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2014 DIGILAW 3209 (ALL)

RADHA RAMAN BAJPAI v. ASHOK KOHLI

2014-10-28

PANKAJ MITHAL

body2014
JUDGMENT Hon’ble Pankaj Mithal, J.—This is a revision under Section 25 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as the Act) against judgment and order dated 30.5.2009 passed by the Special Judge Essential Commodities exercising powers of the Small Causes Court in SCC Suit No. 12 of 1996, (Ashok Kohli and others v. Anil Kumar Bajpai and others). 2. The plaintiffs respondents, who are the owners and landlords, instituted the above suit for the eviction of the defendants revisionists as tenant from the shop in dispute which is part of house No. C-21/1-35, Moh. Lajpat Nagar, Maldahiya, Varanasi on the ground of subtenancy and default in payment of rent. The suit after contest has been decreed by the impugned judgment and order both on the ground of subtenancy and default in payment of rent and holding that the defendants revisionists are not entitle to the benefit of Section 20(4) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Rent Act). I have heard Sri C.K. Parekh, learned counsel for the defendants revisionists and Sri Ajay Kumar Singh, learned counsel appearing for the contesting respondents. Three arguments have been advanced by Sri Parekh so as to assail the impugned judgment and order. It has been submitted that the Court below has failed to formulate the points of determination and as such the judgment and order stands vitiated in law. The second submission is that there is no subtenancy and that Radhey Shyam Bajpai and Radha Raman Bajpai were partners of the firm M/s Anil Engineering Company from the very inception and therefore, the Court below erred in treating them to be the subtenants. Lastly, it has been argued that there is no default in the payment of rent and the Court below has illegally included electricity charges as part of the rent in holding the defendants revisionists to be defaulter. 3. The suit for eviction of the tenant from a building is essentially a suit under Section 15 of the Act which is of a summary nature. In view of the provisions of Section 17(1) of the aforesaid Act the provisions of the Code of Civil Procedure are applicable to the proceedings before the Small Causes Court except where it is otherwise provided either by the Code or the Act itself. In view of the provisions of Section 17(1) of the aforesaid Act the provisions of the Code of Civil Procedure are applicable to the proceedings before the Small Causes Court except where it is otherwise provided either by the Code or the Act itself. Order L Rule 1 C.P.C. provides that apart from other provisions of the Code, the provisions of Order XIV C.P.C. relating to the settlement of issues shall not apply to the Provincial Small Causes Courts. Order XX Rule 4(1) C.P.C. which is applicable to proceedings before Small Causes Courts provides that the judgment of a Court of Small Causes need not contain more than the points for determination and the decision thereon. Therefore, it is non-mandatory to frame or settle issues in proceedings before the Small Causes Courts and that formulation of the points for determination and the decision thereof is sufficient. 4. In Dau Dayal Tandon v. Additional District Judge Nanital and others, 1982 ARC 356, a learned Single Judge of this Court held that the provisions relating to settlement of issues contained in Order XIV C.P.C. does not apply to the proceedings of the Small Causes Court in view of Order L Rule 1 C.P.C. and that according to Order XX Rule 4(1) C.P.C. the judgment given by the Small Causes Court should only deal with the points arising for consideration and the decision thereof. It has been further held that where the parties new as to what were the points which fell for consideration and those points were decided by the Judge Small Causes that is sufficient to construe it to be a judgment inasmuch as it is the substance and not the form which is of importance in such matters. Therefore, even if points of determination are not specifically enumerated that would not vitiate the judgment of the Small Causes Court. 5. In the instant case, no doubt the Court below has not formulated the points for determination specifically but each and every point which fell for consideration has been dealt with individually in a chronological order and a decision thereof has been recorded. The said points were known to the parties and they have addressed the Court on each of the above points. 6. The said points were known to the parties and they have addressed the Court on each of the above points. 6. In Yasin v. Murari Lal, 2013 (2) ARC 376 , it has been held that consideration of all points arising in the suit before the Small Causes Court and the decision on each of them after the parties have addressed the Court on them, is sufficient. 7. In such a situation, not only the points which fell for consideration have been decided but the Court has recorded specific decision in respect of each of them which is sufficient to hold it to be a judgment within the meaning of Order XX Rule 4(1) of the C.P.C. 8. The Supreme Court in Rameshwar Dayal v. Banda (Dead) through his Lrs. and another, 1993 (21) ALR 233 and Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381 , only lays down that in proceedings before the Small Causes Court the only requirement is of formulating the points of determination and not to settle issues and as such is of no assistance to the defendants revisionists. Accordingly, the first argument raised by the counsel for the defendant revisionist has no merit and stands rejected. 