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2011 DIGILAW 598 (ALL)

Samsuddin v. Shamim Ahmad and others

2011-03-09

RAKESH TIWARI

body2011
RakeshTiwari, J.:- Heard counsel for the petitioner and perused the record. 2. Suit no. 11 of 1979 was filed by the father of respondent against the petitioner in the court of Judge, Small Causes Court/Civil Judge (JD), J.P. Nagar for recovery of unpaid rent for the period August 1977 to October, 1988 and eviction of the petitioner from the accommodation in dispute. Tenancy of the petitioner was also terminated by notice. 3. The tenant petitioner contested the suit and filed written statement admitting the tenancy at the rate of Rs. 10/- per month but pleaded that all the taxes were included in the rent. He also admitted the rent due but denied having received any notice or to have refused any notice or to have manipulated endorsement with the help of the post man. He further stated that the entire rent, interest, costs of the suit and the counsel fee amounting to Rs. 640/- have been deposited in the court on 5.2.1981 and he is entitled to the benefit of sub section (4) of section 20 of U.P. Act no. 13 of 1972. 4. After the witnesses were examined, the trial court decreed the suit in favour of the plaintiff respondent vide judgment and order dated 24.1.1985 holding that notice had been served upon the defendant and rent had not been deposited by him on the first date of hearing, as such the tenant is liable to be evicted. 5. The aforesaid judgment and order dated 24.1.1985 was challenged by the petitioner in Civil Revision No. 49 of 1985. The revisional court i.e. IInd Additional District Judge, Moradabad by judgment and order dated 4.7.1986, allowed the revision, set aside the order dated 24.1.1985 and remanded the case for reconsideration holding that two points require determination in this case, firstly as to whether any valid notice had been served upon the tenant and secondly whether the rent due alongwith interest was deposited in court under section 20(4) on first date or not. 6. On remand, suit no. 11 of 1979 was retried by Munsif, Amroha, district Moradabad. By judgment and order dated 24.10.1986, claim of the plaintiff landlord was rejected. This order was challenged by the plaintiff landlord in SCC revision no. 43 of 1986. 6. On remand, suit no. 11 of 1979 was retried by Munsif, Amroha, district Moradabad. By judgment and order dated 24.10.1986, claim of the plaintiff landlord was rejected. This order was challenged by the plaintiff landlord in SCC revision no. 43 of 1986. The Additional District Judge,VIIIth, Moradabad by his judgment and order dated 9.3.1990, allowed the revision, set aside the judgment and order dated 24.10.1986 remanding the matter again to the court below for retrial of the suit. 7. On remand, the Judge, Small Cause Court/Civil Judge (J.D.), J.P. Nagar examined two witnesses of the plaintiff and two witnesses produced on behalf of the tenant defendant were examined. The Judge, Small Cause Court/Civil Judge (JD), J.P. Nagar by its judgment and order dated 31.5.2008, decided suit no. 11 of 1979 in favour of the plaintiff directing the defendant tenant to vacate the house in dispute. 8. Aggrieved by the order, the tenant petitioner preferred SCC revision no. 8 of 2008 which too has been dismissed by the Additional District Judge/Special Judge, J.P. Nagar vide judgment and order dated 28.1.2011. 9. Order of the court below dated 31.5.2008 passed by JSCC/Civil Judge (JD), Amroha, J.P. Nagar in suit no. 11 of 1979 and judgment and order dated 28.1.2011 passed by Additional District Judge/Special Judge, J.P. Nagar in SCC revision no. 8 of 2008, have been challenged by means of the present petition. The petitioner has prayed for quashing of the aforesaid orders and further for issuance of a writ of mandamus directing the respondents not to dispossess him from the house in dispute. 10. It appears from record that in the suit, following issues had been framed : @Hindi@@ 11. In the judgment and order dated 24.10.1986, issue no. 4 regarding service of notice was decided thus : @Hindi@@ 12. It was further held that since notice had not been served upon the petitioner, issue no. 1, 2 and 3 did not require any finding. So far as issue no. 5 is concerned, it was held that the plaintiff was not entitled to any relief. 13. In S.C.C. Revision no. 43 of 1986, Saleemulla Vs. Shamsuddin, the revisional court, allowed the revision, set aside the impugned order under revision dated 24.10.1986 and case was remanded back to Judge, Small Causes Court to for considering the evidence led by the parties on the issues framed and thereafter for recordings findings offact. 13. In S.C.C. Revision no. 43 of 1986, Saleemulla Vs. Shamsuddin, the revisional court, allowed the revision, set aside the impugned order under revision dated 24.10.1986 and case was remanded back to Judge, Small Causes Court to for considering the evidence led by the parties on the issues framed and thereafter for recordings findings offact. The reasons given by the revisional court for remanding the matter for examining the evidence were thus : "Plaintiff examined himself as PW1 and Sri Masoor Ahmad PW-2and defendant examined Shamsuddin DW-1 and Movin Ahmad DW-2. The learned JSCC decided the issue no. 4 only. Rest of the issues were not decided and he dismissed the plaintiff's suit with costs. The learned counsel argued that the learned JSCC has not scrutinized the evidence of the witnesses. He only mentioned the evidence of plaintiff PW-1 but he does not scrutinize the evidence of Masoor Ahmad P.W.