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Uttarakhand High Court · body

2008 DIGILAW 26 (UTT)

MEGH SHYAM SINGH RAWAT v. CHETAN GANDHI

2008-01-11

RAJESH TANDON

body2008
JUDGMENT Heard Shri M.C. Pandey, counsel for the appellant and Shri J.C. Belwal, counsel for the respondents. 2. By the present civil revision filed under Section 25 of the Provincial Small Causes Court Act, the revisionist has prayed for setting aside the order dated 25.7.2007 passed in Misc. Case No. 75 of 2006. 3. Briefly stated a suit was filed by the plaintiffs praying for a decree for eviction as well as for recovery of rent and damages apart from the arrears of rent and damages. According to the plaintiffs, they are the owners of the shop measuring 15x75 feet situated at Kaladhungi 7 road, Haldwani, Nainital and the rent of the premises was Rs. 6,600/- per month. The defendant has not paid any rent since 27.12.2005 as well as water tax to the extent of 12.5 percent i.e. Rs. 29,400/- despite repeated demands. The plaintiffs have sent a notice on 8.5.2006 under Section 106 of the Transfer of Property Act demanding the arrears of rent and water tax from the defendant and by the said notice the tenancy of the defendant was also terminated. The aforesaid notice returned back on 17.5.2006 with an endorsement that the addressee is not available on the given address. Further, it has been stated that since the notice was sent on the correct address, therefore, it shall be deemed that the same have been served upon the defendant on 17.5.2006. The defendant has neither paid any rent nor vacated the premises and he has become unauthorized occupant since 18.6.2006. It has been stated that the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in dispute. The plaintiffs have, therefore, claimed a sum of Rs. 42,225/- towards the arrears of rent and taxes from 27.12.2005 to 18.6.2006 and damages @ Rs. 400/- per day from the filing of the suit for unauthorized use and occupation of the premises in question 7. 4. The Judge, Small Causes Court has passed an ex parte decree vide order dated 12.9.2006 directing the eviction of the defendant from the premises in dispute as well as for arrears of rent and water tax to the extent of Rs. 42,225/-, electricity charges to the extent of Rs. 18,000/- and Rs. 50/- per day towards the damages. 5. 4. The Judge, Small Causes Court has passed an ex parte decree vide order dated 12.9.2006 directing the eviction of the defendant from the premises in dispute as well as for arrears of rent and water tax to the extent of Rs. 42,225/-, electricity charges to the extent of Rs. 18,000/- and Rs. 50/- per day towards the damages. 5. The defendant has filed an application under Order IX Rule 13 C.P.C. stating therein that he has never been served with the summons and for the first time he came to know on 19.12.2006 about the suit. The application was filed on 19.12.2006 and was registered being miscellaneous case no. 75 of 2006. The Judge, concerned has referred the provisions of Section 17 of the Provincial Small Causes Court Act. The same is quoted below : “17. Application of the Code of Civil Procedure. – (1) The procedure prescribed in the Code of Civil Procedure (5 of 1908) shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits : Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.” 6. In Kedar Nath Vs. Mohan Lal Kesarwani & Ors. 2002 (1) ARC 186, it has been observed as under : “7. The object behind establishing Small Causes Court conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by alongwith summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. The object behind establishing Small Causes Court conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by alongwith summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. Excepting an order for compensatory costs in respect of false or pensatory costs in respect of false or vexatious claims or defences or an order imposing fine or directing the arrest or detention in the civil prison of any person (except where such arrest or detention is in execution of a decree), orders and decrees of Courts of Small Causes are not appealable they are only revisable by the High Court (or by District Court under Section 115 of CPC as amended in its application to State of U.P.). The jurisdiction to entertain and hear an application to set aside a decree passed ex parte or for a review of judgment by Court of Small Cause is sought to be qualified and arrow down by imposing condition 7 as to deposit or giving security for performance or compliance by enacting proviso to sub-section (1). Such a provision fits in the scheme of the PSCC Act. Although there is no authoritative pronouncement by this Court (none brought to our notice) interpreting the nature and scope of the proviso however, the learned Counsel for the appellant brought to our notice a number of decisions delivered by the High Courts of Allahabad, Oudh, Madras, Orissa, Rajasthan and Lahore which have taken the view that the proviso is mandatory and non-compliance because such non-compliance cannot be condoned or overlooked by the Court.” 