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2010 DIGILAW 1286 (ALL)

Nazakat Wali Khan @ Pappu v. Mohammad Umar

2010-04-21

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard counsel for the petitioner and for the respondent-caveator. 2. This petition is directed against concurrent orders dated 25.2.2009 and 23.3.2010 by which a suit for eviction and arrears of rent filed by the respondent-landlord has been decreed by both the courts below. 3. It appears that the respondent-landlord instituted a S.C.C. Suit no.48 of 2001 claiming to be the owner and lord of the disputed premises where the petitioner was a tenant at a monthly rent of Rs.450/- apart from water tax etc. and the premises was a new building where U.P. Act no.XIII of 1972 did not apply and despite notice demanding an arrears of rent from 1.9.1999 to 30.4.2001, neither it was paid nor the premises was vacated. 4. The petitioner-tenant contested the suit admitting the tenancy and rate of rent with the further allegation that no legal notice was ever served on him and the disputed premises is an old building and the Act was applicable and he was not in default of payment of rent and in fact he had paid advance rent of Rs.25,000/- at the time of inception of the tenancy which was never adjusted despite an understanding to that effect. 5. After the parties had led their evidence, both the courts below decreed the suit holding that a valid notice was duly served, the Act did not apply and the petitioner was in arrears of rent. 6. Learned counsel for the petitioner has urged that merely because the photocopies of the notice, receipt etc. were admitted in evidence, they were inadmissible as they were not proved nor the original produced. Thus, it is alleged, the courts below erred in law in relying upon it. In support thereof, he has relied upon a decision of the Apex Court rendered in the case of L.I.G. of India and another Vs. Ram Pal Singh Bisen [2010 AIR SCW 1900]. 7. No exception can be taken to the ratio rendered in the case of Ram Pal Singh Bisen (Supra). However, the question is whether the ratio applies in the present case. No doubt, the trial court had observed that the photocopies of the notice, its receipt etc. were filed through list no. Ram Pal Singh Bisen [2010 AIR SCW 1900]. 7. No exception can be taken to the ratio rendered in the case of Ram Pal Singh Bisen (Supra). However, the question is whether the ratio applies in the present case. No doubt, the trial court had observed that the photocopies of the notice, its receipt etc. were filed through list no. 6-Ga, 7-Ga, 8-Ga and 9-Ga, but it was found by the revisional court from the record that the plaintiff had filed carbon copy of the notice, original receipt of the registered notice and its receipt through list no. 38-Ga and the said papers were also exhibited as 41Ga/1, 42Ga/1 and 42Ga/2 which were all public documents. This finding has not been shown to be perverse. Thus, the courts below were justified in rendering the finding on notice. 8. It is then urged that even though the defence of the petitioner had been struck off, he was entitled to an opportunity to cross-examine the witnesses and therefore the judgments are vitiated. 9. Both the courts below have found that after the defence of the petitioner was struck off, he had preferred a revision against the said order but the revisional court dismissed the revision vide order dated 23.10.2008 and directed the parties to appear before the courts below on 20.11.2008. However, the petitioner-tenant did not appear before the courts below on 20.11.2008 whereupon the trial court through paper no. 86-Ga sent a notice intimating about the date for evidence on 6.1.2009 and which notice was duly served on Sri K.G. Gupta, Advocate but neither the petitioner nor Sri Gupta , advocate appeared, thus, the court below was justified in holding that the petitioner himself did not appear before the court despite sufficient notice, therefore, there was no question of denial of cross examination. 10. Lastly, it is urged that since no issue with regard to applicability of the Act was framed, the courts below could not render any finding on it. 11. No doubt, though in a summary suit under the Small Cause Court Act, the courts are not required to frame issues as in a regular civil suit but yet where the parties are at variance on a substantial issue, points for determination are required to be framed. 11. No doubt, though in a summary suit under the Small Cause Court Act, the courts are not required to frame issues as in a regular civil suit but yet where the parties are at variance on a substantial issue, points for determination are required to be framed. It is correct that the trial court did not frame any issue to the aforesaid fact separately but while dealing with the issue with regard to default, it has recorded its finding that the Act did not apply. The revisional court has considered the assessment orders of 1986-87 and other evidence and found that the date of completion was in 1986-87 and therefore the Act did not apply.There is nothing on record to show or any pleadings to that effect that at the time of framing of issues, the petitioner raised any objection as it is being raised now. It is also apparent that he was not taken by surprise as he had replied to the allegation in his written statement. It is also evident that the parties had led evidence to prove their respective averments in that behalf. Thus, merely because the issue was not framed, judgment cannot be set aside especially when the petitioner has failed to demonstrate any prejudice caused to him because of it. 12. No other point has been urged. 13. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.