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2011 DIGILAW 1320 (ALL)

Alladeen v. Shyam Sunder Tiwari

2011-05-24

ARUN TANDON

body2011
Arun Tandon, J.;- This is tenant's writ petition. Small Causes Suit No. 56 of 2008 was filed by the landlord for eviction of the tenant on the ground of default in payment of rent. The suit was contested by the tenant and it was stated that he had paid the alleged arrears of rent, the factum whereof is recorded in the diary maintained for the purpose. It is stated that outstanding rent as per the notice was sent through Money Order, which was refused by the landlord. 2. There was also an issue as to what was the rent of the premises in question. According to the landlord it was 500/- per month, while according to the tenant it was only 300/- per month. The trial court recorded a finding that the rent was Rs. 500/- per month and thereafter it proceeded to hold that the tenant has committed default in payment of rent. Accordingly, the suit was decreed vide judgment and order dated 07.11.2009. 3. Not being satisfied, the tenant filed revision under Section 25 of the Small Causes Courts Act, being Revision No. 217 of 2009. The revision has also been dismissed under the impugned order. The revisional court has come to a conclusion that the landlord could not establish that the rent of the premises was Rs. 500/- per month and the finding recorded in that regard by the Judge Small Causes has been set aside. It has been held that the rent was Rs. 300/- per month. The revisional court has thereafter proceeded to examine as to whether the tenant has deposited the said rent for the period it was contended that he had committed default or not. 4. After considering the evidence brought on record and the diary produced for the purpose by the tenant, a specific finding has been recorded that the tenant could not establish the deposit of the rent for the period 01.07.2005 to 30.08.2008 and, therefore, it has been held that the notice, terminating the tenancy of the tenant, was in accordance with law. The decree passed by the trial court has been maintained with the modification that the rent in respect of defaulted period would be calculated at the rate of Rs. The decree passed by the trial court has been maintained with the modification that the rent in respect of defaulted period would be calculated at the rate of Rs. 300/- per month and similarly the rent for the use and occupation of the premises after the date of termination of the tenancy has also been fixed at the same rate. It is against this order that the present writ petition has been filed. 5. On behalf of the petitioner initially an attempt was made to challenge the findings recorded by the revisional court in respect of the default committed by the petitioner and it was contended that the court was not justified in rejecting the evidentiary value of the entries made in the diary, maintained for the purpose, only on the ground that the entries have not been got examined through the handwriting expert. 6. I have heard learned counsel for the parties and have gone through the records of the writ petition. 7. From the records of the present writ petition it is apparently clear that the revisional court has taken care of entire evidences, which had been brought on record by the parties and after considering the diary, which was produced by the tenant for establishing that he had paid the rent for the period 01st July, 2005 to 30.08.2008, an specific finding has been recorded that the tenant could not establish the payment of rent for the said period. The entries in the diary have not been believed for the reasons recorded in the order and not only on the ground that handwriting expert has not been examined. 8. This Court under Article 226 of the Constitution of India cannot re-appreciate the evidence and substitute its own finding to those recorded by the courts below. Writ petition is, therefore, dismissed. 9. At this stage counsel for the petitioner made a request that some reasonable time may be granted to vacate the premises. 10. In the opinion of the Court time up to 30.05.2012 would be just and equitable in the facts of the case. 11. Writ petition is, therefore, dismissed. 9. At this stage counsel for the petitioner made a request that some reasonable time may be granted to vacate the premises. 10. In the opinion of the Court time up to 30.05.2012 would be just and equitable in the facts of the case. 11. Accordingly, it is provided that the petitioner shall not be evicted from the premises till 30th May, 2012 provided (a) he files an affidavit before the Judge Small Causes within one month from today categorically stating that he shall handover peaceful possession of the premises to the landlord on or before 30th May, 2012 and (b) he deposits entire decretal amount and damages for use of the premises up to 30th May, 2012, along with affidavit through bank draft in favour of the landlord. 12. The draft so deposited shall be handed over to the landlord for encashment. 13. In case of default petitioner shall not be entitled to the benefit of this order.