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2018 DIGILAW 1534 (ALL)

Narendra Kumar Dutt v. Sardar Kulvindar Singh

2018-07-11

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. 1. Heard learned counsel for the petitioner and Sri Hari Bans Singh, learned counsel appearing for the plaintiff-respondent. 2. Present petition has been filed for setting aside the order dated 1.5.2017 passed by the Judge Small Causes Court, Kanpur Nagar in SCC Suit No. 17 of 2017, Sardar Kulvinder Singh and Another vs. Sri Narendra Kumar Dutt as well as the order dated 12.4.2018 passed by the Additional District Judge, Court No. 15, Kanpur Nagar in SCC Revision No. 77 of 2017, Narendra Kumar Dutt vs. Sardar Kulvinder Singh and Another. 3. After giving notice dated 4.8.2006 under Section 106 of the Transfer of Property Act the tenancy of the defendant-petitioner was terminated in respect of shop existing in property no. 117/N/55 Kakadeo, Kanpur Nagar. It was alleged that the rate of rent was Rs. 2,565/- and therefore, the provisions of the Act 13 of 1972 are not applicable. 4. Initially, one rent agreement was executed between Sardar Surendra Singh and the petitioner herein Narendra Kumar Dutt. Subsequently, the property came in ownership and possession of the present plaintiff-respondents. Notice was given to the defendant- petitioner and was informed for payment of rent but in spite of notice he did not pay the rent and tenancy was terminated. The release application was allowed on the ground that notice was admittedly served on the defendant on 8.8.2006 and the same was replied by him vide reply dated 28.8.2006. The petitioner, however, disputed the allegations made in the plaint and also disputed the ownership of the plaintiff-respondents. In reply to the notice the defendant-petitioner did not dispute the tenancy of the aforesaid shop and also did not dispute the rate of rent, however, he submitted that he has lost the copy of the rent agreement and therefore, plaintiff be directed to produce the same. In support of his case, the plaintiffs filed various document including original notice and also sale deed paper no. 41Ga/1/16, copy of the freehold paper no. 62Ga/1226. The plaintiff no. 1 was also examined as PW-1. The defendant filed copy of the agreement dated 1.9.1999 and certain tender receipts and was also examined as DW-1. 5. Five issues were framed. On issue no. 1 it was found that there was relationship between landlord and tenant. On issue no. 41Ga/1/16, copy of the freehold paper no. 62Ga/1226. The plaintiff no. 1 was also examined as PW-1. The defendant filed copy of the agreement dated 1.9.1999 and certain tender receipts and was also examined as DW-1. 5. Five issues were framed. On issue no. 1 it was found that there was relationship between landlord and tenant. On issue no. 2 it was found that the provisions of the Act 13 of 1972 are not applicable and on issue no. 3 it was found that the notice was duly served and the tenancy was duly terminated. While dealing with issue no. 3 various documents filed by the plaintiffs including sale deed, gift deed and freehold deed were also considered. The benefit of Section 20 (4) of the Act 13 of 1972 was denied to the defendant as the Act was not applicable and the relief was granted in favour of the plaintiff. The petitioner herein filed an appeal, which was dismissed and concurrent finding was recorded regarding landlordship of the plaintiff by considering the sale deed, freehold deed and gift deed. 6. Submission of learned counsel for the petitioner is that the notice dated 4.8.2006 is a defective notice and it is not shown as to how the plaintiff-respondents are the landlord of the property in dispute. It was further submitted that the agreement was executed with Surendra Singh and notice of termination was given by the present plaintiffs and thus, it was not valid in law. It was also stated that the defendant-petitioner has never paid rent to the plaintiffs and as such, the plaintiffs are not the landlord and the SCC suit instituted by them was not maintainable. 7. Per contra, Sri Hari Bans Singh, learned counsel for the respondents has submitted that cogent documentary evidence was produced before the Courts below that the plaintiff-respondents are the landlord of the property in question and therefore, no interference is warranted in the concurrent findings recorded by the Courts below. 8. I have considered the rival submissions and perused the record. 9. On perusal of the record, I find that the rate of rent being Rs. 2,565/- per month is not in dispute. Accordingly, UP Act 13 of 1972 would not be applicable in the present case. 8. I have considered the rival submissions and perused the record. 9. On perusal of the record, I find that the rate of rent being Rs. 2,565/- per month is not in dispute. Accordingly, UP Act 13 of 1972 would not be applicable in the present case. Insofar as the service of notice is concerned, the same was duly served on the defendant and was also replied by the defendant (petitioner herein) wherein it was alleged that he is tenant of the shop in question, however, he had rent agreement with Sardar Surendra Singh but he has lost the copy of the rent agreement. There is no doubt that the ownership is disputed by the defendant-petitioner, however the petitioner is admittedly tenant in the shop in question and rent is above Rs. 2,000/- and the service of notice is also not in dispute. In the plaint categorical assertions have been made and it has been explained in detail as to how the plaintiffs have become the owner. Plaintiff no. 1 is son of Sardar Surendra Singh and plaintiff no. 2 is grand mother-in-law of plaintiff no. 2. Specific assertion regarding attornment of tenancy of the defendant has been made. The ownership of the property in question was received by the plaintiff-respondents by gift and in support of the same certified copy of the sale deed, certified copy of the freehold deed as well as certified copy of the gift deed were also produced before the Courts below and a reading whereof would indicate that the findings recorded by the Courts below are not perverse in nature so as to attract interference by this Court under Article 227 of the Constitution of India and there is no jurisdictional error in the same. 10. All such findings have been appreciated on the basis of documentary and oral evidence on record by both the Courts below and are concurrent in nature and therefore, I do not find any legal infirmity in the orders impugned herein. 11. A reference may 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. 11. A reference may 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. 12. In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below in the present petition and the same is accordingly dismissed. 13. However, learned counsel for the petitioner has submitted that an amount of Rs. 1,65,000/- was given as security to Sardar Surendra Singh, father of the plaintiff- respondent no. 1 and this fact has been admitted by him. It is also not in dispute that the aforesaid amount has not been returned. 14. It may also be noted that regarding return of amount of security of Rs. 1,65,000/- Sri Hari Bans Singh, learned counsel for the respondents was asked to take instructions from his client. On instructions so received on phone, he stated that the plaintiff-respondents shall return the amount to the petitioner after adjustment of the amount, if any, due. 15. Under such circumstances, it would be appropriate that in case any rent is still due to be paid to the landlord, after adjustment of the same the balance amount shall be returned by the landlord to the tenant-petitioner herein Narendra Kumar Dutt within a period of two months from today. 16. In case there is any dispute about the return of the amount, if the need so arise, either of the parties are at liberty to file an application before the Court below with their calculation and issue regarding amount shall be settled by the Court below as expeditiously as possible. 17. At this stage, learned counsel for the petitioner prays that at least one year time may be granted to vacate the shop in question. The same is being opposed by the learned counsel for the respondents. 18. 17. At this stage, learned counsel for the petitioner prays that at least one year time may be granted to vacate the shop in question. The same is being opposed by the learned counsel for the respondents. 18. 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-petitioner shall handover the peaceful possession of the shop in question to the landlord-respondents on or before 30.4.2019. (2) The tenant-petitioner 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) Payment of decretal amount or refund of balance security amount shall be governed by the observations already made above. (4) The tenant-petitioner shall pay damages @ Rs. 3,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.4.2019 or till the date he vacates the shop in question, whichever is earlier and the landlord is at liberty to withdraw the said amount. (5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the shop in dispute. (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the shop 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 shop in question is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. 19. There shall be no order as to costs.