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2012 DIGILAW 852 (ALL)

Hari Shankar Dubey v. Pratap Shankar

2012-04-06

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.;— 1. This writ petition has been filed against the judgment and order dated 28.2.2012 passed by the District Judge, Banda upholding the order dated 28.7.2011 passed by the Civil Judge, Senior Division, Banda whereby the suit filed for arrears of rent and ejectment was decreed. 2. Learned counsel for the petitioner has submitted that the finding recorded by the court below 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 matter in the right perspective. He further submitted that the respondent was not the sole landlord of the premises in fact the premises was let out to the petitioner by the respondent and his brother, Pran Nath. It was further submitted that Rs. 52,000/- which was spent by him for repairing and renovating the disputed premises was neither reimbursed nor was adjusted in the rent. 3. Per contra, learned counsel for the respondent has supported the impugned orders passed by the court below and has submitted that the courts below have very categorical recorded the finding of fact and held the petitioner to be a defaulter in payment of rent. It was further submitted that the orders passed by the courts below are just and proper and the same do not suffer from any illegality warranting any interference by this court. It was further submitted that the agreement dated 27th June 1984 at the time of letting out the disputed premises was entered into between the plaintiff whereby petitioner had attorned the plaintiff-respondent as his sole landlord and privity of contract was between the petitioner and the plaintiff. 4. Heard the learned counsel for the petitioner and perused the record. 5. The courts below have recorded a finding of fact that the petitioner committed default in payment of rent and have given cogent, convincing and satisfactory reasons while passing the impugned orders in favour of the respondent-landlord. The court below have very categorically recorded a finding that the petitioner has not been able to adduce any cogent evidence to prove the payment of rent to the plaintiff. 6. No dispute has been raised by the brother of the plaintiff with regard to the ownership of the premises which was let out by the respondent landlord to the petitioner. 6. No dispute has been raised by the brother of the plaintiff with regard to the ownership of the premises which was let out by the respondent landlord to the petitioner. Besides this, the agreement dated 27th June 1984 was also placed on record which indicates that premises was let out by the respondent to the petitioner. Although the said agreement is unregistered but it can be read in evidence for collateral purposes as provided in Section 49 of the Registration Act. It is also notable that the brother of the plaintiff-respondent Pran Nath never came before the courts below to dispute the contention of the plaintiff by filing impleadment application or any objection, as such, there was no dispute with regard to ownership between the two brothers and it is not necessary to implead the co-owner as a party in a suit for recovery of arrears of rent and ejectement. 7. The findings recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material. The courts below have on meticulous evaluation of evidence held the petitioner to be defaulter in payment of arrears of rent and, therefore, was rightly liable to be evicted. The findings recorded by the courts below are based on material on record and this Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the courts below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse. 8. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference. 9. In the result, the writ petition fails and is dismissed. 10. Lastly, learned counsel for the petitioner urged that at least three months' time may be granted to the petitioner for vacating the premises in dispute so that in the meantime he may be able to search out some other suitable accommodation. The learned counsel for the respondent did not raise any objection to it. 11. 10. Lastly, learned counsel for the petitioner urged that at least three months' time may be granted to the petitioner for vacating the premises in dispute so that in the meantime he may be able to search out some other suitable accommodation. The learned counsel for the respondent did not raise any objection to it. 11. As urged by the learned counsel for the petitioner, three months' time is granted to the petitioner to vacate the premises in dispute provided he gives his undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that he will handover the peaceful possession of the said accommodation to the respondent without inducting any third person within a period of three months from today and will pay the entire arrears of rent including the rent at the current rate upto the date of delivery of the possession, as indicated herein above. 12. In the event of default of any of the aforesaid conditions, the respondent will be at liberty to evict the petitioner with the aid of the police force. _____________