Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 830 (ALL)

Ram Shabad Singh v. Addl. District Judge, Kanpur Nagar and another

2012-04-05

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.— This writ petition is directed against the Judgment and Order dated 26.7.2003 passed by the Addl. District Judge, Kanpur Nagar in SCC Revision no. 111 of 2000 whereby the order dated 14.9.2000 passed by the Ist Addl. J.S.C.C. Kanpur Nagar dismissing the suit for arrears of rent and ejectment filed by the landlord respondent no. 2, was set aside and the said suit stood decreed in favour of the landlord. The background facts, in a nutshell, essentially, are as follows follows: 2. Admittedly, the plaintiff respondent no. 2 is the landlord of the premises in dispute. The defendant petitioner is the tenant of the said premises at the rate of Rs. 500/- per month including the electricity charges. According to the landlord the rate of rent was Rs.450/- per month and, over and above that amount, Rs. 50/- was payable towards electricity charges. It was further submitted that the petitioner committed default in payment of rent , hence, a notice dated 30.12. 1997, under section 106 of Transfer of Property Act was sent to the petitioner terminating his tenancy and claiming arrears of rent from 1.8.1997 to 31.12.1997. The said notice was served upon the petitioner on 1.1.1998 and was replied to by him on 2.1.1998, and on 15.1.1998 two separate money orders were sent by the petitioner for payment of arrears of rent which was refused by the landlord respondent no. 2. In these circumstances, the petitioner deposited the arrears of rent in the Court under section 30(1) of U.P. Act No. 13 of 1972 ( for short the 'Act'). 3. Subsequently, a Suit No. 43 of 1998, for arrears of rent and ejectment was filed by the plaintiff respondent against the petitioner stating that he is the owner and landlord of the disputed premises and the defendant petitioner is the tenant of the said premises at the rate of Rs. 500/- per month including the electricity charges of Rs. 50/-. According to the landlord, the rate of rent was Rs.450/- per month and over and above amount of Rs. 50/- was payable towards electricity charges. Further plea taken in the plaint by the landlord was that since the premises in dispute is newly constructed, the provisions of U.P. Act no. 13 of 1972 ( for short the 'Act') is not applicable in the present case. The respondent no. 50/- was payable towards electricity charges. Further plea taken in the plaint by the landlord was that since the premises in dispute is newly constructed, the provisions of U.P. Act no. 13 of 1972 ( for short the 'Act') is not applicable in the present case. The respondent no. 2 contested the said suit by filing his written statement. 4. The trial court, after considering the materials available on the record and hearing the learned counsel for the parties, dismissed the suit for arrears of rent and ejectment vide judgement and decree dated 14.9.2000. It was, inter alia, held that the premises is covered under the Act. 5. Feeling aggrieved by the above judgement and order, the plaintiff respondent filed SCC revision No. 111 of 2000, which was allowed by the revisional court vide order dated 26.7.2003 setting aside the order dated 14.9.200 passed by the Trial Court. 6. Being aggrieved and dissatisfied with the judgement and order of the the revisional court, the present writ petition has been filed by the tenant petitioner before this court. 7. Learned counsel for the petitioner submitted that the order passed by the Lower Revisional Court is illegal, arbitrary and is based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the evidence on record in right perspective. He further submitted that when plaintiff respondent refused to accept the rent, which was sent by money orders, the petitioner deposited the rent under section 30(1) of the Act . It was a valid deposit, therefore, the trial court had rightly dismissed the suit of the landlord after considering the entire material available on record. The revisional court had no jurisdiction to reappraise the findings of fact and substitute its own finding and as such has exceeded its jurisdiction by interfering with the findings of the fact recorded by the trial court which is not permissible under the revisional jurisdiction. 8. Per contra, learned counsel for the plaintiff respondent submitted that the order passed by the revisional court is just and proper and the same does not suffer from any illegality warranting any interference by this court. 9. Heard the learned counsel for the parties and perused the record. 10. According to the respondent , the rate of rent was Rs. 450/- per month and, apart from that, a sum of Rs. 9. Heard the learned counsel for the parties and perused the record. 10. According to the respondent , the rate of rent was Rs. 450/- per month and, apart from that, a sum of Rs. 50/- per month was also payable towards electric charges by the petitioner. On the other hand , the petitioner has not disputed the rate of Rent at Rs. 450/- per month, has only disputed that the electric charge was Rs. 40/- and not Rs. 50/- per month and further submitted that since under the provisions of U.P. Act no. 13 of 1972 the electricity charges are not part of rent, the tenant can not be evicted under the said Act merely for non payment of electricity charges. Here, in the present case , there is no dispute with respect to rate of rent at Rs.450/- per month. The record further reveals that a registered notice under section 106 of the Transfer of Property Act was sent on 30.12.1997 which was served on the petitioner on 1.1.1998 and was duly replied to on 2.1.1998 and thereafter two separate money orders amounting to Rs. 1450/- and Rs. 1000/- were sent by the petitioner on 15.1.1998 to the landlord which were refused by the respondent on 10.2.1998. On refusal of the said money orders, the petitioner was left with no option but to deposit the rent under section 30(1) of the Act in the court. The record further reveals that the petitioner , thereafter , deposited rent for Rs. 2450/- on 2.3.1998 and Rs. 1470/- on 7.3.1998 under section 30(1) of the Act and continued to deposit the rent in the court. 