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2011 DIGILAW 2857 (ALL)

Sanjeev Kumar Tyagi v. Kamlesh Kumari and another

2011-12-15

SANJAY MISRA

body2011
Hon'ble Sanjay Misra,J.:- Heard Sri Ashish Agarwal, learned counsel for the revisionist-tenant and Sri A. C. Shukla, learned counsel, who has put in appearance on behalf of the plaintiff-respondent. This is a revision under Section 25 of the Provincial Small Causes Court Act against the judgment and decree dated 09.09.2011 passed in S.C.C. Suit No.11 of 2007 (Smt. Kamlesh Kumari & others Vs. Sanjeev Kumar Tyagi) by the Additional District Judge, Court no.2, Ghaziabad, as also against the orders dated 09.08.2011 and 27.08.2011 passed in the above suit. Learned counsel for the revisionist-tenant has submitted that the rate of rent was disputed when the revisionist-tenant claimed it to be Rs.2000/- per month and the respondent-landlord claimed it to be Rs.3500/- per month. The submission is that in case the rent was Rs.2000/- per month, the provision of Act No.13 of 1972 would apply and the suit before the Judge, Small Causes Court would not be maintainable. The other submission is that the Court below has without any evidence on record determined the rent to be Rs.3500/- per month and, therefore, the same is illegal and requires to be set aside. The other aspect submitted by learned counsel for the revisionist-tenant is that on 09.08.2011 the matter was fixed and the revisionist-tenant had filed an application for adjournment for the reason that his wife was admitted in the hospital. The adjournment was granted by the Court on payment of Rs.400/- as cost. The matter was fixed for 25.08.2011 on which date the revisionist-tenant made another application for adjournment, which was rejected by the Court below on that date for the reason that he had not deposited the cost imposed by the earlier order and also that although the revisionist-tenant has been granted time to lead his evidence, he had not lead his evidence and his evidence was closed by the earlier order dated 31.05.2011. According to learned counsel, the Court below fixed 27.08.2011 and on that date it heard the plaintiff-respondent and reserved the judgment which was delivered on 09.09.2011. According to learned counsel the refusal of adjournment to the revisionist-tenant was incorrect inasmuch as his wife gave birth to a child on 09.08.2011 and he himself was not well on 25.08.2011 as such the impugned orders dated 09.08.2011 and 27.08.2011 also require to be set aside. According to learned counsel the refusal of adjournment to the revisionist-tenant was incorrect inasmuch as his wife gave birth to a child on 09.08.2011 and he himself was not well on 25.08.2011 as such the impugned orders dated 09.08.2011 and 27.08.2011 also require to be set aside. Having considered the submission of learned counsel for the appellant and perused the record, it is not denied that the evidence of the revisionist-tenant was closed by the order dated 31.05.2011 where against no proceedings have been taken by him. That order has therefore attained finality. When the matter was fixed on 09.08.2011 the same was adjourned at his instance on imposition of Rs.400/- as cost. He did not pay the cost. When the matter was listed on 25.08.2011 an application for adjournment was made by the revisionist-tenant. The said application was refused by the Court below for the reason detailed herein above. Thereafter it appears that the matter was fixed on 27.08.2011 and the revisionist-tenant neither appeared before the Court himself nor through the counsel nor any application was made for adjournment. No intimation was given to the Court. As such while perusing the order dated 27.08.2011, it cannot be held that the same is in any manner illegal or requires any interference in the revision under Section 25 of the Provincial Small Causes Court Act. By the order dated 27.08.2011 the Court has found that the revisionist-tenant was not present and since the matter was proceeding ex-parte against him and it had been fixed for final hearing, it heard the argument of the plaintiff-respondent and reserved the judgment. No error can be found in the view taken by the Trial Court. Insofar as the order dated 09.08.2011 is concerned, the Court had granted adjournment to the revisionist-tenant on payment of Rs.400/- as cost. Since the matter had been directed to proceed ex-parte against him on 30.05.2011 the imposition of cost was quite justified and it cannot be held that the imposition of cost for granting adjournment is in any manner illegal. The challenge to the said order, therefore, cannot succeed in this revision under Section 25 of the Provincial Small Causes Court Act. Insofar as the impugned judgment dated 09.09.2011 is concerned, it will be seen that there was no evidence filed by the revisionist-tenant regarding the rate of rent. The challenge to the said order, therefore, cannot succeed in this revision under Section 25 of the Provincial Small Causes Court Act. Insofar as the impugned judgment dated 09.09.2011 is concerned, it will be seen that there was no evidence filed by the revisionist-tenant regarding the rate of rent. The Court below was considering the evidence available on record to such effect and found that the plaintiff-respondent had given his oral statement and oral evidence of his witness to prove that the rent of premises in question was Rs.3500/- per month. The Court below has refused the claim of the plaintiff-respondent for Rs.5000/- per month as damages and compensation. Consequently, when the Court below has found that the fixed rent was Rs.3500/- per month, it cannot be held that the said finding is in any manner against the evidence available on record. Admittedly, the revisionist-tenant did not lead any evidence on the fact as to what monthly rent was to be paid by him as such the impugned judgment dated 09.09.2011 is based on the evidence available on record and no material irregularities or illegality can be found in the same. This revision is devoid of merit and it is accordingly rejected. No order is passed as to costs.