9. Now coming to the second aspect of the matter relating to subtenancy. It is admitted to both the parties that the shop in dispute was let out to Anil Engineering Company and that the said company was the tenant. The above tenant Anil Engineering Company though described as a company is admittedly not a company but a firm. The only dispute which arises is whether the aforesaid firm at the time of letting out of the shop was a sole proprietorship firm or a partnership firm. 10. The Court below has recorded a finding that the evidence on record proves that the aforesaid company was a sole proprietorship firm of Khareshwar Bajpai and as such he alone was the tenant. The aforesaid finding was returned on the basis of the assessment records of the local authority which records Khareshwar Bajpai as the tenant against the shop in dispute. The rent receipt issued in the name of the company were also countersigned by Khareshwar Bajpai alone. The said Khareshwar Bajpai in the assessment case had filed his affidavit and has accepted himself to be the tenant since 1962. The rent receipt issued in the name of the company were also countersigned by Khareshwar Bajpai alone. The said Khareshwar Bajpai in the assessment case had filed his affidavit and has accepted himself to be the tenant since 1962. Thus, the sole proprietorship of Khareshwar Bajpai was recognized as the tenant to whom it was let out. 11. The aforesaid firm was reconstituted and in the reconstituted firm persons other than Khareshwar Bajpai were inducted as partners namely Radhey Shayam, Radha Raman, Anil, Arvind and Ganesh. There is no material or evidence on record that the above persons were partners in the aforesaid firm at the time of letting out the shop in dispute. Thus, there is definitely an induction of outside persons in the firm which is without the written permission of the landlord. 12. In Sundar Devi (Smt.) v. IIIrd Additional District Judge, Fatehpur and others, a learned Single Judge of this Court while dealing with a similar situation relating to creation of subtenancy on the reconstitution of the partnership firm held that admitting a partner in a reconstituted firm amounts to subtenancy. In the said case also the tenant had admitted two other persons without the written consent of the landlords as partners in his business and the Court held that the subtenancy stood proved. In view of above, the Court below has not erred in holding that with the induction of the aforesaid partners a subtenancy was created. 13. Lastly, it has been argued that the electricity charges would not form part of the rent. Ordinarily electricity charges are not part of the rent but in cases where there is a specific agreement that electricity charges would be treated as part of the rent and the same are paid alongwith the rent, it may form part of the rent. In the instant case, the evidence on record proves that the defendant revisionist have been paying electricity charges as per the sub-meter installed alongwith the rent. 14. In the instant case, the evidence on record proves that the defendant revisionist have been paying electricity charges as per the sub-meter installed alongwith the rent. 14. In Virendra Kumar Pandey v. Special Judge, Ghaziabad, 1997 JRJ (Alld) 176, it has been held that though the term rent has not been defined and electricity charges may not be part of it but it is settled that where such charges in respect of consumption of electrical energy are paid alongwith the rent by the tenant it means that he accepts the liability to pay electricity charges as part of the rent. Thus, payment of electricity charges alongwith the rent indicates that the tenant had accepted electricity charges as part of the rent. 15. Therefore, in the above facts and circumstances, non-payment of electricity charges has rightly been held to be a default in payment of rent on part of the defendant revisionist. 16. Sri Parekh, has argued that the question of payment of electricity charges as part of the rent does not arise inasmuch as the sub-meter was installed in the year 1989 and electricity was disconnected immediately thereafter whereupon the defendant revisionists took a new electricity connection in the year 1996 and during 1989 to 1996 electricity was not used by him. In this connection my attention was drawn to paragraph 34 of the written statement wherein the defendant revisionists have stated that the electricity was disconnected in the year 1995. The aforesaid statement in the written statement is an admission on part of the defendant revisionist that the electricity was supplied and consumed by them till 1995. 17. In view of above admission the oral statement to the effect that electricity was disconnected in 1989 cannot be accepted. Once the defendants revisionists were supplied electricity, they were liable to pay the electricity charges which they have accepted to be part of the rent. In the end it has been submitted that the induction of the new partners in the firm was before 1971 and therefore, the tenancy in their favour stood regularised by virtue of Section 14 of the Rent Act. 18. The argument is bereft merit inasmuch as Section 14 of the Rent Act envisages regularization of a tenancy which is without the order of settlement and not of subtenancy. 18. The argument is bereft merit inasmuch as Section 14 of the Rent Act envisages regularization of a tenancy which is without the order of settlement and not of subtenancy. In the case of Bhagwan Das and another v. Rent Control and Eviction Officer/S.D.O. Sambhal, Moradabad and others, (2006) 2 ARC 737 , it has been held that Section 14 of the Rent Act provides for regularisation of tenancy where the building has been let out without an order of allotment and is not applicable so as to regularise the subtenancy. In view of above facts and circumstances, none of the grounds on which the impugned judgment and order is being assailed are tenable in law. Accordingly, I find no merit in this revision and the same is accordingly dismissed. —————