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2011 DIGILAW 501 (ALL)

Ved Prakash Sharma v. Arun Kumar Saxena

2011-03-01

RAKESH TIWARI

body2011
JUDGMENT Hon'ble Rakesh Tiwari, J. - Heard learned counsel for the parties and perused the record. The petitioner-defendant is tenant of a shop situated over property no. 242, Jalesar Road, Firozabad. He claims tenancy at the rate of Rs.100/- per month. By legal notice dated 9.6.1992 the respondent-plaintiff terminated the tenancy of the petitioner-defendant. 2. The respondent-plaintiff filed JSCC Suit No. 17 of 1998, Arun Kumar Saxena and others versus Ved Prakash Sharma for arrears of rent and eviction against the petitioner-defendant in the court below. Upon receipt of notice, the suit was contested by the petitioner-defendant claiming that he was tenant of the aforesaid premises at the rate of Rs.100/- per month and has not been defaulter in payment of rent w.e.f. 1.1.1991 and that he continuously paid the rent at the rate of Rs.100/- per month till the year 1994. Thereafter, the petitioner paid the rent through tender since January, 1995 to 2010. Apart from rent, the petitioner has also claimed to have paid the electricity bill etc. 3. During the pendency of the dispute, Arun Kumar Saxena died on 7.7.2010 bequeathing all his property in favour of Sri Babu Lal Saxena by a registered will deed. The name of Sri Babu Lal Saxena was thereafter substituted in place of Sri Arun Kumar Saxena,(since deceased). 4. The Judge Small Causes Court decreed the suit vide judgment and order dated 29.3.2010 in favour of the respondent-plaintiff holding that the petitioner is defaulter in payment of rent. SCC Revision No. 5 of 2010 was preferred by the petitioner against the aforesaid judgment and order dated 29.3.2010 passed by the Judge Small Causes Court, Firozabad on the ground that he is not the defaulter in payment of rent and that no such issue has been framed before the court below. 5. Learned counsel for the petitioner has also submitted that the petitioner has no other shops where he can run business and that he is ready to pay the respondent-landlord the amount due, if any, in respect of the shop in dispute. 6. Learned counsel for the petitioner has not argued any other point except that he may be granted some time to vacate the premises in suit. 7. 6. Learned counsel for the petitioner has not argued any other point except that he may be granted some time to vacate the premises in suit. 7. Learned counsel for the respondent has submitted that the petitioner is a chronic defaulter in payment of rent and that after appreciation of evidence on record both the courts below have recorded concurrent findings of facts that the petitioner is a defaulter and the writ petition is liable to be dismissed on this ground. 8. After hearing the parties the Revisional Court rejected the revision by confirming the judgment and order dated 29.3.2010 passed by the Judge Small Causes Court/ Civil Judge (Junior Division), Firozabad. The concurrent findings of facts of both the courts below recorded in the judgments and orders dated 29.3.2010 and 21.1.2011 and decree dated 25.1.2011 have been challenged in the present writ petition on the ground that the courts below have committed an error in law as well as apparent on face of record in holding that the petitioner was a defaulter in payment of amount of rent as well as tax. 9. It is apparent from the record that the courts below have framed issue whether the petitioner was defaulter or not and as such the contention of learned counsel for the petitioner that no issue was framed in this regard is not sustainable. Furthermore, in view of concurrent findings of facts of the courts below that the petitioner is a defaulter coupled with the fact that he is ready to pay balance amount of rent establishes the fact that he a defaulter in payment of rent. 10. Accordingly, the writ petition is dismissed as there is no illegality or infirmity in the orders passed by the courts below. No order as to costs. 11. The petitioner is granted three months' time for vacating and handing over peaceful possession of the premises in dispute to the landlord.