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2006 DIGILAW 3019 (ALL)

Susheel Iron Store v. Addl. District Judge

2006-12-18

RAKESH TIWARI

body2006
JUDGMENT : Rakesh Tiwari, J. Heard learned Counsel for the parties and perused the record. 2. The Petitioner has prayed for issuance of a writ of certiorari quashing the impugned judgments and orders dated 3.12.2001 and 26.4.2002 passed by the Judge Small Cause Court and XVII Additional District Judge, Allahabad respectively. 3. By the order dated 3.12.2001 the Judge Small Cause Court has decreed the Plaintiff-Respondents' suit for eviction, possession and compensation. By order dated 26.4.2002 the XVIIth Additional District Judge, Allahabad has dismissed the revision filed by the Petitioner-tenant against the judgment and decree dated 3.12.2001 passed by the Judge Small Cause Court. 4. Briefly stated the facts of the case are that Petitioner is the tenant of Respondent Nos. 3 and 4 in Shop No. 8 situate in premises No. 388, Chak Raghunath, Mirzapur Road, Naini, Allahabad. 5. It is alleged that on 10.4.1981 Smt. Devkali Devi created tenancy of the shop in dispute on behalf of the Respondent-landlords who were minor at the relevant time for sale/purchase of iron guarders by leasing out the disputed shop @ Rs. 160 per month till 31.3.1982 and thereafter the tenant would be liable to pay rent @ Rs. 175 per month till 31.3.1990 and further from 1.4.1990 the rate of rent would be Rs. 200 per month. It was further agreed that the Petitioner-tenant would also pay water charges provided he used water. The shop was leased out for stocking/sale of iron guarders. 6. From the record it appears that the dispute came into existence when the rent for the months of July, August, September and October, 1995 amounting to Rs. 800 (at the rate of Rs. 200 per month) offered by the Petitioner to the landlords was refused by them even when the same was sent through money order to them. 7. Subsequently a notice dated 10.10.1995 u/s 106 of the Transfer of Property Act read with Section 20(2) of U. P. Act No. XIII of 1972 terminating the tenancy of the Petitioner was served upon him by the landlords demanding arrears of rent w.e.f. 1.7.1995 alleging that the Petitioner was not only a defaulter in payment of rent but had also damaged the walls of the shop by throwing heavy iron guarders against them. It was also alleged that the Petitioner had taken water connection in the shop from which water was flowing uninterruptedly on account of which it was soaked in the walls and the foundation of the shop was causing damage to the property. 8. The Respondent-landlords thereafter filed S.C.C. Suit No. 152/95, Sri Sudhir Kumar and Anr. v. Sushil Iron Store S.C.C. Suit No. 152/95, for eviction u/s 20(2) (a) and (b) of U. P. Act No. XIII of 1972 against the Petitioner before the Judge, Small Cause Court, Allahabad. 9. In pursuance of summons the Petitioner appeared before the Judge Small Cause Court, Allahabad on 10.4.1996 through his counsel and alleges to have deposited a sum of Rs. 3100 towards full payment of amount of arrears of rent and damages for use and occupation of the shop together with interest thereon @ 9% p.a. and costs of the suit etc. as required u/s 20(4) of the Act. After making the aforesaid deposit the Petitioner filed written statement denying the plaint allegations. 10. It is claimed by the Petitioner that thereafter he had been regularly depositing the rent under Order XV, Rule 5, Code of CPC during the pendency of the suit without any default; and therefore is entitled to get the benefit u/s 20(4) of the Act. As regard water connection, the Petitioner claimed that he had taken water connection with the consent of the Respondent-landlords and had not caused any damage to the shop as alleged by the landlords. It was asserted by him that this allegation has been made only with a view to create a ground for his eviction. 11. Evidence was adduced by the parties before the trial court. The Judge Small Cause Court vide impugned order dated 3.12.2001 decreed S.C.C. Suit No. 152/1995 filed by the Plaintiff-Respondent holding that the tenant in breach of the terms of agreement dated 10.4.1981 had taken water connection without written permission of the landlords and had also not given clear evidence regarding payment of rent by him, as such the suit is liable to be decreed. Accordingly the Petitioner was directed to vacate the shop in dispute and handover its vacant possession to the landlords within one month, otherwise the landlords would be entitled to get the possession through Court. 