appeared doubtful and possibility that those were prepared for the purposes of the case by the applicant himself, could not be easily ruled out in the facts and circumstances of the case. The finding of the Trial Court that the evidence of the opposite party/landlord regarding rate of rent was believable was perverse as the reliable document such as the account books and Income Tax and Sales Tax returns of Ayodhya Distillery were not produced and the alleged rent receipts also did not bear the signatures of the landlady. There was also no explanation as to why the landlady on whose behalf receipts were issued did not sign the same. This indicated that the finding of the trial Court regarding rate of rent was also perverse and based on no evidence. Therefore, the above finding can also not be sustained and is accordingly set aside. 10. Point No. 3.- The contention of the learned counsel for the applicant was that the tenanted portion in occupation of applicant consisted of three rooms, kitchen, latrine and bath room and the applicant sub-let one room to one Sunil Kumar. The applicant/tenant contended that the portion in occupation of his tenancy consisted of only two rooms, kitchen, latrine and bath room since the inception of tenancy and he had not sub-let any room to any one. 10-1. It is not disputed that the burden of proving sub-letting is on the landlord. The applicant/tenant contended that the portion in occupation of his tenancy consisted of only two rooms, kitchen, latrine and bath room since the inception of tenancy and he had not sub-let any room to any one. 10-1. It is not disputed that the burden of proving sub-letting is on the landlord. Regarding extent of occupation in the tenancy of the applicant, the trial Court relied on the evidence of Manoj Kumar Saxena, P. W. 2, whose evidence was that three rooms, kitchen, latrine and bath room were let out to Ayodhya Distillery. There was no document showing the extent of occupation let out to the applicant. Further reliance was placed on the note written by Sunil Kumar Sharma on 31-3-98 in favour of landlord/opposite party by which he handed over possession of one room, alleging that it was given in his tenancy by the applicant/tenant. The applicant was not a party to the said document. Sunil Kumar, alleged executant of the said document was also not examined in the Court and the applicant was debarred from cross-examining that witness. In these circumstances the trial Court again committed perversity in placing reliance on the alleged document executed by one Sunil Kumar and not proved by examining him and recorded the finding on the basis of inadmissible evidence. Therefore, the above finding of the trial Court can also not be sustained as it suffers from perversity and based on inadmissible evidence and the same is set aside. 11. Point No. 4.- The question of default is based on rate of rent and the applicability of provisions of U. P. Act No. 13 of 1972. This Court in exercise of revisional jurisdiction cannot substitute a finding of fact. Therefore, the case has to be sent back for decision afresh and, therefore, at this stage the question of default as well as the question of validity of notice cannot be ascertained as the trial Court has to record a fresh finding on these points on the basis of the applicability of provisions of U. P. Act No. 13 of 1972 and rate of rent. Point answered accordingly. 11-1. In view of the above discussions and observations, find that the finding of fact recorded by the trial Court on the points mentioned above are perverse, based on no evidence, or inadmissible evidence. Therefore, can be interfered with in exercise of revisional jurisdiction of this Court. Point answered accordingly. 11-1. In view of the above discussions and observations, find that the finding of fact recorded by the trial Court on the points mentioned above are perverse, based on no evidence, or inadmissible evidence. Therefore, can be interfered with in exercise of revisional jurisdiction of this Court. The above findings of the Trial Court, therefore, cannot be sustained. Since this Court cannot substitute findings of fact, therefore,there is no option for this Court but to allow the revision, set aside the judgment and decree of the Trial Court and remit the case to the Trial Court concerned for fresh decision in the light of the observations made above. 12. The revision is accordingly, allowed and the judgment and decree of the Trial Court, dated 18-7- 2002, in S. C. C. Suit No. 3 of 1999 are set aside. The case is remitted back to the Court concerned for fresh decision at an early date in the light of observations made in the body of the judgment. Petition allowed. .