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2009 DIGILAW 3809 (ALL)

Jugal Kishore v. Addl. Disitrict Judge

2009-12-17

SHISHIR KUMAR

body2009
JUDGMENT Hon'ble Shishir Kumar,J. Heard the learned counsel for the petitioner. 2. In spite of the various notices sent by registered post, nobody has appeared, then this Court had directed to get the publication made in two widely circulated newspapers. In compliance with the order passed by this Court, the petitioner has got the publication made in two widely circulated newspaper in district Jhansi. But in spite of the publication, nobody has turned up on behalf of the respondent. In such circumstances this Court has no option except to hear the matter on merit and to decide the same finally. 3. This writ petition has been filed by the landlord against the order passed by the revisional court by which the revision filed by the respondent-tenant has been allowed and the judgment passed by the Judge Small Cause Court for arrears of rent and ejectment filed by the petitioner has been reversed. 4. It appears that the petitioner filed a suit for arrears of rent and ejectment after serving a notice against the respondent with a specific allegation that the shop in question has been constructed in the year 1986, therefore, Act No.XIII of 1972 is not applicable and in spite of the repeated request and reminders the rent is not being paid, hence, the suit. 5. The petitioner submits that on the basis of the statement and the documents submitted before the Court, the Judge Small Causes Court has decreed the suit vide its judgment and order dated 12.12.2006 holding therein that Act No.XIII of 1972 is not applicable, therefore, if any deposit is made, no benefit can be granted to the respondent-tenant. Further submission has been made that admission by the respondent-tenant has been made that the shop in question has been taken by the respondent-tenant in the month of March 1986 and it does not come in the limits of the Nagarpalika. Learned counsel for the petitioner also shown the Official Gazette dated 7.2.2002 which shows that this particular area does not come in the limits of the Nagar Palika. After considering the admission as well as the other relevant documents, the Judge Small Cause Court has decreed the suit. Learned counsel for the petitioner also shown the Official Gazette dated 7.2.2002 which shows that this particular area does not come in the limits of the Nagar Palika. After considering the admission as well as the other relevant documents, the Judge Small Cause Court has decreed the suit. But the revisional court without considering the admission made by the respondent-tenant only on the basis that an averment in para 3 of the affidavit filed by the respondent has been made that the aforesaid shop has been constructed in the month of December 1984. The revisional court has only on this ground that this fact has not been considered by the court below in such circumstances there will a presumption that Act no.XIII of1972 is applicable and has allowed the revision setting aside the judgment passed by the court below dated 12.12.2006. 6. Learned counsel for the petitioner submits that the revisional court has got no jurisdiction to reappraise the finding and to substitute its own new finding while deciding the revision. The scope under Section 25 of the Provincial Small Cause Court Act is very limited. The admission made by the respodnent-tenant before the court below has totally been ignored. In such circumstance, the order passed by the court below is liable to be set aside. 7. I have heard the learned counsel for the petitioner and perused the record. A finding has been recorded by the Judge Small Cause Court on the basis of admission made by the respondent that it does not come in the limits of the Nagar Palika and it was first time taken on rent in the Month of March,1986. The other relevant documents filed by the petitioner also shows that Act No.XIII of 1972 is not applicable therefore, mere notice under Section 106 of the Transfer of Property Act is sufficient to get the property vacated. The trial court has recorded a finding that the notice given is valid and there was a default of more than 4 months and admittedly the rent has not been paid and the deposit made, if any under Section 20 (4) of the Act, no benefit can be given in view of the fact that Act No.XIII of 1972 is not applicable. But the revisional court without considering all these aspects of the matter has allowed the revision only on the ground that the Judge Small Cause Court has not considered para 3 of the affidavit of the defendant-respondent to this effect that the disputed building has been constructed in the month of December 1984. Though no documentary evidence was ever filed by the defendant-respondent to show therein regarding the said averment, therefore, in my opinion, the revisional court was not justified in reversing the finding of fact recorded by the court below. The scope of revision as settled by law is very limited under Section 25 of the Provincial Small Cause Court Act. In my opinion the revisional court has exceeded its jurisdiction and has not considered the admission made by the tenant-respondent regarding non-applicability of Act No.XIII of 1972. If that was so, the mere notice and a default is sufficient. 8. In view of the aforesaid fact the writ petition is allowed and the order passed by the revisional court dated 10.4.2008 is hereby quashed and the order passed by the Judge Small Cause Court dated 12.12.2006 is hereby restored and confirmed. 9. No order is passed as to costs.