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2012 DIGILAW 13 (ALL)

Ashok Kumar Jain v. Buddhi Prakash

2012-01-02

PRAKASH KRISHNA

body2012
Hon'ble Prakash Krishna,J.:- The present revision has been filed under section 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 24th of September, 2009 passed by the Additional District Judge/Special Judge exercising the power of Judge, Small Causes Court in SCC Suit No.19 of 2006, by the tenant. The Court below by the order under revision has decreed the suit for recovery of arrears of rent, damages for use and occupation and also for ejectment of the defendant tenant from the premises in question. The aforestated suit was instituted on the pleas inter alia that the defendant tenant has failed to pay the rent since 1st of July, 2004. The rent was claimed at the rate of Rs.1400/- per month. The tenancy of the defendant tenant has been determined by serving a notice. It was pleaded that initially the rate of rent was Rs.800/- per month but was enhanced subsequently to Rs.1400/- per month w.e.f. 1st of January, 2003 as two additional newly constructed rooms were also given to the tenant. The suit was contested on the pleas inter alia that the rate of rent was initially Rs.150/- which was enhanced to Rs.500/- per month and then to Rs.800/- per month and that the defendant tenant is not in arrears of rent and has deposited the rent at the rate of Rs.800/- per month in the Court. The trial Court framed six points for determination. It has been found by it that the defendant tenant is in arrears of rent as claimed by the plaintiff and that the rate of rent is Rs.1400/- per month. He has committed default in payment of rent. The notice determining the tenancy has been validly served on the defendant tenant. The learned counsel for the tenant has assailed the findings recorded by the trial Court on issue Nos. 1 and 2 only. Submission is that in the plaint the date of commencement of the tenancy has not been disclosed. Elaborating the argument, it was submitted that the trial Court was not justified in holding that the rate of rent is Rs.1400/- per month or that the defendant tenant is in arrears of rent. 1 and 2 only. Submission is that in the plaint the date of commencement of the tenancy has not been disclosed. Elaborating the argument, it was submitted that the trial Court was not justified in holding that the rate of rent is Rs.1400/- per month or that the defendant tenant is in arrears of rent. The learned counsel for the plaintiff opposite party, on the other hand, supports the judgement under revision and submits that the findings recorded by the trial Court are essentially findings of fact based on correct appreciation of evidence oral and documentary. It was submitted by him that initially, the house belonged to three brothers wherein a partition had taken place in the year 1977 and the disputed portion fell in the share of the plaintiff. After partition, the municipal authority allotted fresh number to the accommodation in question. At the time of partition, there was a godown only which fell in the share of the plaintiff. At the time of partition, the said godown was let out to another person and who vacated it subsequently and the plaintiff got constructed additional rooms on the first floor and second floor. Considered the respective submissions of the learned counsel for the parties and perused the record. A bare perusal of the judgement under revision would show that the trial Court has considered each and every aspect of the case. It has noticed that the partition among the brothers of the landlord took place in the year 1978 under a family settlement. The said partition was given effect to in the municipal record and new house number i.e. House No.57/52 B was allotted to the disputed accommodation. Earlier, one tenant Shahjad Prasad Vishwakarma was running a Dal Mill, he closed the Dal Mill and handed over the possession to the plaintiff. The plaintiff raised the constructions thereon. The trial Court has discussed the evidence produced by the defendants in detail in paras 21 to 24 and discarded them as untrustworthy, after giving cogent and valid reasons. No comment was made by the defendants' counsel with regards to these paras. The trial Court has believed the evidence led by the plaintiff that the second floor was not in existence in the year 1985. No comment was made by the defendants' counsel with regards to these paras. The trial Court has believed the evidence led by the plaintiff that the second floor was not in existence in the year 1985. While doing so, it has taken into consideration the attending facts and circumstances of the case, such as municipal record, family settlement and the statement of the outgoing tenant. It may be noticed that the defendant tenant took a stand that Shahjad Prasad Vishwakarma who was earlier tenant of the Dall Mill was his father which was found to be incorrect. Voluminous evidence was produced by the plaintiff landlord that Shahjad Prasad Vishwakarma was a different person other than the father of the defendant tenant. The father of the defendant tenant has died at Delhi. The trial Court has also noticed that there is interpolation and cuttings etc. in the Ration Card produced by the defendant tenant to establish his old tenancy over the accommodation in question. The findings recorded by the trial Court with regard to the rate of rent and the period of arrears of rent are essentially findings of fact. The learned counsel for the defendant tenant could not point out any legal error therein. It was vehemently argued by him that the plaintiff landlord has changed his stand in the replication and took altogether a new case. But he could not substantiate that plea. A copy of the replication has not been placed before this Court. Attention of the Court was drawn towards para 4 of the plaint wherein it is stated that the defendant was initially a tenant of two rooms on the second floor on a monthly rent of Rs.800/-. On 1st of January, 2003, two additional rooms were taken by the defendant and the rent was enhanced to Rs.1400/- per month. The argument of learned counsel for the plaintiff is that the date of initial tenancy has not been disclosed by the plaintiff in the plaint. Non disclosure of the initial date of tenancy to my mind is not relevant, in view of fact that the relationship of landlord and tenant between the parties is admitted and the landlord is claiming arrears of rent for the period 1st of July, 2004 to February, 2006 during which period admittedly the defendant was tenant of the premises in question. It has been found by the trial Court that the rate of rent was raised to Rs.1400/- per month. The said finding is essentially a finding of fact. Any other point was not pressed. There is no merit in the revision. The revision is dismissed. At the end, the learned counsel for the tenant prayed that some reasonable time be given to vacate the disputed premises. The applicant is granted time up to 30th of June, 2012 to vacate the disputed premises subject to the filing of an undertaking on affidavit within a period of one month before the trial court that he will handover the peaceful vacant possession of the disputed accommodation to the plaintiff landlord on or before that date. Within the aforesaid period the applicant is also required to deposit the entire arrears of rent and damages after adjusting the amount, if any, already deposited for the period upto 30th of June, 2012 before the trial court, at the decreed rate. In case of default, the time granted by this Court shall stand vacated.