7. In Puran Prasad v. Judge, Small Cause Courts/Civil Judge (Sr. Div.), Dehradun and others reported in 2006 (1) U.D. 598, it has been observed as under : “4. In view of the principle of law laid down in Kedar Nath Vs. Mahesh Lal Keserbani; 2002 (1) Allahabad Rent Cases 186, in which Hon’ble Supreme Court has held that the compliance as required under Proviso to Section 17 of the aforesaid Act is mandatory. Learned counsel for the petitioner drew my attention to the principle of law contained in Vishwa Nath Singh Vs. Gopal Singhal; 1986 (1) Allahabad Rent Cases 102 and Surendra Nath ;Mittal Vs. Learned counsel for the petitioner drew my attention to the principle of law contained in Vishwa Nath Singh Vs. Gopal Singhal; 1986 (1) Allahabad Rent Cases 102 and Surendra Nath ;Mittal Vs. Dayanand; 1985 (2) Allahabad Rent Cases 517 and argued that the Court can condone the delay in making the compliance of Proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. On examination of Vishwa Nath Case (Supra), it was found that the deposit was made in said case but the same was short and the court permitted the party to make good the shortage in deposit required under aforesaid Section 17. In Surendra Nath Mittal’s case (Supra) also deposits were made but the same were found to be short and the defendant was permitted to make good the deficiency. But, in the present case, the application under Rule 9 Order XIII of the Code of Civil Procedure, 1908 was moved on 26.07.1999 and neither any deposit is made that day, nor any application for permitting to furnish security was sought. Not only this, even after the objections were filed on 04.12.2000 by the plaintiff, in which he raised the objection that compliance of Section 17 was not made by the defendant, the defendant still slept over the matter and moved application only on 9.1.2002 for condoning of delay to deposit the amount required under Proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. It is stated in said application that it occurred to the defendant on 04.01.2002 that compliance of aforesaid proviso is to be made. The same cannot be said to be a valid explanation/reason for non-compliance of the above provision.” 8. The District Judge has observed that neither the decreetal amount has been deposited nor any security has been furnished and a cheque of Rs. 66,000/- was given on 14.5.2007 when in point of fact the application has been filed on 19.12.2006 and, as such, the provisions of Section 17 have not been complied with. Therefore, the application under Order IX Rule 13 C.P.C. was rejected on 25.7.2007. 9. So far as service of notice is concerned, in M/s Madan and Co. 66,000/- was given on 14.5.2007 when in point of fact the application has been filed on 19.12.2006 and, as such, the provisions of Section 17 have not been complied with. Therefore, the application under Order IX Rule 13 C.P.C. was rejected on 25.7.2007. 9. So far as service of notice is concerned, in M/s Madan and Co. v. Wazir Jaivir Chand, AIR 1989 SC 630 the Apex Court has held that where the notice has been sent through registered post and at correct address and it has returned back to the sender by the postman, the notice shall be deemed to be served upon the defendant. The same is quoted below : “All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorized by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorized to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquires regarding the whereabouts of addressee, he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorized to affix the letter on the premises because of the addressee’s absence.” 10. A perusal of the judgment of Apex Court in Kedar Nath Vs. A perusal of the judgment of Apex Court in Kedar Nath Vs. Mohan Lal Kesarwani reported in (2002) 2 SCC 16, as well as judgment of this High Court in Puran Prasad v. Judge, Small Causes Court, Dehradun reported in 2006 (1) U.D. 598, the position is clear that Section 17 being mandatory, the application under Order IX Rule 13 C.P.C. cannot be allowed unless the deposit has been made before the Judge, Small Causes Court alongwith the application under Order IX Rule 13 C.P.C. 11. In Harshvardhan Chokkani Vs. Bhupendra N. Pael 2002 SCFBRC 3474, the Apex Court has observed as under : “Nonetheless, the High Court is exercising the revisional power 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 legality and 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 biding 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.” 12. In Miss Kanta Udharam Jagasia v. Shir C.K.S. Rao, 1998 SCFBRC 45, the Apex Court has observed as under : “The High Court, foregetting that it had a limited revisional jurisdiction, analyzed the evidence and substituted its findings in place of the findings of the Competent Authority. On a perusal of the evidence, we find that the findings arrived at by the Competent Authority on the basis of oral evidence cannot be said to be perverse or even unreasonable requiring the High Court to reverse the same. It is well settled that though another view is possible on reappreciation of the evidence, the revisional Court may not interfere with the findings of the Lower Courts on that ground.” 13. It is well settled that though another view is possible on reappreciation of the evidence, the revisional Court may not interfere with the findings of the Lower Courts on that ground.” 13. In Patel Valmik Himatlal v. Patel Mohanlal Muljibhai 1998 SCFBRC 351, the Apex Court has observed as under : “5. The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Ors. (1987) 3 SCC 538, and after referring to a catena of authorities. Sabyasachi Mukharji, J. drew a distinction between the appellate and the revisional jurisdictions of the Courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the particular case is decided according to law. The High Court cannot substitute its own finding on the Courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction? 6. The powers under Section 29(2) are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision but it does not vest the High Court with the power to re-hear the matter and re-appreciate the evidence. The mere fact that a different view is possible on re-appreciation of evidence cannot be a ground for exercise of the revisional jurisdiction.” 14. In view of the above, I do not find any ground for interference in exercising on revisional power under Section 25 of the Provincial Small Causes Court. The revision, therefore, lacks merit and is liable to be dismissed. 15. Consequently, revision is dismissed. No order as to costs.