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Allahabad High Court · body

2018 DIGILAW 1519 (ALL)

Ashok Kumar v. Saleem

2018-07-09

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. 1. Heard learned counsel for the petitioners and Sri Atiq Ahmad Khan, learned counsel appearing for the caveator respondents. 2. Present petition has been filed seeking setting aside of the impugned order dated 21.9.2015 passed by the court of Khafifa Judge, Bulandshahr in Small Causes Case No. 38 of 2010, Smt. Saedan and Another vs. Digambar Singh and the impugned order dated 8.5.2018 passed by the District Judge, Bulandshahr in Small Causes Revision No. 23 of 2015, Digambar Singh vs. Smt. Saedan and Another. 3. A SCC suit for rent and eviction was filed on the ground that the tenant has not paid rent from July, 2007 onwards and a notice dated 15.4.2010 was issued to the petitioner which was duly served on the tenant and the notice is validly served. Even after service of notice no rent was paid and as such the suit was filed claiming rent from 17.9.2007 to 16.9.2009 and for eviction of the shop. The trial court recorded a finding that since notice was served; the tenant is not entitled for the benefit of Section 20 (4) of Act 13 of 1972; the defendant has committed default since July, 2007; and no deposit was made during pendency of the case and thus, there is violation of provision of Order 15 Rule 5 (2) CPC. A revision was filed by the tenant wherein the finding recorded regarding applicability of the Act was reversed and it was found that the Act is not applicable. The service of notice was found to be sufficient. In so far as the default is concerned the finding of the court below was upheld and it was held that the tenant has committed default for the period from August, 2007 to July, 2008 and he has not placed on record any evidence by way of receipts or money order and therefore, the revision was dismissed. 4. Challenging the aforesaid findings, submission of learned counsel for the petitioners is that the petitioners have paid Rs. 10,000/- as security. Learned counsel for the petitioners sought to draw attention of this Court that the receipts of deposit were filed before the courts below and therefore, it is incorrect to assert that the petitioners have committed default. 4. Challenging the aforesaid findings, submission of learned counsel for the petitioners is that the petitioners have paid Rs. 10,000/- as security. Learned counsel for the petitioners sought to draw attention of this Court that the receipts of deposit were filed before the courts below and therefore, it is incorrect to assert that the petitioners have committed default. He further submitted that the rent was sent by money order, which was duly received and therefore, the trial court has committed a mistake of law in allowing the suit and the revision was also illegally dismissed. 5. Per-contra, Sri Atiq Ahmad Khan, learned counsel appearing for the respondent has supported the impugned order and has submitted that concurrent finding regarding service of notice and default in payment of rent has been recorded by both the courts below, hence no interference is warranted. 6. I have considered the rival submissions and have perused the record. 7. On perusal of record, I find that the trial court has given dates of receipts filed by the tenant, however, the aforesaid receipts do not cover the period of default from August, 2007 to July, 2008. The receipts are of previous period and tender receipts are of subsequent period. The money order is also for subsequent period covering rent from January, February, March, April, 2009 and from 1.8.2008 to 1.5.2009. On the basis of documentary evidence it has been categorically recorded by the courts below that from August, 2007 to July, 2008 there is no evidence whatsoever on record to prove that the petitioners have not committed default in payment of rent from August, 2007 to July, 2008. The service of notice is not in dispute. As such, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. 8. A reference may also be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh, (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited. 9. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited. 9. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed. 10. At this stage, learned counsel for the petitioner prays that some time may be granted to vacate the premises. 11. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.1.2019. (2) The tenant-petitioners shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order. (3) The tenant-petitioners shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order. (4) The tenant-petitioners shall pay damages @ Rs. 1000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount. (5) In the undertaking the tenant-petitioners shall also state that they will not create any interest in favour of the third party in the premises in dispute. (6) Subject to filing of the said undertaking, the tenant-petitioners shall not be evicted from the premises in question till the aforesaid period. (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the premises is not vacated as per the undertaking given by the petitioners, they shall also be liable for contempt. (9) There shall be no order as to costs.