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2009 DIGILAW 3687 (ALL)

Ram Prasad v. Maharaj Saran Srivastava

2009-12-08

SHISHIR KUMAR

body2009
JUDGMENT Hon'ble Shishir Kumar,J. Heard learned counsel for petitioner. 2. This writ petition has been filed for quashing the orders passed by Judge, Small Causes Court as well as revisional court. 3. Respondent-landlord after giving notice under Section 106 of Transfer of Property Act when rent was not deposited, filed a suit for arrears of rent and ejectment. Suit was decreed ex-parte.? Then on application made by petitioner, exparte decree was set aside and petitioner was given an opportunity to be heard and ultimately after hearing both the parties, suit was decreed vide its? judgment and order dated 26.7.2007 holding that petitioner is? defaulter and has not complied? Section 20 Sub Clause 4, therefore, he is liable for ejectment. 4. Petitioner filed a revision.? Revision too has been dismissed after recording a finding that admittedly it is an admitted case of petitioner that petitioner has not complied the provision of Section 20 Sub-Clause 4.? Hence, the present writ petition. 5. Sri Jamal Ali, learned counsel appearing for petitioner submits that from perusal of judgment passed by Judge, Small Causes Court, it is clear that relevant issue regarding whether petitioner was defaulter or not, has not been framed, therefore, in view of Apex Court judgment reported in 1993 ACJ, 597 Rameshwar Dayal Vs. Banda (Dead) through his L.R.S. and others has placed reliance upon para 19 of the said judgment. The same is being quoted below:- "19. It must be remembered in this connection that Rules 4 (1) and 5 of Order 20 of the Code are applicable to the judgments of the Small Cause Court. The Rules are as follows: "4. Judgements of Small Cause Courts- (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon. (2) Judgments of other Courts- Judgements of other courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. 5. Court to state it s decision on each issue- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therfor, upon each separate issue, unless tghe finding upon any one or more of the isuse is sufficinet? 5. Court to state it s decision on each issue- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therfor, upon each separate issue, unless tghe finding upon any one or more of the isuse is sufficinet? for the deicsion of the suit." "Points for determination" referred to in Rule 4 (1) are obviously nothing but "issues" contemplated by Rules 1 and 3 of Order 14 of the Code. The present decision of the Small Cause Court which has not even stated the points for determination and given finding thereon, is obviously not a judgment within the meaning of Section 2(9) of the code.? Since the matters were in controversy between the parties, it is only a judgment which could have given rise to a decree.? The so-called decision of the Small Cause Court, therefore, does not amount to a decree within the meaning of Section 2(2) read with Section 2(9) and Rules 4(1) and 5 of Order 20 of the Code." Taking support of aforesaid judgment, learned counsel for petitioner submits that the Apex Court has said that as the Court has not stated the points for determination and given finding thereon, is obviously not a judgment within the menaing of Section 2(9) of the Code of Civil Procedure.? It has been submitted that admittedly petitioner is an illeterate person and he never make any signature therefore, thukmb impression made thereon was a manipulation by respondent-landlord. 6. I have considered the submissions made on behalf of petitioner and perused the record. From the issues framed by Judge, Small Causes Court, it is clear that issue has been framed that whether petitioner has complied the provisions of Section 20 Sub Clause 4 under Act No.13 of 1972.? In such situation, in my opinion, an issue was framed by the Judge, Small Causes Court to determine? that whether? petitioner is a defautler or not and whether he has complied the provision of Section 20 Sub Clause 4? of the Act.? Therefore, the contention raised by petitioner? placing reliance? of Supreme Court judgment, mentioned above, in my opinion, is not applicable to the present case.? that whether? petitioner is a defautler or not and whether he has complied the provision of Section 20 Sub Clause 4? of the Act.? Therefore, the contention raised by petitioner? placing reliance? of Supreme Court judgment, mentioned above, in my opinion, is not applicable to the present case.? Further Judge Small Causes Court after perusing each and every thing has recorded a finding that notice was sent on a correct address by regisrered post, therefore, under the law presumption is that it has been served and admittedly, petitioner has not deposited the admitted rent on the first date of hearing and has not complied Section 20 Sub-Clause 4 of the Act.? Revisional Court after considering each and every aspect on the basis of pleading of petitioner has recorded a finding that burden is upon petitioner to prove before the Court below that how much amount was due and what amount has been deposited because the landlord -respondent has clearly? stated in the plaint as well as in the affidavit regarding the amount due against petitioner.? A finding has been recorded that in spite of receipt of notice,on the first date of hearing rent should have been deposited but the same has not been deposited. Revisional court has recorded a finding that in spite of settting aside ex-parte decree, the total rent, interest and other amount has not been depostied by petitioner under Section 20 Sub Clause 4. ? 7. In my opinion, finding recorded by both the courts are finding of fact, needs no interference by this Court. 8. In view of aforesaid fact, I find no merit in the writ petition. The writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost. 9. At the last, learned counsel appearing for petitioner submits that some reasonable time may be granted to vacate? the said premises. It is provided that in case, petitioner moves an application within three weeks supported by an affidavit in the shape of undertaking before the court below specifically mentioned therein that immediately after expiry of period of six months from today, he will vacate the said premises and will handover peaceful possession to respondent-landlord without inducting any third person, then in that case, court below after due satisfaction will grant six months time from today. It is also made clear that petitioner tenant will pay the rent of six months from today to respondent landlord before vacation of the said premises.