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2018 DIGILAW 696 (ALL)

SANJAY KUMAR GUPTA v. NAZMUL HASAN KHAN

2018-03-22

SURYA PRAKASH KESARWANI

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JUDGMENT/ORDER : Surya Prakash Kesarwani, J. Heard learned counsel for the defendant-tenant/ revisionist and the learned counsel for the plaintiffs-landlords/respondents. 2. Briefly stated facts of the present case are that undisputedly plaintiffs-respondents are landlords of the disputed shops "A" and "B" of House No. 133/P/166-167, Rattpurva T. P. Nagar, Kanpur Nagar. The disputed shops being Shop Nos. "A" and "B" were let out to the defendant-tenant/ revisionist. Allegedly on account of default in payment of rent for the period from 01.09.2014 till 31.12.2014, the plaintiffs-landlords/ respondents issued a notice dated 17.01.2015 by registered post which was served upon the defendant-tenant/ revisionist on 19.01.2015. By the aforesaid notice, the tenancy was determined and arrears of rent of Rs. 68,000/- was demanded. Neither the disputed shops were vacated nor arrears of rent were paid and as such the plaintiffs-landlords/ respondents filed SCC Suit No. 49 of 2015 (Nazmul Hasan Khan vs. Sanjay Kumar Gupta and others), which was decreed by the judgment dated 27.01.2018 passed by the FTC/ Additional District Judge, Court No. 52, Kanpur Nagar. Aggrieved with this judgment, the defendant-tenant/ revisionist has filed the present Revision under Section 25 of the Provincial Small Cause Courts Act, 1887. 3. Submission of learned counsel for the defendant-tenant/ revisionist is that the rent of the Shop "A" was Rs. 1550/- per month while the rent of the Shop "B" was Rs. 4,000/- per month and as such the court below has committed a manifest error of law to hold that the rent of each of the shops is Rs. 5,000/- per month. The court below has rejected the claim of the plaintiffs-landlords for rent of Rs. 17,000/- per month for both the shops but at the same time, has committed a manifest error of law to hold that the rent for both the shops is Rs. 10,000/- per month. The court below has also ignored the cross-examination of the plaintiffs-landlords dated 17.08.2016. The defendant-tenant/ revisionist has not defaulted in payment of rent and, therefore, the court below has committed a manifest error of law to decree the aforesaid SCC suit. The defendant-tenant/ revisionist has filed rent receipt by List 49ga but the court below has picked up only those rent receipts in which the rent of the shop "A" is recorded as Rs. 5000/- and without any basis left those receipts in which the rent was recorded as Rs. 1550/- per month. 4. The defendant-tenant/ revisionist has filed rent receipt by List 49ga but the court below has picked up only those rent receipts in which the rent of the shop "A" is recorded as Rs. 5000/- and without any basis left those receipts in which the rent was recorded as Rs. 1550/- per month. 4. Learned counsel for the plaintiffs-landlords/ respondents supports the impugned order. 5. I have carefully considered the submissions of the learned counsel for the parties. 6. While deciding the issue No. 3, the court below has recorded a finding of fact that as per own evidence filed by the defendant-tenant/ revisionist by List 49ga being Paper No. 49ga/4, the rent of the disputed shop "A" is Rs. 5000/- per month while as per Paper No. 49ga/7 being money order receipts, the rent of shop "B" is Rs. 5000/-. In his cross-examination, the defendant-tenant/revisionist, after seeing the paper No. 49ga/4, has stated that it is a rent receipt for shop "A" for the period 01.08.2016 to 31.10.2016 for Rs. 5000/-. When he was confronted with the written statement being paper No. 28ga and the paper No. 49ga/4, he stated that since the rent was being increased, therefore, there is a difference. He further stated in his cross-examination that paper No. 49ga/7 to 49ga/12, are the remittance of rent to the plaintiffs-landlords/ respondents in which rent is recorded as Rs. 5000/-. He further stated in his cross-examination that it is false to say that he has filed forged and fake receipts. Thus, the defendant-tenant/ revisionist himself took the stand on the basis of papers filed by him that the rent of shop "A" is Rs. 5000/- per month and the rent of shop "B" is also Rs. 5000/- per month. Thus, on consideration of own evidences of the defendant-tenant/ revisionist, the court below held rent of the shop "A" and shop "B" to be Rs. 5000/- each per month. The case set up by the plaintiffs-landlords for rent to be Rs. 17,000/- per month for both the shops was not accepted by the court below on the basis of papers filed by the defendant-tenant/ revisionist. 7. Thus, I do not find any manifest error of law in the finding recorded by the court below that the rent of shop "A" is Rs. 5000/- per month and the rent of shop "B" is also Rs. 5000/- per month. 7. Thus, I do not find any manifest error of law in the finding recorded by the court below that the rent of shop "A" is Rs. 5000/- per month and the rent of shop "B" is also Rs. 5000/- per month. The aforesaid finding as well as finding recorded with respect to the default in payment of rent are findings of fact based on consideration of relevant evidences on record. Therefore, these findings cannot be interfered in revisional jurisdiction under Section 25 of Provincial Small Cause Courts Act. The court below has rightly held that the provisions of U.P. Act XIII of 1972 are not applicable on the facts of the present case. In view of the aforesaid, I do not find that the impugned judgment suffers from any manifest error law or that the court below has exceeded its jurisdiction in passing the impugned judgment. 8. In view of the above discussion, I do not find any merit in this Revision. Consequently, the Revision fails and is hereby dismissed. 9. After this order was dictated in open court learned counsel for the defendant-tenant/ revisionist states on instructions that defendant-tenant/ revisionist shall submit an undertaking within four weeks from today on oath before the court below to the effect that he shall vacate the disputed shops "A" and "B", and, handover its vacant and peaceful possession to the Plaintiffs-landlords/ Respondents on or before 30. 09. 2018 and shall deposit entire decreetal amount in addition to a sum of Rs. 75,000/- for use and occupation of the disputed shops for the period from today till 30. 09. 2018 and in that event till 30. 09. 2018, no coercive action may be taken against the defendant-petitioner for dispossessing him from the disputed shops pursuant to the impugned judgment and decree. 10. Learned counsel for plaintiffs-respondents has no serious objection to aforesaid request of the learned counsel for the defendant-tenant/ revisionist. 11. In view of the aforesaid request of the learned counsel for the defendant-tenant/ revisionist, it is provided that in the event the defendant-tenant/ revisionist submits an undertaking on oath to the aforesaid effect and deposits the entire decreetal amount as well as a sum of Rs. 75,000/- as aforesaid within four weeks from today before the court below, then in that event, no coercive action shall be taken against the defendant-tenant/ revisionist with respect to the disputed shops till 30. 75,000/- as aforesaid within four weeks from today before the court below, then in that event, no coercive action shall be taken against the defendant-tenant/ revisionist with respect to the disputed shops till 30. 09. 2018. In the event of default either in submitting the undertaking or in depositing the decreetal amount or the sum of Rs. 75,000/- as aforesaid within the stipulated period, the aforesaid protection given to the defendant-tenant/ revisionist shall automatically stand vacated. It is further provided that in the event, the disputed shops are not vacated, and, its vacant and peaceful possession is not handed over by the defendant-tenant/ revisionist to the plaintiffs-respondents on or before 30. 09. 2018, then the plaintiffs-respondents shall be entitled to initiate appropriate proceedings against the defendant-tenant/ revisionist including the proceedings for contempt.