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2007 DIGILAW 2695 (ALL)

LAXMI KANT v. RAM NATH SHARMA

2007-11-02

SUNIL AMBWANI

body2007
JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri G.S. Srivastava for the petitioner-tenant and Shri R.N. Sharma for the respondent-landlord. 2. By means of this writ petition the petitioner has prayed for setting aside the orders passed by the Addl. District Judge (Court No. 6), Agra in Small Cause Revision No. 37 of 2007, Shri Laxmikant v. Shri Ramnath Sharma, dated 20.9.2007 whereby he has dismissed the small cause revision against the judgment of the Small Cause Court, Agra dated 26.4.2007 in Small Cause Suit No. 184 of 1991, Shri Ram Nath Sharma v. Shri Laxmi Kant decreeing the suit for ejectment of the petitioner-tenant and for payment of three years rent at the rate of Rs. 150/- per month upto the date, when the possession is delivered to the respondent-landlord. 3. The small cause suit was filed by the respondent-landlord for eviction and arrears of rent at the rate of Rs. 150/- per month from Shop No. 23/190, Jeevani Mandi (a busy market), Agra, with the allegation that the petitioner was tenant at the rate of Rs.150/- per month with an agreement that on every house tax assessment by Nagar Nigam, Agra, the rent will be increased by 40% and accordingly the rent has increased to Rs. 310/- per month w.e.f. 1.4.1987. The tenant did not pay the rent since 1.11.1983 and has denied increase of rate of rent over and above Rs. 25/- per month, paid upto 31.10.1990. The tenancy was terminated by a notice under Section 106 of the Transfer of Property Act served upon the tenant and to which an incorrect reply was given disputing the rate of rent. The trial Court took evidence and recorded the findings that rate of rent was Rs. 150/- per month, which was increased to Rs.210/- w.e.f. 1.4.1987. The rent is due from 1.11.1983, which has not been paid even after demand and that the tenant is not entitled to the benefit of Section 20 (4) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (in short the Act) as he has deposited the rent at the rate of Rs. 25/- per month. 4. In SCC Revision No. 248 of 1997 filed by the tenant, the Revisional Court by his judgment dated 16.4.2001 found that the counter foils and the receipts by which the rent was alleged to be increased were not believable. 25/- per month. 4. In SCC Revision No. 248 of 1997 filed by the tenant, the Revisional Court by his judgment dated 16.4.2001 found that the counter foils and the receipts by which the rent was alleged to be increased were not believable. The landlord alleged that the tenant had agreed for increase of rent, and corresponding increase after every increase in house tax assessment by signing on a note on the counter foils produced as paper Nos. 1, 2 and 3. It was found that these counterfoils were not reliable and no presumption could be raised on these documents. The Revisional Court remanded the matter to the Trial Court to determine the question of rent and payment of rent on the basis of ‘any other’ evidence and whether the tenant is entitled to the benefit of Section 20 (4) of the Act. This judgment dated 16.4.2001 by which the matter was remanded was challenged in the writ petition in the High Court, which was dismissed in limine. 5. The Judge, Small Cause Court reconsidered the evidence. Parties filed their respective reports of the hand writing experts. The handwriting expert of the landlord opined in his report that difference in signatures on the counterfoils of receipts and specimen signatures is natural and that the signatures on the receipt and the admitted signatures of the tenant appear to have been made by the same person. The handwriting expert of the tenant on the other hand gave his opinion that the signatures on the counterfoils and the receipts do not match with the admitted signatures of the tenant. The trial Court then held that counterfoils of the receipts have not been signed in English. At the time of giving specimen signatures the tenant stated that he does not know English language. The trial Court, however, did not disbelieve the signatures of the tenant on the counterfoils and found that on the main part of the receipt tenant had agreed and signed for the increase of rent of Rs. 150/- per month and increase of 40% on every assessment. The trial Court then proceeded to hold that since the tenant deposited the rent only at the rate of Rs. 25/- per month, he is not entitled to benefit of Section 20 (4) of the Act. The suit was consequently decreed. The Addl. 150/- per month and increase of 40% on every assessment. The trial Court then proceeded to hold that since the tenant deposited the rent only at the rate of Rs. 25/- per month, he is not entitled to benefit of Section 20 (4) of the Act. The suit was consequently decreed. The Addl. District Judge (Court No. 6) Agra has dismissed the Small Cause Revision No. 37 of 2007 on 20.9.2007 confirming the findings recorded by the trial Court. 