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2007 DIGILAW 314 (UTT)

Vijendra Kumar Gupta v. Gulshan Kumar

2007-06-04

RAJESH TANDON

body2007
Judgment – Heard Sri Sharad Sharma, counsel for the revisionist and Sri Dinesh Gahtori & R.P. Singh, counsel for the respondent. 2. By the present civil revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887 the revisionist has prayed for setting aside the judgment and decree dated 62-2004 passed by Judge Small Cause Court/Addl. District Judge/3rd F.T.C. Haridwar, whereby the suit of the plaintiff has been decreed. 3. Briefly stated, a suit was filed by the plaintiff-respondent being S.C.C. Suit No.20 of 1999 Gulshan Kumar Vs. Bijendra Kumar Gupta praying for the eviction of defendant from the premises known as Shop No. 22 situate at Gandhi Market, BHEL, Kathara Bazar, Jwalapur, Tehsil and District Haridwar. 4. According to the case of the plaintiff, he is the owner of the shop, of which the defendant is a tenant at the rate of Rs. 140/- per month. The defendant has not paid the rent from 15t October, 1995 to 30th July 1999 amounting to Rs. 6440/- despite notice issued and served by the plaintiff on 11-8-1999, but the defendant has neither paid the rent nor vacated the premises as usual. The defendant has paid the rent from 151 April, 1995 to 30th September, 1995, which was received by the plaintiff, but thereafter, from 15t October, 1995 to 30lh July, 1999, no rent was paid despite demand notice. The amount which is due against the defendant along with taxes is Rs. 6626/- and for damages use and occupation from 13-9-1999 to 30-91999 amounting to Rs. 84/- per day and since more than four months' rent has become due, therefore, the defendant is liable to be evicted. 5. A perusal of the notice dated 11-8-1999, shows that it was specifically mentioned that the defendant continues to be the tenant and from 15t October, 1995, he has not paid the rent. The said notice was replied by the defendant stating therein that the rent has already been sent to the plaintiff. The defendant has neither denied the ownership of the plaintiff nor claimed the title in himself. 6. A written statement was filed by the defendant. The said notice was replied by the defendant stating therein that the rent has already been sent to the plaintiff. The defendant has neither denied the ownership of the plaintiff nor claimed the title in himself. 6. A written statement was filed by the defendant. The defendant has admitted that he has sent the rent to the plaintiff before 151 October, 1995, which was duly accepted by the plaintiff and later on the rent from 1-10-1995 to 12-9-1999 has already been paid to the plaintiff, which has been disbelieved by the Judge Small Cause Court, therefore, it does not lie in the mouth of the defendant to deny the title of the plaintiff. The suit was filed on 6th October, 1999 and 3m July, 2000 was fixed for filing the written statement. On 25th July, 2000 after application of mind the Presiding Officer has disposed of the application 16-Ga filed by the defendant and the application under Section 20(4) for depositing the amount although was allowed, but the amount was not deposited. On 17th August, 2000, the issues were framed and the suit proceeded. Presiding Officer therefore, has applied his mind and the written statements was filed on 17-8-2000. 7. From the record, it is evident that although the application for depositing the amount was filed on 17th August, 2000, but the amount was deposited on 18th April, 2001 to the extent of Rs. 8,737/-. 8. The revisionist has filed the details of the break up of Rs. 8,737/-. As will appear from the break up that it does not include the amount from 15t October, 1995 to 30th July, 1999, which has been claimed by the plaintiff. Break up is quoted below :- 9. The aforesaid amount, therefore, is not admissible on the two reasons: 1) It has been deposited after the first date of hearing and as such in view of the judgment of Siraj Ahmad Siddiqui Vs Prem Nath Kapoor (1993) 4 see 406 to the following effect: "16. The date of first hearing in the instant case is not, therefore, February, 24, 1984 when the trial court passed orders on the application of the appellant for time to file a written statement and permission to deposit the full amount of the arrear. The contention of learned counsel for the respondents to this effect must be rejected. The date of first hearing in the instant case is not, therefore, February, 24, 1984 when the trial court passed orders on the application of the appellant for time to file a written statement and permission to deposit the full amount of the arrear. The contention of learned counsel for the respondents to this effect must be rejected. Now, February 24, 1984 was a date earlier then the date of hearing mentioned in the summons, namely, February 28, 1984. The trial court gave to the appellant time until March 24, 1984 to file his written statement and deferred the date of final hearing to April 12, 1984, expressly canceling the date February 28, 1984 given in the summons. In our view, whether or not the provisions of Section 20(4) of the said Act were complied with by the appellant must be judged by the date of hearing so fixed. The full amount of the arrears was deposited on March 5, 1984; there was, therefore, compliance by the appellant with the provisions of Section 20(4) of the said act prior to the earlier date fixed by the court for the defendant to take the first step in the suit. The amount has to be deposited by the defendant in order to relieve him from the immunity of eviction. 2) The rent as demanded from 151 April, 1995 to 30th July, 1999 has not been deposited by the defendant and in order to have the immunity from eviction, even the time barred rent has to be deposited as held in Khadi Gram Udyog Trust Vs. Ram Chandraji Sarsaiya Ghat Kanpur 1978 ARC 59, where it has been observed as under : ''The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the scheme of the act, it is clear that the statute has conferred a benefit of the tenant to avoid a decree for eviction by complying with the requirement of Section 20(4). If he fails to avail himself of the opportunity and has paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under Section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of Section 20(4). Still the tenant can avail himself of the protection by complying with the requirements of Section 20(4). As he has not deposited the entire amount due to protection is not more available. We agree with the view taken by the trial court and the High Court of Allahabad that the words 'entire amount of rent due' would include rent with has become time-barred. In the result the appeal is dismissed. There will be no order as to costs." 10. Counsel for the revisionist has submitted that since there was a dispute about the title and as such it was incumbent upon the Judge Small Cause Court to return the plaint to the civil Court. 