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2009 DIGILAW 3400 (ALL)

MOHD. SHAMIM v. ADDL. DISTRICT JUDGE

2009-11-03

SHISHIR KUMAR

body2009
JUDGMENT SHISHIR KUMAR, J.-Heard Sri Vikas Tripathi, learned Counsel for the petitioner. In spite of repeated calls, nobody appears on behalf of the respondents, as such this Court has no option except to hear the matter and decide this writ petition on merit. 2. This writ petition has been filed for quashing the order dated 16.1.2006 passed by the Revisional Court in Revision No. 167 of 2005, Annexure-10 to the writ petition. The petitioner being the landlord filed the present writ petition against the respondent-tenant for arrears of rent and ejectment. It was numbered as Suit No. 45 of 1997 and the same was dismissed by order dated 14.2.2001. The revision filed by the petitioner was allowed holding therein that there is relationship between the parties as landlord and tenant and the respondent-tenant is in arrears of rent and has not paid the rent. The Judge Small Causes Court after considering the claim of the parties was pleased to decree the suit after recording a finding that in view of the receipts issued between the parties, there is a relationship between the parties of landlord and tenant and admittedly the respondent-tenant is a defaulter and has not paid the rent. Therefore, she is liable for ejectment. The respondent-tenant filed a revision against the said judgment dated 5.9.2005 which has been allowed without considering the case that a finding in the earlier revision has already been arrived at regarding having a relationship of landlord and tenant and that has become final and it cannot be disturbed by the authority below unless and until that is challenged. 3. Sri Vikas Tripathi, learned Counsel for the petitioner submits that the Judge Small Causes Court while considering the claim has recorded a finding that Mohd. Shamim executed a receipt of rent and on that basis the rent was being paid by the respondent. The receipts were on record, therefore, it cannot be presumed by any means that there is no relationship of landlord and tenant. Further a submission has been made by Mr. Vikas Tripathi that in the earlier revision a finding has been recorded that there exists a relationship between the parties as landlord and tenant on the bases of the relevant receipts issued by the parties before the Court and this finding has never been challenged by respondent-tenant. Further a submission has been made by Mr. Vikas Tripathi that in the earlier revision a finding has been recorded that there exists a relationship between the parties as landlord and tenant on the bases of the relevant receipts issued by the parties before the Court and this finding has never been challenged by respondent-tenant. As such, the Revisional Court has got no jurisdiction to hold that in spite of these documents of execution of rent receipts, there is any doubt regarding the fact of the relationship of the landlord and the tenant. The' Revisional Court has got no jurisdiction to remand the matter only on this ground alone. Reliance has been placed upon a judgment of the Apex Court in the case of Y.B. Patil and others v. Y.L. Patil 1 AIR 1977 SC 392 and reliance has been placed upon para 4 of the of the said judgment which is quoted below: "4. In appeal before us Mr. Gupta on behalf of the appellants has contended that the High Court was in error in not interfering with the order of the Tribunal whereby the revision petition filed by the appellants had been dismissed. It is urged that the Tribunal in affirming the finding of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of section 79 of the Act dealing with revision. This contention, in our opinion, is not well founded. The High Court at the time of the decision of the earlier writ petition on December 18, 1964 recorded a finding and gave directions to the Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal was filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of the proceedings becomes final, it would be binding at the subsequent stage of that proceeding. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of the proceedings becomes final, it would be binding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner. The High Court, in our opinion, was right in holding in the judgment under appeal that concurrent findings of fact arrived at by the Assistant Commissioner, the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition. The appeal consequently fails and is dismissed but in the circumstances with no order as to costs." 4. The learned Counsel for the petitioner submits that once a finding has been recorded, it is not open to reopen the fact in revision. In such circumstances, learned Counsel for the petitioner submits that the judgment passed by the Revisional Court is liable to be set aside. 5. I have considered the submissions made on behalf of the petitioner and have perused the record. In the earlier proceedings, Judge Small Causes Court 'has recorded a finding that Receipts No. 34-C to 55-C clearly indicates that Mohd. Shamim S/o Mohd. Bakhs is the owner and landlord of the property in dispute and the respondent is tenant this fact has been admitted by the respondents in para 1 of the written statement that the father of Mohd. Shamim is Mohd Bakhs. The Court below has taken into consideration the judgment in Rajendra Kumar v. District Judge, Jaunpur 2 1995 (26) ALR 651., in which it his been held that the Trial Court believing the rent receipt has held that as the dependents were paying the rent, therefore, it is clear from the said conclusion that the dependent has admitted the plaintiff to be the landlord of the premises under the provisions of 116 of the Evidence Act. Once this finding has been recorded, the question is whether it is open to the Revisional Court to record other finding not based on the evidence on record. 6. Once this finding has been recorded, the question is whether it is open to the Revisional Court to record other finding not based on the evidence on record. 6. Further it has to be considered that the Revisional Court in the earlier revision has recorded a finding and has established that there is a relationship of landlord and tenant between the parties which was on the basis of the relevant record. The Judge Small Causes Court has recorded a finding to that effect, then, whether the Revisional Court was justified in recording such finding and doubting the relationship of landlord and tenant when that too has become final and has never been challenged by the respondent-tenant in any Court of law. 7. In view of the aforesaid fact, I am of opinion that the judgment and orders passed by the Revisional Court is not sustainable in law and is liable to be quashed. 8. In the result, the writ petition is allowed. The order dated 16.1.2006 passed by the Revisional Court in Revision No. 167 of 2005, Annexure-10 to the writ petition is hereby quashed and judgement and order 5.9.2005 (Annexure 8 to writ petition) passed by the Court of Judge, Small Causes Court is hereby confirmed. 9. No order is passed as to costs.