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2016 DIGILAW 3356 (ALL)

Mamta Srivastava v. Vikas Tandon

2016-09-30

SUDHIR KUMAR SAXENA

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JUDGMENT Sudhir Kumar Saxena, J. 1. This revision under Section 25 of the Provincial Small Causes Courts Act is directed against the judgment and decree dated 13/01/2015 passed by Sri Om Prakash Agarwal, Judge, Small Cause Courts/District Judge, Shravasti allowing review application and decreeing SCC suit no. 1 of 2012 for ejectment and arrears of rent. 2. I have heard Sri Rajeiu Kumar Tripathi, learned counsel for the revisionist and Sri Mayank Sinha, learned counsel for the opposite party. 3. Briefly stated facts of case are that a small cause suit was filed by Sri Prakash Tandon, alleging that he was the landlord of the building to which U.P. Act no. 13 of 1972 (hereinafter referred to as 'the Act') is not applicable. Same was let out to defendants @ Rs. 1,200/- per month but defendants did not pay any rent after 14/09/2005 and till March 2012 a sum of Rs. 97,200/- was due whereupon notice was given terminating the tenancy which was served upon defendants on 18/04/2012. Neither tenant vacated the shop nor paid arrears of rent, hence the suit. 4. Defendant no. 1 in the written statement filed on 29/11/2012 averred that provisions of U.P. Act no. 13 of 1972 were applicable. Rate of rent was Rs. 600/- per month as after death of her husband, rate of rent was reduced from Rs. 1,200/- to Rs. 600/- per month, no receipt was issued by the landlord and she had paid entire rent up to August, 2012. In the replication, it was stated that house and shop were situated in village- Gilaula, which is neither Municipal Board nor Nagar Panchayat, as such, Act was not applicable. 5. Following points of determination were framed by the trial court:- ^^1- oknh dh vksj ls izfroknhx.k fdrus :i;s ekgokj dh nj ls fdjk;snkj gS eq0 1200 :i;s ;k eq0 600 :i;s\ 2- D;k izfroknhx.k ij fdjk;s dh dksbZ /kujkf'k cdk;k pyh vk jgh gS tks fd izfroknhx.k us vnk ugha dh gS\ 3- D;k izfroknhx.k ij fof/kd uksfVl dh rkehyh gqbZ gS\ 4- D;k iz'uxr laifRr ij ;w0ih0 ,DV uaŒ 13 lu~ 1972 ds izkfo/kku ykxw gksrs gSa\ 5- oknh fdlh vuqrks"k dks ikus dk vf/kdkjh gS\** 6. Trial court came to the conclusion that landlord has been issuing receipts even after death of husband of defendant and rate of rent was Rs. 1,200/- per month. Trial court came to the conclusion that landlord has been issuing receipts even after death of husband of defendant and rate of rent was Rs. 1,200/- per month. Trial court also came to the conclusion that defendant has not paid rent after June, 2005. It held that plaintiff has failed to prove the notice. Consequently, court dismissed the suit on 26/09/2014. 7. It appears that an application for review was filed. It was found by the reviewing court that notice was validly proved, as such, the decision given on issue no. 3 was wrong and suffers from error, which is apparent from the face of record. Consequently, review application was allowed on 13/01/2015 and defendant was directed to vacate the premises within thirty days. Suit for arrears of rent was also decreed along with 6 per cent interest. This very order has been challenged herein. 8. Submission of Sri Rajeiu Kumar Tripathi, learned counsel for the revisionist is that learned Small Cause Judge has no power to review the judgment as there is no provision for review under The Provincial Small Cause Courts Act, and Order 50 of the C.P.C. clearly bars review. Order 50 of C.P.C. is being reproduced below: - "1. Provincial Small Cause Courts- The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), [or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], [or to Courts in [any part of India to which the said Act does not extend] exercising a corresponding jurisdiction] that is to say- (a) so much of this schedule as relates to - (i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits ; (ii) the execution of decrees against immovable property or the interest of a partner in partnership property; (iii) the settlement of issues; and (b) the following rules and orders : - Order II, Rule 1 (frame of suit) Order X, Rule 3 (record of examination of parties); Order XV, except so much of Rule 4 as provides for the pronouncement at once of judgment; Order XVIII, Rules 5 to 12 (evidence); Orders XLI to XLV (appeals); Order XLVII, Rules 2, 3, 5, 6, 7 (review); Order LI" 9. This provision does not make a mention of Order 47 Rule (1), which says that where appeal is not provided, order can be reviewed on the grounds enumerated therein. Order 47 Rule (1) does apply to the small cause courts created under the Provincial Small Cause Courts Act as such, it cannot be said that small cause court has no jurisdiction to review the earlier order. No contrary decision has been cited by revisionist's counsel. 10. No new document has been filed. Learned Judge has not looked into the affidavit which resulted in dismissal of suit. It is not contended that affidavit A 43 was not available (although there is no reference to it albeit court discussed papers filed by the parties). 11. In these circumstances, giving decision without looking into the affidavit, was an error apparent on the face of the record. Consequently, order has been rightly reviewed. U.P. Act no. 13 of 1972 is not applicable. Rate of rent has been rightly determined by the court. No other point has been canvassed. Consequently, there is no merit in the revision and deserves to be dismissed but for the uncertain terms of decree. 12. Operative portion of the decree is not specific and clear. The order that due amount will be paid by the defendant (wazifsuda) is an uncertain term. Court was supposed to end the uncertainty. Court should have specifically mentioned the amount, which was to be paid by the defendant. Defendant should be able to know as to what is the exact amount, which she is required to pay. Decree should not be vague or uncertain and such matters cannot be left to be decided by executing court. Decree has been defined under Section 2 (2) of Code of Civil Procedure 1908, as under: - (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default." (emphasis supplied) 13. