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2010 DIGILAW 1371 (ALL)

Rajiv Khanna v. Second Addl. D. J.

2010-04-27

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner but none appears for the contesting respondent. 2. This petition is directed against concurrent judgments dated 31.3.1998 and 20.7.1999 by which an eviction suit of the petitioner landlord has been dismissed by both the courts below. 3. The petitioner filed SCC Suit No. 8 of 1982 with the allegation that he became owner of the disputed shop by virtue of a decree passed in Original Suit No. 11 of 1968 where the respondent was a tenant at monthly rate of Rs. 45/- but he defaulted in payment of rent from 31.5.1973 and despite a notice neither the rent was paid nor the premises was vacated and as such the suit was filed for eviction and arrears of rent from 31.5.1973 to 31.3.1982. 4. The respondent no. 3 filed his written statement inter alia alleging that he was depositing rent under Section 30 of U.P. Act No. 13 of 1972 treating the respondent no. 4 as the landlord. The respondent no. 4 filed his written statement alleging that no cause of action arose for filing the suit and that the question of title could not be decided in proceedings under Small Causes Courts Act. It was further pleaded that the rights of the parties are subjudice in Second Appeal No. 10873 of 1981 and the petitioner is not entitled to receive rent till the decision of the said suit. After contest the trial court dismissed the suit vide order dated 31.3.1998 and a consequential revision was also dismissed on 20.7.1999. 5. The only argument raised is that in proceedings under Small Causes Courts Act, prima facie, title could be examined. 6. Before the Court deals with the argument, the background facts, which have been found to be proved, are required to be examined. 7. The courts have found that the disputed premises was let out to the respondent tenant by the father of the respondent no. 4 and rent was being received by them. However, the petitioner never gave any notice to him about the alleged final decree dated 31.5.1973 by which the premises fell in his share nor demanded rent before the filing of the suit and though the rent was deposited under Section 30(2), the entire alleged arrears were deposited at the first hearing of the suit. However, the petitioner never gave any notice to him about the alleged final decree dated 31.5.1973 by which the premises fell in his share nor demanded rent before the filing of the suit and though the rent was deposited under Section 30(2), the entire alleged arrears were deposited at the first hearing of the suit. The courts below have also found that the decree of Suit No. 11 of 1968 had been stayed by this Court which was vacated only on 27.1.1984 and therefore, the decree could not be acted upon till then and therefore, the petitioner could not become the landlord. Once these findings of fact have not been shown to be perverse or vitiated, even accepting the argument would not in any manner render the judgment illegal. 8. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.