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2015 DIGILAW 740 (ALL)

BRAHAM SINGH v. ADDITIONAL DISTRICT JUDGE

2015-04-08

SUNEET KUMAR

body2015
JUDGMENT Hon’ble Suneet Kumar, J.—Petitioner is a tenant in a portion of the building situated at Mohalla Kanoongoyan, Near Hathiwala Mandir Mandir, Moradabad. The respondent/landlord after determination of tenancy by notice dated 13.12.2007 instituted a suit being Suit No. 2 of 2009 before the Small Causes Court at Moradabad for eviction and on having defaulted in payment of rent since 2005. The parties contested the suit. The petitioner did not dispute that he is the tenant of the premises in question of which the respondent is the landlord. 2. The petitioner contended that the rent for the period 1 March 2005 to 31 July 2013 has been deposited in the Court unconditionally, accordingly, petitioner was entitled to the protection under sub-clause (4) of Section 20 of the U.P. Act No. 13 of 1972, therefore, is not liable for eviction on the ground of default. The Court of first instance decreed the suit on 21 October 2014 holding the petitioner to be defaulter in payment of rent for a period of more than 4 months. Further, the petitioner had already acquired a house in the name of his wife in Buddhi Vihar, Moradabad which is within the municipal limits of Moradabad, the defence under Section 20(4) of the Act to avoid the decree of eviction would not be available to the petitioner. The judgment and order of the Trial Court has been affirmed by judgment and order dated 2 March 2015 passed by the Revisional Court. 3. The petitioner has impugned both the above judgment and orders by means of this writ petition. 4. The learned counsel for the petitioner has fairly accepted that the petitioner has acquired a house in the name of his wife within the city and, therefore, as per the proviso to sub-section (4) of Section 20 of the Act, the petitioner cannot avoid the decree of eviction, if passed, on the ground of default in payment of rent, even though he may have already deposited the amount of rent and damages together with interest on or before the first date of hearing of the suit. 5. In view of the provisions of Section 20(2) of the Act even if one of the grounds provided therein for eviction of tenant is proved, the tenant would be liable for eviction unless prevented by any law. Section 20(2)(a) of the Act reads as under: “20 ......................... (1) ......................... 5. In view of the provisions of Section 20(2) of the Act even if one of the grounds provided therein for eviction of tenant is proved, the tenant would be liable for eviction unless prevented by any law. Section 20(2)(a) of the Act reads as under: “20 ......................... (1) ......................... (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. The only argument pressed on behalf of the petitioner is that the tenancy of the petitioner was not validly determined by notice dated 13 December 2007. 6. In the instant case, the Courts below have recorded that the tenancy of the petitioner was validly determined by notice dated 13 December 2007, which was returned on 18 December 2007 with an endorsement “refused to accept”. The Trial Court on considering the evidence, recorded a finding that the notice was duly served. The petitioner in cross-examination deposed that he is a lawyer practicing in the High Court at Allahabad and the notice was not served at Chamber No. 191 which has been allotted to the petitioner, but the Court below noted that the petitioner was unable to explain that in the affidavit filed in support of the written statement, the petitioner had mentioned Chamber No. 160 as his address at the High Court, thus, holding that the petitioner had made a false statement before the Court, accordingly, it was held that notice was duly served upon the petitioner. 7. The petitioner was a defaulter as the petitioner did not deposit the payment of rent, accordingly by a legal notice the tenancy was terminated. Before the Revisional Court only two points was pressed by the petitioner: “(i) as to whether the defendant/revisionist had been under arrears of rent causing default in payment of rent and being the tenant as hanging over? (ii) as to whether the burden of proof of payment of rent rested upon the shoulders of tenant-defendant or upon the shoulders of landlord-plaintiff?” 8. (ii) as to whether the burden of proof of payment of rent rested upon the shoulders of tenant-defendant or upon the shoulders of landlord-plaintiff?” 8. The Revisional Court concurred with the finding of the Trial Court that the petitioner had already acquired a residential property in Buddhi Vihar, Moradabad in the name of his wife, further, the petitioner had made a false statement before the Court regarding service of notice at the address provided by the petitioner and had failed to prove that the petitioner was making payment of rent. Petitioner was unable to give the details of the money order and the date on which the rent was paid. 9. The Courts below have returned concurrent finding of fact that the notice was duly served upon the petitioner but the petitioner refused to accept the notice on a false plea that it was sent on a wrong address. The petitioner is not disputing that the notice was sent to the address mentioned in the affidavit filed in support of the written statement. Regarding the payment of rent to the respondent by money order, the petitioner failed to produce any postal receipts of the money orders nor he confirmed any date, month or year of sending money orders. The petitioner is a practicing lawyer at Allahabad which is not being disputed but is retaining the rented premises at Moradabad. It is not disputed that the petitioner has already acquired a premises in Moradabad in the name of his wife. 10. The petition is reported to have been filed under Article 226 of the Constitution, which is not maintainable in view of the decision rendered in Radhey Shyam and another v. Chhabi Nath and others (Civil Appeal No. 2548 of 2009) decided on 26th February, 2015 however, the learned counsel for the petitioner would submit that the petition has been filed under Article 227 of the Constitution as is reflected from the pleadings and the prayer. The scope for entertaining a petition under Article 227 is limited and the Hon’ble Supreme Court in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , culled out the following principles that should be considered while deciding a petition under Article 227: 62. The scope for entertaining a petition under Article 227 is limited and the Hon’ble Supreme Court in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , culled out the following principles that should be considered while deciding a petition under Article 227: 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court’s jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, ‘within the bounds of their authority’. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) ................................. (j) ................................. (k) ................................ (l) ................................. (m) ............................... (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. 11. In the facts and circumstances of the case in hand, I am of the opinion that the Courts below have not erred in law or committed any jurisdictional error in holding that the petitioner defaulted in payment of rent and had failed to pay the arrears, accordingly, the petitioner is not entitled to avoid decree of eviction on the ground of default in payment of rent under Section 20(4) of the Act, as admittedly the petitioner had acquired another house in the city itself. There is no flaw in decreeing the suit on the ground of default. 12. The writ petition is, accordingly, dismissed both on merits and maintainability. 13. No order as to costs. ———————