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2016 DIGILAW 3513 (ALL)

Harihar Nath Mishra v. Addl. District Judge

2016-10-20

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. -- The dispute is about premises of house no. K-54/58 Mohalla Dara Nagar Ward-Kotwali, Varanasi. 2. One Panna Lal, predecessor in interest of the contesting respondents no. 2 to 12 was the owner and landlord of the said house who had let it out to the father in law of the petitioner Harihar Nath Mishra, son of Badri Narain Mishra. 3. Salik Ram and Girdhari Lal, the two sons of Panna Lal after his death sent a notice dated 22.4.1985 of demand of rent and determination of tenancy to the petitioner alleging that he had not paid rent since 1.10.1980 till the date of notice therefore rent of 54 months @ Rs. 30/- amounting to Rs. 1,620/- and water tax of Rs. 902.70 paise, total amounting to Rs. 2,522.70 paise is due and payable. 4. The notice was received by the petitioner on 23.5.1985 and it was replied on 28.5.1985 stating that he is not in default. The owner and landlord had permitted him to get the water line repaired and to adjust the said expenses in the rent. He had spent Rs. 1,756.40 paise in repairing the water line and therefore the rent as claimed stands adjusted against it. 5. The aforesaid Salik Ram and Girdhari Lal on the basis of the aforesaid notice instituted SCC Suit No. 298 of 1985 for arrears of rent and eviction against the petitioner not only on the ground of default in payment of rent but also on the ground of material alteration. During pendency of the suit both the above landlords Salik Ram and Girdhari Lal died and were substituted by their heirs, the present contesting respondents. 6. Mukerji, one of the sons of Salik Ram appeared as the only witness on behalf of the plaintiffs as PW-1. The petitioner himself appeared as DW-1 and one Tilak Dhari/Pancham Seth as DW-2. 7. The suit on consideration of the evidence on record was dismissed by the Small Causes Court vide judgment and order dated 7.3.2006. 8. The Court held that there was no default on part of the petitioner in paying rent as the amount claimed to be due stands adjusted against the expenses for the repair of the water line. It was permitted to be repaired by the owner/landlord with the specific condition that the expenses thereof would be adjusted in the rent. 8. The Court held that there was no default on part of the petitioner in paying rent as the amount claimed to be due stands adjusted against the expenses for the repair of the water line. It was permitted to be repaired by the owner/landlord with the specific condition that the expenses thereof would be adjusted in the rent. It was also held that no material alteration was done by the petitioner. 9. Aggrieved by the aforesaid judgment and order, the contesting respondents preferred a SCC Revision No. 16 of 2006. The said revision was allowed vide judgment and order dated 14.7.2008 and the revisional court after setting aside the judgment and order of the court of first instance decreed the suit holding the petitioner to be a defaulter as there was no permission from the landlords to repair the water line and to adjust the expenses incurred in repairs thereof from the rent. 10. The judgment and order of the revisional court was challenged by the petitioner by filing writ petition no. 45898 of 2008. The writ petition was decided on 11.9.2008. The matter was remanded to the revisional court for reconsideration and decision of issue no.1 afresh which was in respect of default, if any, committed by the petitioner in payment of rent and all other issues were set at rest. 11. It is in pursuance of the above limited remand that the revisional court by the impugned judgment and order dated 29.11.2008 again held the petitioner to be a defaulter in payment of rent and consequently decreed the suit for his eviction. 12. Thus, aggrieved by the decree of his eviction on the ground of default in payment of rent the petitioner has invoked both the extra-ordinary and supervisory jurisdiction of the High Court. 13. I have heard Sri P.K. Jain, Senior counsel assisted by Sri Vijay Kumar Rai, learned counsel for the petitioner and Sri Ajai Kumar Singh, learned counsel for the contesting respondents. 14. The thrust of the argument of Sri Jain was that previously this Court had remanded the matter as it was of the opinion that the revisional court is not possessed of jurisdiction to reappraise the evidence and to record its own finding on the point of default. 14. The thrust of the argument of Sri Jain was that previously this Court had remanded the matter as it was of the opinion that the revisional court is not possessed of jurisdiction to reappraise the evidence and to record its own finding on the point of default. The revisional court has committed the same mistake and has recorded the finding of default in payment of rent on the reappraisal of the evidence. If the revisional court was not satisfied by the finding of the court of first instance and was of the opinion that there was any perversity in the findings of the trial court, it could at best had remanded the matter instead of substituting its own finding. 15. Sri Ajay Kumar Singh on the other hand contends that there is no reappraisal of the evidence by the revisional court rather it has held the petitioner to be defaulter on a legal ground that there was no agreement/permission from the landlord for repairing the waterline and as such the amount spent by the petitioner thereof was not liable to any adjustment. 16. In the light of the respective submissions, the moot question which arises for consideration is whether there was a valid permission by the owner/landlord for the repairs of the water line and to adjust the expenses thereof in the rent and the findings in this regard returned by the revisional court are based on reappraisal of evidence and are without jurisdiction. 