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Uttarakhand High Court · body

2009 DIGILAW 293 (UTT)

KAMLA DEVI v. PRAKASH CHAND AGARWAL

2009-06-01

B.S.VERMA

body2009
JUDGMENT Heard learned counsel for the parties at length and perused the record. 2. This writ petition has been filed for issue a writ of certiorari quashing the judgment and decree dated 9.9.2008 passed by the Judge, Small Cause Court (JSCC)/Civil Judge (Senior Division) Pauri Garhwal passed in S.C.C. Suit No. 22 of 2004 Prakash Chandra Agarwal and others Vs. Smt. Kamla Devi and others and the judgment and order dated 30.4.2009 passed by the revisional court in S.C.C. Revision No. 6 of 2008, which was preferred by the defendant-petitioners. 3. Brief facts, giving rise to the present writ petition, are that the plaintiff-respondents filed S.C.C. Suit No. 22 of 2004 against the defendant-petitioners on the ground of default in payment of rent. Initially, the suit was filed by the respondents only against the petitioner nos. 1 to 3. During the trial, petitioner nos. 4 and 5 were impleaded as defendants in the suit before the Judge, S.C.C. The plaintiff-respondents served a notice on petitioner nos. 1 to 3 to determine the tenancy under Section 106 of the Transfer of Property Act and, after the expiry of statutory period of thirty days, the suit for eviction was filed against them before the J.S.C.C. Pauri Garhwal. The suit was contested by the petitioners by filing their written statement and both the parties have adduced oral and documentary evidence in the suit. The learned J.S.C.C. framed the following points for determination in the suit:- 1. Whether the plaintiffs are owners of the property in suit? 2. Whether the notice dated 13-9-2004 sent by the plaintiffs is illegal? If so, its effect? 3. Whether the rate of rent is Rs. 250/- per month or Rs. 50/- per month? 4. Whether the defendants defaulted in payment of monthly rent? Is so, its effect? 5. Whether the defendants are entitled to the benefit of Section 20(4) of the U.P. Act No. 13 of 1972? 6. To what relief are the plaintiffs entitled? 4. On behalf of the plaintiff-respondents, P.W.1 Sandeep Kumar has been examined in oral evidence and on behalf of the petitioner-defendants Vinay Kumar has been examined as D.W.1 in the suit. In documentary evidence, the respondents filed papers per list 8-C, which included copy of notice, receipt of registry, acknowledgement care, receipt of U.P.C., reply of notice. 4. On behalf of the plaintiff-respondents, P.W.1 Sandeep Kumar has been examined in oral evidence and on behalf of the petitioner-defendants Vinay Kumar has been examined as D.W.1 in the suit. In documentary evidence, the respondents filed papers per list 8-C, which included copy of notice, receipt of registry, acknowledgement care, receipt of U.P.C., reply of notice. They also filed 11 documents per list 35-C. On the other hand, the petitioner-defendants filed copy of judgment in Suit No. 1 of 1984 per list 21-C and 35 papers per list 48-C. 5. After hearing both the parties and after perusing the evidence on record, the learned J.S.C.C. came to the conclusion that the rate of rent was Rs. 50/- instead of Rs. 250/- per month, but the finding regarding default in payment of rent was recorded against the petitioner. 6. So far as the point no. 5 regarding benefit of Section 20(4) of the U.P. Act No. 13 of 1972 is concerned, it was also decided against the petitioners on the ground that they had constructed their own house within the vicinity of Municipal area and this fact is not disputed between the parties. Ultimately, the S.C.C. Suit No. 22 of 2004 was decreed for eviction of the defendants and also for recovery of damages for use and occupation of the suit property during the pendency of the suit till delivery of possession @ Rs. 288.75 per month, as mentioned in the judgment and order dated 9.9.2008. 7. Aggrieved by the said judgment and decree, the petitioners preferred a revision under Section 25 of the Provincial Small Cause Courts Act bearing S.C.C. Revision No. 6 of 2008 before the District Judge, Pauri Garhwal. The learned District Judge, after hearing the parties, has also affirmed the finding of the learned J.S.C.C. and dismissed the revision on the same ground. 8. Learned counsel for the petitioners vehemently urged that the notice given to the petitioners was defective as no time was mentioned in the notice; that the rate of rent was Rs. 50/- per month but respondent/landlord demanded rent @ Rs. 250/- per month by way of notice. It was also urged that the rent was received after the same was deposited in the trial court under sub-section (4) of Section 20 of the said Act and the same was received by the respondents. 50/- per month but respondent/landlord demanded rent @ Rs. 250/- per month by way of notice. It was also urged that the rent was received after the same was deposited in the trial court under sub-section (4) of Section 20 of the said Act and the same was received by the respondents. It was also contended that order of eviction could not have been legally passed against the tenants. 