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Allahabad High Court · body

2018 DIGILAW 1877 (ALL)

Shaeel Ahmad Alias Sheelu v. Geeta Sharma

2018-08-28

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard learned counsel for the tenant-petitioner and Sri Shrey Sharma, learned counsel for the landlady-respondents and perused the record. 2. Present petition has been filed for setting aside the judgment and order dated 26.5.2018 passed by the District Judge in SCC Revision No. 4 of 2017 and the judgment and order dated 10.8.2017 passed by the Judge Small Causes Court in SCC Suit No. 18 of 2009. 3. SSC suit was filed by the landlady-plaintiff (respondent herein) on the ground that the rent of the disputed shop in question is Rs. 1,000/- per month and since the construction is a new construction, therefore, the provisions of UP Act 13 of 1972 are not applicable and a valid notice was given but the rent was not paid by the tenant-defendant (petitioner herein), therefore, the landlady-plaintiff is entitled for rent and eviction of the tenant. The suit was defended on the ground that the tenant is not in arrears of rent and after receipt of notice, the amount due was deposited under Section 30 of the Act and therefore, there is no default in payment of rent. The trial Court framed five issues. On issue no. 1 it was found that the provisions of UP Act 13 of 1972 are not applicable. On issue no. 2 it was found that the rent is payable at the rate of Rs. 500/-per month and not at the rate of Rs. 1,000/-per month as claimed by the landlord. Issue no. 3 regarding misjoinder of parties was decided in favour of the landlord. Issue no. 4 was regarding default in rent and it was found that the tenant is not entitled for benefit of Section 20(4) of the Act. Ultimately the issue no. 5 regarding other reliefs was decided in favour of the landlord. Revision against the same filed by the tenant was dismissed by upholding the aforesaid findings. 4. Submission of the learned counsel for the tenant-petitioner is that the tenant is not in arrears of rent and as such, notice itself was invalid. Ultimately the issue no. 5 regarding other reliefs was decided in favour of the landlord. Revision against the same filed by the tenant was dismissed by upholding the aforesaid findings. 4. Submission of the learned counsel for the tenant-petitioner is that the tenant is not in arrears of rent and as such, notice itself was invalid. It was next submitted that he has already deposited the rent under Section 30 of the Act and a finding has been recorded by the trial Court that it is not clear as to whether the amount was deposited under Section 30 of the Act after receipt of the notice or before receiving the notice and as such, it cannot be said that the benefit cannot be extended to the petitioner. It was further submitted that the petitioner has also made deposit under Section 20 (4) of the Act and as such, the finding recorded on issue no. 1 by the Courts below is absolutely incorrect, perverse and contrary to the evidence on record. It was however submitted that the rent was claimed from 1.6.2007 to 31.3.2009 and the tenant-petitioner has paid the rent upto January, 2009 in cash to the landlady but no receipt was given by her. It was further claimed that apart from deposit made under Section 30 of the Act, the deposit was also made under Section 20(4) of the Act and therefore, the finding that the benefit of Section 20(4) of the Act cannot be extended to the petitioner is wholly perverse and is liable to be set aside. 5. On the other hand, learned counsel appearing for the landlady-respondent has supported the judgment and orders impugned here and submitted that there is no proof of payment of arrears from 1.6.2007 and that this amount was not deposited under Section 20(4) of the Act, therefore, concurrent findings recorded by the Courts below are not liable to be disturbed. 6. The only issue involved in the present case is regarding the correctness of the decision of the Courts below on issue no. 4 whether the tenant-petitioner is entitled for benefit of Section 20 (4) of the Act or not. 7. I have considered the rival submissions and perused the record. 8. 6. The only issue involved in the present case is regarding the correctness of the decision of the Courts below on issue no. 4 whether the tenant-petitioner is entitled for benefit of Section 20 (4) of the Act or not. 7. I have considered the rival submissions and perused the record. 8. On perusal of the record, I find that the notice dated 25.4.2009 was given by the landlady-plaintiff, however, it is not on record as to on what date the notice was received. It is not in dispute that the tenant-petitioner deposited the rent under Section 30 of the Act on 27.4.2009 and as such, unless it is proved that the notice was received by the tenant-petitioner subsequent to the aforesaid date, the benefit of such deposit cannot be refused to the tenant-petitioner. However, finding of fact, which could not be demolished by the learned counsel for the petitioner, is that admitted rent was Rs. 500/-per month and finding to this effect has also been recorded by the trial Court and the tenant-petitioner is claiming that he has paid rent from 1.6.2007 to January, 2009 in cash to the landlady but no receipt has been given. It is only oral piece of evidence coupled with the fact that he has also stated in his cross-examination that he had paid the rent lastly in the year 2007 and at the same time he had also claimed that he has deposited the rent from 1.6.2007 to 31.3.2009 under Section 30 of the Act. This fact was found to be incorrect by the trial Court and it was found that in Misc. Case he has deposited the rent for seven months only on 15.7.2009. Thus, from the oral as well as documentary evidence the tenant-petitioner failed to prove that he has paid the rent or deposited the same from 1.6.2007 as demanded by the landlady. Admittedly, under Section 20(4) of the Act he has deposited the rent for seven months and payment of balance could not be proved. I have also gone through the statement of DW-1 (petitioner herein) recorded by the trial Court wherein he has admitted that he has paid the rent lastly in the year 2007 to the landlady and he has deposited the rent from 1.6.2007 to 15.5.2009 in the Court below, which he could not prove. I have also gone through the statement of DW-1 (petitioner herein) recorded by the trial Court wherein he has admitted that he has paid the rent lastly in the year 2007 to the landlady and he has deposited the rent from 1.6.2007 to 15.5.2009 in the Court below, which he could not prove. Under such circumstances, I do not find any legal infirmity in the findings recorded by the Court below on issue no. 4 as discussed above. 9. The scope of interference under Article 227 of the Constitution of India in such findings of fact, which have been recorded by the Courts below on the basis of documentary evidence or oral evidence, is extremely limited. 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. 10. 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. 11. At this stage, learned counsel for the petitioner prays that some time may be granted to vacate the premises in question. 12. 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 premises in question to the landlord-opposite party on or before 30.3.2019. (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) The tenant-petitioner 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-petitioner shall pay damages @ Rs. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.3.2019 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-petitioner shall also state that he 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-petitioner 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 petitioner, he shall also be liable for contempt. 13. There shall be no order as to costs.