17. The court of first instance in dismissing the suit had held that there was an oral agreement between the petitioner and the landlords that the rent was to be adjusted in the expenses incurred in the repair of the water line. Therefore, the petitioner is not a defaulter in payment of rent. In recording the said finding the court held that PW-1 Mukurji who had denied the defence allegations of the contesting respondents had not specifically stated that the petitioner had not got the water line repaired or connection installed with their consent which means that there was a settlement permitting repair of the water line and adjustment of its expenses towards rent. The court further holds that the permission to repair the water line was granted by Smt. Rama Devi, the mother of the original plaintiffs Salik Ram and Girdhari Lal. The court further holds that the permission to repair the water line was granted by Smt. Rama Devi, the mother of the original plaintiffs Salik Ram and Girdhari Lal. The fact whether she had granted such a permission could have been denied by Smt. Rama Devi or the Salik Ram and Girdhari Lal only. The settlement as aforesaid was also proved by the oral evidence of DW-2 Pancham Seth. 18. The revisional court on the other hand relied upon the agreement of tenancy dated 8.7.1972 which was filed by none other than the petitioner himself. The said tenancy agreement was entered into between the petitioner and the Salik Ram & Girdhari Lal on the other hand. It held that Salik Ram and Girdhari Lal were the original owners and landlords of the premises in dispute who have let it out to the petitioner under the aforesaid agreement. There is no permission given by them to the petitioner to get the waterline repaired and to adjust the expenses towards rent. The permission alleged to have been granted by Smt. Rama Devi, the mother of the aforesaid Salik Ram and Girdhari Lal has no legal sanctity as it was not on behalf of the aforesaid two landlords with whom the petitioner had entered into a tenancy agreement. 19. In this regard, Sri P.K. Jain had submitted that Smt. Rama Devi was very much the owner and as such the permission granted by her was valid and the petitioner can not be non-suited on the aforesaid ground. 20. The petitioner in his reply dated 28.5.1985 to the notice had stated that he had spent Rs. 1,756.40 paise in the repair of the water line. Since it was damaged, permission was granted to him to get it repaired and to adjust the expenses towards the rent. In his reply he has not stated as to who had granted the permission. He had not mentioned that he was granted permission by Smt. Rama Devi, the mother of Salik Ram and Girdhari Lal. It was only subsequently that he pleaded about the grant of permission by Smt. Rama Devi. This apparently appears to be an after thought. He had accepted Salik Ram and Girdhari Lal to be the owners and landlords which fact stands proved by the tenancy agreement adduced by him in evidence. It was only subsequently that he pleaded about the grant of permission by Smt. Rama Devi. This apparently appears to be an after thought. He had accepted Salik Ram and Girdhari Lal to be the owners and landlords which fact stands proved by the tenancy agreement adduced by him in evidence. Once the relationship of landlord and tenant was only between the aforesaid Salik Ram and Girdhari Lal at one hand and the petitioner on the other, Smt. Ram Devi does not come into picture. Therefore, any permission granted by her or any oral agreement of the petitioner with her for the repair of water line and for adjustment of expenses thereof in the rent is meaningless and would not adversely affect the rights of the landlords. 21. The revisional court in recording finding with regard to default as such has only held that the settlement as pleaded by the petitioner is of no avail when the tenancy agreement has been filed by him proves that the relationship of landlord and tenant was between Salik Ram/Girdhari Lal and the petitioner. In these circumstances, the revisional court without reappraisal of the evidence has decided the issue of default in payment of rent on the legal side. 22. In view of the above, the petitioner was not entitle to adjustment of any expenses incurred by him in the repair of water line and as such he is certainly a defaulter. The revisional court therefore has not committed any error of jurisdiction in decreeing the suit. The petition as such has no merit. 23. The petitioner however under the facts and circumstances of the case is allowed time upto 31st December 2016 to vacate the premises in dispute provided he gives an undertaking to this effect on affidavit before the court below that he will vacate and handover its peaceful possession to the contesting respondents on or before the above date and shall simultaneously clear of all the dues under the decree including the amount for its use and occupation till the date of vacating the premises. 24. The other petition is by the tenant for the stay and setting aside the proceedings of Execution Case No. 6 of 2016 (Mukurji and others Vs. Harihar Nath Mishra and others) . 25. Since the aforesaid petition has been dismissed, no ground survives for maintaining the same. 26. 24. The other petition is by the tenant for the stay and setting aside the proceedings of Execution Case No. 6 of 2016 (Mukurji and others Vs. Harihar Nath Mishra and others) . 25. Since the aforesaid petition has been dismissed, no ground survives for maintaining the same. 26. In view of the above, both the petitions are dismissed with the liberty as aforesaid.