11. The trial court has categorically recorded a finding that the petitioner after receipt of notice sent money orders well within the stipulated time to the landlord and after refusal thereof, the arrears of rent was deposited by the petitioner in the court under section 30(1) of the Act on 2.3. 1998 within one month of the refusal. In support of his contention, the petitioner also adduced his oral as well as documentary evidence wherein he has clearly stated that after refusal of the money orders by the landlord, he deposited the rent under section 30(1) of the Act . This vital fact has been completely ignored by the revisional court. 1998 within one month of the refusal. In support of his contention, the petitioner also adduced his oral as well as documentary evidence wherein he has clearly stated that after refusal of the money orders by the landlord, he deposited the rent under section 30(1) of the Act . This vital fact has been completely ignored by the revisional court. The lower revisional court has illegally and arbitrarily recorded a finding that the petitioner had committed default in payment of arrears of rent. It is suffice to say that the record of the case reveals that the deposits made under section 30 of the Act were valid and in accordance with law and on the date of institution of the suit, the petitioner was not in arrears of rent for more than four months and as such the landlord could not have filed the suit for arrears of rent and ejectment under section 20 of the Act. 12. It is not disputed that the disputed premises is covered under the Act. The revisional court has also, without any rhyme or reason, illegally held that the electricity charges were Rs. 50/- per month and not Rs. 40/- per month overlooking the finding recorded by the trial court that, over and above the rent of Rs. 450/- , the electricity charges were Rs. 40/- per month. The record further reveals that at no point of time the petitioner had committed any default in payment of arrears of rent. Thus the order passed by the revisional court is illegal and unjustified and is based on complete misreading of the case and misconception of the legal position relevant to the matter. 13. In this connection reference may be made to the following few decisions with regard to jurisdiction of the revisional court. In the case of Iftikhar Hussain Khan and another Vs. Vth Addl. District Judge, Bareilly and others : 2007 (3) JCLR 7(All) this court in para 10 has held as under: "10. The revisional Court, in addition to what has been stated above, has exceeded in its jurisdiction in interfering with the question of facts. On the basis of the postal receipt, the trial Court concluded that the notice was sent, on 24-6-1985, as stated by the petitioners-landlords. The revisional Court, in addition to what has been stated above, has exceeded in its jurisdiction in interfering with the question of facts. On the basis of the postal receipt, the trial Court concluded that the notice was sent, on 24-6-1985, as stated by the petitioners-landlords. It was not permissible for the revisional Court to arrive at a different finding on the basis of the said document, even if, two views were possible." In the case of Laxmi Kishore and another Vs. Har Prasad Shukla : 1981 ARC 545 while discussing the power of revisional court has held in paras 18,19 and 20 as under: "18. the court deciding a revision under section 25 of the Provincial Small Cause Courts Act has to satisfy itself that the trial court's decree or order is according ot law. Of course, the Revisional court should keep in mind the Supreme Court's dictum in Naicker' Case (Supra) that a wrong decision on fact is also a decision according to law. 19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the Court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz, validity of notice, is sufficient for its decision. 20. But, if it finds that a particular finding of fact is vitiated by an error of law, it has a power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact." This court in the case of Smt. Prem Kumari Mehrotra Vs. XIIIth Addl. District Judge and another : 2005 (1) SCLR 380 (All) in para 5 has held as under: "5. It cannot enter into the evidence, assess it and determine an issue of fact." This court in the case of Smt. Prem Kumari Mehrotra Vs. XIIIth Addl. District Judge and another : 2005 (1) SCLR 380 (All) in para 5 has held as under: "5. In my opinion even if the findings recorded by the trial court are erroneous in law the Revisional Court has no jurisdiction to allow the revision out rightly after reassessment of the evidence. The only option left for the Revisional Court in exercise of power under Section 25 of PSCC Act was to remand the matter to the trial Court as held in 1979 AWC 746." 14. Thus, from perusal of the aforementioned decisions, it is explicit that under section 25 of Provincial Small Causes Courts Act, the revisional court has no jurisdiction to reassess and reappraise the evidence and to reverse the findings of trial court on the questions of fact. 15. In the present case, while setting aside the judgement and decree of the trial court , has recorded a perverse finding . The reasons assigned by the revisional court is superficial and has applied a very casual and superficial approach and has come to a cryptic, abrupt and erroneous conclusion. The impugned order passed by the revisional court , looking from any angle, cannot stand the scrutiny of law and the same is totally illegal and against the settled principles of law . 16. In view of what has been discussed, herein above, the writ petition succeeds and is allowed. The impugned Judgment and Order dated 26.7.2003 passed by the Addl. District Judge , Kanpur Nagar in SCC Revision no. 111 of 2000 whereby the judgement and decree dated 14.9.2000 passed by the Ist Addl. J.S.C.C. Kanpur Nagar dismissing the suit for arrears of rent and ejectment filed by the landlord respondent no. 2, was set aside, is hereby quashed. The judgement and decree passed by the trial court is hereby confirmed. _____________