-2. Similarly, he did not scrutinize the evidence of defendants. The learned counsel for the revisionist argued that the defendant had knowledge of the fact that the plaintiff was going to file a suit for ejectment and he had filed the written statement. Even then the learned JSCC believed that the notice on the defendant was not sufficient as the postman has not written on Ext. 1 to 4, that defendant had refused to take them. As the parties had adduced their evidence and four witnesses were produced i.e. two by the plaintiff and two by the defendants, but their evidence appears to have not been scrutinized carefully by the learned JSCC because the evidence of Masoor Ahmad PW-2 has not been mentioned there. I, therefore, find force in the contention of the learned counsel for the revisionist that this case be remanded for fresh trial according to law. It is further to be noted that when the issues were framed by the learned JSCC, he ought to have decided the same also. Thus, it is clear that the learned lower court did not scrutinize the evidence. On the contrary, the learned counsel for the respondent contended that the findings on issue no. 4 is on fact and it cannot be disturbed in revision. It is true that the evidence of all the witnesses is to be taken into consideration regarding service of notice." 14. On remand, issue no. 4 regarding service of notice etc. On the contrary, the learned counsel for the respondent contended that the findings on issue no. 4 is on fact and it cannot be disturbed in revision. It is true that the evidence of all the witnesses is to be taken into consideration regarding service of notice." 14. On remand, issue no. 4 regarding service of notice etc. was decided afresh by the JSCC in suit no. 11 of 1979. The court held that tenant had full knowledge about the notice sent to him under section 106 of Transfer of Property Act demanding arrears of rent and terminating his tenancy. It is because of this knowledge that he avoided service of three notices sent by the landlord on 19.10.1978, 6.11.1978 and 22.11.1978. The court found that first notice dated 19.10.1978 had returned without service. On the second notice dated 6.11.1978, an endorsement had been made that Samsuddin to whom the notice was addressed, does not live in Amroha. The third notice dated 22.11.1989 was served upon the petitioner, of which carbon copy is available. Thus, after appreciating the documentary evidence as well as oral evidence on record, the court concluded that petitioner had knowledge about the notice as he had a talk with the landlord for mutual settlement thereafter. The court also noticed that on the third notice parentage of Samsuddin was also written and from the evidence it was proved that in the locality where the tenant was living, there is no other person of name of Samsuddin. There is endorsement on this notice that the petitioner had refused to accept the notice. It has also come on record in the evidence that petitioner is living in the house of one Habibullah alias Diwanjee and this fact is not known even to his wife, which establishes that petitioner was not living in the house in dispute and has sublet it to his brother Raju. Relevant extract of the findings recorded by the court below,is thus : @Hindi@@ 16. So far as service of notice is concerned, the court has followed the ratio laid down in 1936 A.L.R.-313 and held that it was proved that the notice was served. Relevant extract of the finding in this regard is thus : @Hindi@@ 16. As regard issue no. 1 and 2 are concerned, the court below after appreciating the evidence recorded finding in favour of the landlord. Relevant extract of the finding in this regard is thus : @Hindi@@ 16. As regard issue no. 1 and 2 are concerned, the court below after appreciating the evidence recorded finding in favour of the landlord. The court has recorded a finding regarding subletting as the tenant has himself admitted the fact that he is living in the house of Habibullah alias Diwanjee and his wife also does not know about it, which clearly establishes that he has sublet the house in dispute to his brother Raju. Lastly, the court held that petitioner was a defaulter; that he is not living in the house in dispute and has sublet it which are proved from the record, as such case is landlord deserves to be allowed. 17. Learned counsel for the petitioner has contended only two points, (i) that findings recorded by the trial court are perverse and the revisional court has endorsed those findings without application of mind, and (ii) that petitioner has no other accommodation and if he is evicted, he will be on the road. 18. From the argument and perusal of record, it is apparent that the landlord had terminated tenancy of the petitioner as far back as in the year 1979. The court below has found that petitioner was a defaulter in payment of the rent. As regards service of notice, the court has come to a conclusion that notice was served upon the petitioner, by which arrears of rent was demanded and his tenancy had been terminated. 19. The matter has been remanded twice to the trial court on the issue of service of notice and after evidence on retrial, the JSCC has now recorded a finding that notice was served upon the defendant tenant and he is living at another place i.e. in the house of Habibullah alias Diwanjee. Finding regarding subletting by the tenant has also been confined. 20. The revisional court has not endorsed the findings of the trial court mechanically but has applied its mind while affirming the findings of the trial court observing that scope of revision is limited one and that the revisional court cannot reappreciate the evidence for recording another finding if reasonable conclusions have been drawn by the trial court and its findings are not perverse. However, he has remanded the matter after observing that trial court has not considered the evidence of witnesses properly as appears from the judgment. 21. The only contention of the petitioner on which emphasis has been laid by him is that the petitioner he will come on the road if evicted from the house in dispute, I am not in agreement with this contention for the reason that findings of fact have been recorded after retrial of the suit on remand and examination of additional witnesses on the question of factum of service of notice from which it has clearly come out in evidence that petitioner on his own showing is living in the house of Habibullah alias Diwanjee, therefore there is no question of any hardship to him. A tenant cannot reap benefit of tenancy by subletting and depriving the landlord of his need. 22. For all the reasons stated above, there appears to be no illegality or infirmity in the orders impugned. The writ petition has no merit and is accordingly dismissed. No order as to costs.