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default." (emphasis supplied) 13. Hon'ble Supreme Court in the case of Balraj Taneja and Anr. vs. Sunil Madan and Anr. [ AIR 1999 SC 3381 ] in para 44 deprecated the practice of passing the judgment by using words, "suit decreed' or "suit dismissed". Relevant part of the judgment is being reproduced below : - " A Judge cannot merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. This infirmity in the present judgment is glaring and for that reason also the judgment cannot be sustained." 14. In the case of State of Bihar and Ors. vs. Secretariat Press Ministerial Staff Union and Ors. [ AIR 2002 SC 2145 ], Court was considering the words "consequential benefits for which they are eligible in accordance with rules". Relevant paragraph is being reproduced below : - "That apart, the relief granted by the High Court is too wide and general. Even if the High Court had come to the conclusion that the members of the petitioner-Unions and other impleaded staff were working in the attached offices of the Secretariat, the High Court should have specifically addressed itself to the question as to the specific benefits, if any they will be entitled to instead of giving a sweeping direction to the Government to grant "consequential benefits for which they are eligible in accordance with rules". Such a direction in our view, would lead to uncertainty and difficulties in implementation. Therefore, such a general direction should not have been granted by the High Court. We are, therefore, of the view that the matter has to be remitted to the High Court for fresh consideration in the light of the observations made above." 15. Reference can also be made to para 18 of the judgment of this Court in the case of Bans Raj Singh and Others vs. Krishna Chandra and Ors. [AIR 1981 Allahabad 280]. Para 18 of the judgment is being reproduced hereinbelow : - "18. Reference can also be made to para 18 of the judgment of this Court in the case of Bans Raj Singh and Others vs. Krishna Chandra and Ors. [AIR 1981 Allahabad 280]. Para 18 of the judgment is being reproduced hereinbelow : - "18. On examining Order XX, Rule 12 Civil P.C. and the case law referred to above I am of the opinion that the trial Court while declaring the right of mesne profits in favour of the plaintiff can direct for an inquiry in the matter and is required to pass final decree as contemplated under Order XX, Ruie 12 Civil P.C. and it has got no jurisdiction to direct the inquiry regarding the amount of mesne profits to be determined by the executing Court. Such a direction to the execution Court is without jurisdiction and is nullity." 16. Before parting, it is necessary to point out that small cause suit was dismissed by Judge, small cause courts/District Judge, Shravasti but while deciding the review application, correct nomenclature has not been mentioned. District Judge, Shravasti cannot review the order passed by Judge, small cause courts, although he may be the same person. A District Judge cannot decide a sessions trial, claim petition or a suit for eviction of tenant. He can do this as Sessions Judge, Motor Accident Claims Tribunal or Judge, Small Cause Courts, as the case may be, although, he may be the same person. 17. Such a course was not appreciated by this Court as back as in the year 2002. Relevant part of the observation made by Hon'ble A.K. Yog, J. in Second Appeal no. 541 of 2002 (Sachidanand Pandey vs. Mahendra Puri and Ors.) is quoted hereinbelow: - " From a Presiding Judicial Officer this court expects that correct designation will be indicated and shown while signing judgment and the decree. This court has noticed that judicial officers of the subordinate judiciary are indicating wrong designation and correct description of court while deciding a case. It is misleading and strictly speaking the entire judgment and decree on ths score become non est." 18. High Court has also issued a circular no. 19/2002 dated 20.06.2002 containing above observation. 19. Since notice was basis of suit, court should have considered and discussed at least the material which had bearing on the issue in question. It is misleading and strictly speaking the entire judgment and decree on ths score become non est." 18. High Court has also issued a circular no. 19/2002 dated 20.06.2002 containing above observation. 19. Since notice was basis of suit, court should have considered and discussed at least the material which had bearing on the issue in question. Deciding suit ignoring an important piece of evidence shows negligent and cavalier approach on the part of an Officer who is holding senior-most judicial post in the District. Deciding review in more cavalier manner ignoring abovementioned circular compounds the problem. 20. Furthermore, District Judge happens to be one of the Senior-most person in the hierarchy of district judiciary and it is not expected of him to decide the case ignoring the important piece of document, especially when this ignorance has resulted in the dismissal of suit. This was a serious lapse on the part of Sri Om Prakash Agarwal, the District Judge. He has not shown due care in deciding the case. Such a gross negligence isnot expected from a District Judge. Decreeing suit on review application prima facie raises suspicion on competence/conduct of the Officer. Copy of the judgment will be sent to Hon'ble Administrative Judge of the Judgeship for information and to the Officer concerned for guidance. 21. In view of the discussions made above, this revision is partly allowed. Findings recorded by trial court on merits are confirmed. Operative portion of decree dated 13/01/2015 pertaining to arrears of rent and mesne profit/damages is set aside. Matter is remanded to Judge, small cause court/District Judge, Shrawasti for passing the decree in accordance with law and in the light of discussion made in the judgment. Parties will appear before trial court on 26/10/2015.