9. Learned counsel for the respondents has on the other hand contended that the respondents have received the amount deposited in the trial court towards the mesne profits/damages and not towards payment of rent. 10. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675] that “On the other hand supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction”. In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be a error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 11. So far as the allegation that the notice is defective is concerned, I have perused the notice. In paragraph 5 of the notice, it is mentioned that after the expiry of 30 days from the date of receipt of the notice, the tenancy shall stand terminated. Moreover, as per provision of Section 106 of the Transfer of Property Act, tenancy can be terminated after expiry of 30 days from the date of receipt of notice. The legality of the notice has been fully discussed in the impugned judgment of the J.S.C.C. In any view of the matter, the notice given to the petitioners cannot be said to be a defective notice. 12. So far as the contention of the petitioners that the plaintiff-respondents received the amount deposited by the defendants in the trial court towards payment of rent, therefore, the right of eviction of the petitioners stands waived is concerned, reliance has been placed by the petitioners on the verdict of the Apex Court in the case of K.A. Ramesh and others Vs. Susheela Bai (SMT) and others [(1998) 3 Supreme Court Cases, 58]. The ratio of the judgment cannot be disputed. This case-law is not applicable to the facts of the case at hand. In the case before the Apex Court, the tenants had sent a telegram to the landlords even months before the filing of the eviction petition that though the rent was paid for those months but the receipt were not issued. Even that apart, by sending a bank draft on 2.2.1989 where there was no litigation between the parties, full payment of arrears was tendered. That was accepted and realized pending the evictions. Even that apart, by sending a bank draft on 2.2.1989 where there was no litigation between the parties, full payment of arrears was tendered. That was accepted and realized pending the evictions. The Apex Court has held that in the present case as the bank draft dated 2.2.1989 for the entire arrears sent prior to the filing of the proceedings, was already encashed by the respondent-landlords, the proviso to Section 10(2)(i) of the A.P. Rent Control Act got clearly complied with and there remained no occasion for the Controller to again ask the appellants to pay the very same amount twice over. The facts of the case at hand are quite distinct. 13. From a bare perusal of para 38 of the judgment and decree passed by the J.S.C.C., it is evident that the court below has clearly observed that the amount of Rs. 15,400/- deposited by the defendants on the first date of hearing has been received by the plaintiffs towards damages for use and occupation of the suit considered the endorsement made by the plaintiffs on the receipts issued to the defendants wherein it is recorded that the amount has not inclined to accept the contention of the petitioners that the receipt of amount by the respondents would amount waiver of their right for eviction of the defendants-petitioners. The learned trial court has rightly held that the receipt of amount cannot be held as waiver of right of eviction and the contention of the petitioners has been rightly rejected that they have become tenant again on receipt of the said amount. 14. Learned counsel for the petitioners has lastly submitted that the amount of mesne profit has been fixed by the trial court arbitrarily. It has been submitted that the rate of rent was Rs. 50/- per month while the mesne profit has been assigned in the order. I am not inclined to accept this argument for the simple reason that it was nowhere alleged by the petitioners in their written statement that the suit property in their possession is not capable of fetching amount of Rs. 288.75 per month as damages for use and occupation. Moreover, it is the discretion of the Court to fix mesne profits at different rate from that of the rate of rent. 15. 288.75 per month as damages for use and occupation. Moreover, it is the discretion of the Court to fix mesne profits at different rate from that of the rate of rent. 15. Having considered the rival contentions of the parties and having gone through the material placed before the Court, as has been discussed in foregoing paragraphs, I find that there is concurrent finding of fact recorded by the trial court as well as the revisional court that the defendant/tenants defaulted in payment of rent, therefore, they are liable for eviction. The impugned orders do not suffer from any perversity or illegality. The writ petition is devoid of merit and is liable to be dismissed outright. 16. The writ petition is dismissed with no order as to costs. However, the petitioners are granted three months time to vacate the suit property and to deliver its vacant and peaceful possession to respondents, provided they pay the amount of damages as fixed by the trial court.