12. Accordingly the Petitioner was directed to vacate the shop in dispute and handover its vacant possession to the landlords within one month, otherwise the landlords would be entitled to get the possession through Court. 12. Aggrieved by the order dated 3.12.2001 the Petitioner filed S.S.C. Revision No. 2/2002 before the District Judge, Allahabad challenging the validity and correctness of the judgment and decree passed by the Judge Small Cause Court, Allahabad on the ground that he was entitled to get benefit of Section 20(4) of the Act stating that entire deposit of arrears of rent and interest as contemplated thereunder had been made by him, as such the order dated 3.12.2001 was erroneous and liable to be set aside. 13. With regard to the findings recorded by the revisional court that the provisions of Section 20(4) of the Act are not applicable to the disputed shop the learned Counsel contends that in the aforesaid Section 20(4) the Legislature has used the word "Building" which means residential or non-residential roofed structure and as such the provisions of Section 20(4) of the Act are applicable to the non-residential building vide Section 3(i) of the Act. 14. The contention of the learned Counsel for the Petitioner is that in view of the above the impugned judgments and orders passed by the courts below are illegal and arbitrary. 15. In support of this contention he relied upon the Hon'ble Supreme Court decision rendered in Mam Chand Pal Vs. Shanti Agarwal, (2002) 3 SCC 49 . 16. The learned Counsel for the Petitioner next contended that both the courts below committed a patent illegality in relying upon the unregistered lease deed dated 10.4.1981 executed by Smt. Devkali Devi for it could not be looked into evidence on account of non-registration in view of the provisions of Section 107 of the Transfer of Property Act read with Section 17(1)(d) of the Registration Act, 1908 except under proviso to Section 49 of the Registration Act which provides that the unregistered lease deed may be taken into consideration for collateral purpose only. 17. In support of this contention the learned Counsel for the Petitioner relied upon a decision of this Court in Zarif Ahmad and Anr. v. Satish Kumar and Anr. 1983 ARC 422, wherein it has been held: The effect of non-registration of a lease deed is dealt with in Section 49 of the Registration Act. 17. In support of this contention the learned Counsel for the Petitioner relied upon a decision of this Court in Zarif Ahmad and Anr. v. Satish Kumar and Anr. 1983 ARC 422, wherein it has been held: The effect of non-registration of a lease deed is dealt with in Section 49 of the Registration Act. It lays down that any document which is required to be registered shall not be looked into for the purposes of creating the rights purported to be done under it. However, the proviso to this Section permits an unregistered document to be looked into for a limited purpose. This proviso makes it clear that an unregistered document can be looked into for collateral purpose, which is not required to be evidenced or affected by registered document, As to what is a collateral purpose, has not been defined in either the Registration Act or in the Transfer of Property Act.... Section 49 of the Registration Act, therefore, puts a complete bar to the admission of a document evidencing the terms of contact for which registration is compulsorily required by Section 17(1)(d) of the Registration Act or Section 107 of the Transfer of Property Act. As to the duration for which a lease is given or about the rate of rent, a document unregistered cannot be taken into evidence inasmuch as relying upon an unregistered document for these purposes would result in nullifying the prohibition or the bar imposed by Section 49. Section 49 prohibits the reception into evidence of any document affecting any immovable property. Under the proviso to the said Section 49, only so long as an unregistered document does not purport or operate to do anything said in an unregistered document does not purport or operate to do anything said in Section 107, the same may be considered by a Court. But, the terms and conditions on which an immovable property is leased out and which is an integral part of the same, the law does not permit such a document to be admitted for those purposes. Therefore, an unregistered document cannot be admitted for proving either the duration or the rate of rent which is one of the terms of the contract. 18. Therefore, an unregistered document cannot be admitted for proving either the duration or the rate of rent which is one of the terms of the contract. 