6. Shri G.S. Srivastava, learned Counsel for the petitioner-tenant submits that the premises in dispute is a small shop in Jeevani Mandi Agra. Initially the shop was taken on rent at Rs.10 per month, which was increased to Rs. 25 per month. The tenant never agreed for increase of rent and has been regularly paying the agreed rent at Rs. 25 per month. The revisional Court in the earlier judgment of remand dated 16.4.2001, affirmed by the High Court had clearly foreclosed the consideration of counterfoils of the receipts in evidence and had directed the Judge, Small Cause Court to consider the rent on, ‘any other’ available evidence. The trial Court committed gross error of law in refusing to follow the directions and has taken expert evidence to believe the same evidence, which was not accepted by the revisional Court. Shri G.S. Srivastava submits that findings of the revisional Court with regard to disbelieving the counterfoils of the receipts had become final and that same counterfoils could not be examined or proved for the purposes of determining the rate of rent. 7. Shri R.N. Sharma on the other hand submits that in absence of any supporting evidence and proof of the counterfoils earlier the revisional Court had not placed reliance on these receipts. The judgment in revision dated 16.4.2001 did not issue any such direction to the Trial Court to refuse to consider any other evidence in proof of the rate of rent, which could only be proved by the proof of the counterfoils of the rent receipts. 8. I have gone through the record and find that earlier the revisional Court in its judgment dated 16.4.2001 did not believe the counterfoils of the rent receipts as they were not proved on record. It was found that according to the plaintiff the agreement to increase the rent was entered on 21.12.1985. 8. I have gone through the record and find that earlier the revisional Court in its judgment dated 16.4.2001 did not believe the counterfoils of the rent receipts as they were not proved on record. It was found that according to the plaintiff the agreement to increase the rent was entered on 21.12.1985. On that day note on the counterfoils was not written and signed by the tenant. The rent receipts (paper No. 48 Ga) are of the year 1983 and thus the finding that note could not be believed was not incorrect. In these circumstances, the revisional Court directed the trial Court to reconsider the question of rate and payment of rent by any other evidence. 9. The parties led expert evidence to prove the signatures of the tenant on the rent receipts. The Courts below have not only considered the expert reports but have also found that denial of the tenant of putting his signatures on the receipts was not believable. The tenant had put signatures both on front and back of the receipt under the note. He had signed in English on the front and in Hindi on the back of these counterfoils. The revisional Court in judgment dated 20.9.2007 found that though the tenant denied the knowledge of English, he did not give his educational background. It was quite possible that he had signed in English on the front of the receipt and thereafter plaintiff-landlord had become greedy and had got his short signatures in Hindi on back of the receipt. The signatures on the back of the receipt were not found to be tallying with the specimen signatures. The tenant did not deny the signatures in English made by him in English on the receipt of the notice dated 22.11.1990 sent by the plaintiff-landlord through his Counsel Shri Krishna Gupta. These signatures were found to be identical to the signatures on the counterfoils of the receipts. In the impugned order the revisional Court found that signatures of the tenant on the main portion of the receipt increasing rent to Rs. 150/- were proved but the note on the back of the counterfoils is short signatures in Hindi was not proved. The increase of 40% of rent with increase of every house tax assessment was as such not proved. 10. 150/- were proved but the note on the back of the counterfoils is short signatures in Hindi was not proved. The increase of 40% of rent with increase of every house tax assessment was as such not proved. 10. The submission that in the remand order the revisional Court had disbelieved the counterfoils of the receipts and had issued directions to the trial Court to consider any other evidence in proof of rate of rent, could not have restricted the trial Court to consider the main part of counterfoils of the receipt (the front portion) on which rent was increased to Rs.150/- per month. The revisional Court had raised a doubt over the note written on the back of the counterfoils and not the front portion of the counterfoils of the receipt in which the rent was agreed to be enhanced to Rs. 150 per month. 11. The other reason to uphold the judgment of the revisional Court is that both the Trial Court as well as the Revisional Court found that the bunch of 40 counterfoils of the concerned period were in seriatum and were tied together. The landlord was receiving rent from many tenants and was maintaining the counterfoils to prove the payment of rent. The entire bunch of counterfoils appeared to be in order and from three receipts in this bunch relating to the disputed shop it was found that rent was increased to Rs. 150/- per month. 12. The High Court in exercise of jurisdiction under Art. 226 of the Constitution would not interfere with the findings of fact, unless there is any misreading or perversity. The fact that counterfoils of the receipts were not believed by the revisional Court in its earlier judgment dated 16.4.2001 would not make these receipts inadmissible in evidence. After remand the trial Court and thereafter revisional Court considered whether these receipts were proved by any other evidence. There is no such error in the appreciation of the evidence by which counterfoils of the rent receipts so far as the rent was increased to Rs. 150/-, which requires any interference from this Court. 13. The writ petition is dismissed. ————