11. It has been held in Shamim Akhtar Vs. Iqubal Ahmad and another AIR 2001 SC 1 that intricate question of title is involved, the suit is triable by the Judge Small Cause Court. The said observations are quoted below: "12. The trial Court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff-appellant under Section 23 of the Small Cause Courts Act. Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depends upon the proof or disproof of a title to immoveable property or other title which such a Court cannot finally determine, the Court may at any state of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title. The power vested under subsection (1) in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceedings before the Small Causes Court depends upon the proof or disproof of a title to the immovable property and the relief sought cannot be granted without determination of the question. In the present case, as noted earlier, the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted respondent No.1 as tenant of the premises. The question was whether that case was to be accepted or not. In the present case, as noted earlier, the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted respondent No.1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed the trial Court, at the first instance, had accepted the plaintiff's case holding, inter alia, that she had got the property by a registered deed of gift from Smt. Khairunnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who, undisputedly was the original owner of the property. The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedinqs as an incidental question and final determination of the title could be left for decision of the competent court. In such circumstances. it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Cause Court to determine finally the title to the property. The tenant-respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Cause Courts Act." 12. It is well established that the defendant cannot be allowed to deny the title of the landlord once the relationship of landlord and tenant is established and the defendant has paid the rent to the plaintiff prior to 151 March, 1995 and thereafter also according to him, he is sending the rent to the landlord which was not been proved by the defendant. 13. In Munnawar Vs. Addl. District Judge, Haridwar [2003 (2) ARC 608] after relying upon the judgment of Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 503, it has been held as under: "12. In the case of Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 503, the Apex Court has relied upon the provisions of Section 116 of Evidence Act and has held that no ten2nt of immovable property can be allowed to deny the title of the landlord. In the case of Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 503, the Apex Court has relied upon the provisions of Section 116 of Evidence Act and has held that no ten2nt of immovable property can be allowed to deny the title of the landlord. The observations are quoted below: "This is a settled view that having regard to the provisions of Section 116 of the Evidence Act no tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny the title of the owner of such property. In this connection, it would be relevant to make a reference to the decision of this Court in Veerraju v. Venkanna, 1966 (1) SCR 831 : AIR 1966 SC 629, wherein this Court, with reference to the decision of Privy Council took the view as under: "A tenant who has been let into possession cannot deny his landlord's title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord." 14. In Maroti Vs. Tulsiram and another 1995 SCFBRC 1, the Apex Court has observed as under: "6. The findings recorded by the High Court and the trial Court were that the appellant had entered into the possession as a tenant and he is estopped to deny the title of the trust by operation of Section 116 of the Indian Evidence Act." 15. In the present case, the defendant himself has admitted the plaintiff as landlord as rental amount has been paid to the plaintiff. There is no denial in the notice that the plaintiff is not the landlord and therefore, the suit was cognizable by the Small Cause Court. 16. On behalf of the plaintiff, P.w.1 was examined on oath, who has proved the service of notice about the rent which is due from 151 October, 1995. The plaintiff has also proved that he is the owner of the premises and his father is not the owner. He has also been issuing receipts to the defendant. 17. In the Nagar Palika record, the name of the plaintiff has been recorded. The defendant has also sent the rent by money order to the plaintiff and the plaintiff has received the same. 18. He has also been issuing receipts to the defendant. 17. In the Nagar Palika record, the name of the plaintiff has been recorded. The defendant has also sent the rent by money order to the plaintiff and the plaintiff has received the same. 18. Scope of interference under Section 25 of the Provincial Small Cause Court Act has been interpreted by the Apex Court from time to time. It is not an appellate jurisdiction and therefore, the findings of fact cannot be interfered. 19. I have considered the revision in a wider range and after considering the entire evidence on the record the ultimate conclusion is that the findings recorded by the Judge Small Cause Courts require no interference under Section 25 of the Provincial Small Cause Courts Act, 1887. 20. In Harshvardhan Chokkani Vs. Bhupendra N. Patel 2002 SCFBRC 344, the Apex Court has observed as under: "Nonetheless, the High Court is exercising the revisional power which in its very nature is a truncated power. The width of the powers of the Revisional Court cannot be equated with the power of the Appellate Court. In examining the legally and the proprietary of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved in such that no reasonable person could arrive at or the like, it is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of the aforementioned reasons exists in this case to justify interference by the High Court." 21. In view of the above, I find no merit in the present revision so as to interfere under Section 25 of the Provincial Small Cause Courts Act, 1887 and the revision deserves to be dismissed. 22. However, in the interest of justice, revisionist is granted time to vacate the premises in dispute on or before 3151 January, 2008 provided: (a) he furnishes undertaking on or before 151h July, 2007. 22. However, in the interest of justice, revisionist is granted time to vacate the premises in dispute on or before 3151 January, 2008 provided: (a) he furnishes undertaking on or before 151h July, 2007. (b) he pays entire arrears of rent/damages/mesne profits on or before 15th July, 2007. (c) he pays on damages in the 151 week of every month until and unless premises in dispute is vacated. On failure of the aforesaid conditions, plaintiff-respondent shall have the liberty to execute the decree against the defendant-revisionist. 23. Consequently, civil revision is dismissed with costs.