18. With regard to the finding recorded by the courts below on damage to the shop in dispute by taking water connection and by damaging the walls by the Petitioner, it is contended by the learned Counsel for the Petitioner that the finding is wholly perverse as the Respondent-landlords could not produce any clinching evidence to substantiate that the Petitioner has caused damage to the shop in dispute. 19. In the counter-affidavit filed by the Respondent-landlords it is denied that the Petitioner had ever offered Rs. 800 as rent of July, 1995 to October, 1995 at the rate of Rs. 200 per month or that they had refused the same when sent by money order. It is also averred in the counter-affidavit that the shop in dispute cannot be treated to be a residential accommodation as it was given on rent for commercial purposes, hence the Petitioner was not entitled to the benefit of Section 20(4) of the Act. 20. In Mam Chand Pal (supra) it is held that Section 20(4) of the Act is also applicable to the non-residential building; that the object of enacting Section 20(4) of the Act was to do substantial justice between the parties whereby the Legislature intended to provide an opportunity to a tenant for payment of rent in default; that Legislature intended to provide an opportunity to a tenant for payment of rent and the section covers those cases alone where the ground for eviction is default in payment of rent exists. It was held that by affording the opportunity, the Legislature in its wisdom balanced the equities between the parties as the landlord got the amounts of arrears of rent and damages along with legal expenses and interest on the defaulted amount and the tenant is saved of hardship of being thrown out of the premises. It was further held in the judgment that while considering the import of such provisions, it is to be seen that the requirement of law substantially and virtually stands satisfied and a highly technical view of the matter may have no place in construing compliance of such a provision. 21. It was further held in the judgment that while considering the import of such provisions, it is to be seen that the requirement of law substantially and virtually stands satisfied and a highly technical view of the matter may have no place in construing compliance of such a provision. 21. Both the courts below have recorded concurrent findings of fact that the Petitioner had defaulted in payment of rent of four months and that he is not entitled to the benefit of Section 20(4) of the Act. With regard to damage caused to the shop in dispute the revisional court has recorded a finding that at the time of giving the shop in dispute on rent the roof and walls of the shop in dispute were in good condition but now there is dampness in the walls and seepage from the roof of the shop in dispute on account of recklessness of the Petitioner. 22. The decision in Mam Chand Pal (supra) relied upon by the learned Counsel for the Petitioner as discussed above is distinguishable, as the same does not apply to the facts and circumstances of the case. 23. The other decision in Zarif Ahmad (supra) relied upon by the learned Counsel for the Petitioner also does not support him as in the instant case admittedly the tenancy was terminated for alleged non-payment of rent and for causing damage to the building. The only recluse taken by the Petitioner in his arguments is that there was no clinching evidence before the courts below to come to the conclusion that damage was caused by water seeping in the walls and damage by iron guarders stocked recklessly by the Petitioner. 24. It is not the case of the Petitioner that there was no evidence at all before the courts below to reasonably come to the conclusion that damage was caused to the accommodation in dispute by the reckless actions of the Petitioner. The instant case is therefore not a case of no evidence, rather the courts below have given cogent reasons for arriving at the findings of facts to the contrary that damage to the accommodation in dispute was caused by irresponsible and reckless attitude of the Petitioner and that he was also in arrears of rent. 25. The instant case is therefore not a case of no evidence, rather the courts below have given cogent reasons for arriving at the findings of facts to the contrary that damage to the accommodation in dispute was caused by irresponsible and reckless attitude of the Petitioner and that he was also in arrears of rent. 25. The Petitioner has failed to show any illegality or infirmity in the impugned orders for exercise of extraordinary powers by this Court under Article 226 of the Constitution. 26. For the reasons stated above, the writ petition is liable to be dismissed being devoid of merits. 27. The writ petition is accordingly dismissed. No order as to costs.