Allahabad High Court
Zubair Ahmad Khan vs Court Of Judge,Small Causes ... on 11 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2853
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
RESERVED
Case :- S.C.C. REVISION No. - 104 of 2016
Revisionist :- Zubair Ahmad Khan
Opposite Party :- Court Of Judge,Small Causes Court/A.D.J.(Ct-4)L.Kheri & Ors.
Counsel for Revisionist :- Shishir Chandra,Vishnu Pratap Singh
Counsel for Opposite Party :- Vishwesh Pratap Singh,Samarth Saxena,Shiv Kumar Gupta
*****
Hon'ble Jaspreet Singh,J.
1. Heard Shri Shishir Chandra, learned counsel for the revisionist and Shri Vishwesh Pratap Singh, learned counsel for the opposite party.
2. The instant revision has been preferred under Section 25 of the Provincial Small Cause Court Act against the judgment dated 03.05.2016 passed by the Court of Additional District Judge, Court No.4, Lakhimpur Kheri acting as Judge, Small Cause Court in S.C.C. Suit No.4/2011 by virtue of which the suit of the opposite parties No.2 to 4 has been decreed against the revisionist.
3. Briefly, the facts giving rise to the revision are, that the opposite parties No.2 to 4 being the landlords, instituted a S.C.C. NO.4/2011 with the averment that the property in question which is a shop situated in Mohalla Khaprel Bazar, Lakhimpur Kheri, which was constructed in the year 2003 was let out to the revisionist (who was the defendant before the court below) in the year 2007 on monthly rent of Rs.600/- for a period of three years. It was specifically pleaded in Paragraph-3 of the plaint that the provision of U.P. Act No.13 of 1972 are not applicable. Since, after three years, the tenant-revisionist did not vacate the shop in question, accordingly a notice was sent to the defendant on 14.12.2010, which was returned unserved. The landlord again on 06.01.2011 sent another notice demanding arrears of rent and ejectment after terminating the tenancy. The aforesaid notice was served on the revisionist on 07.01.2011 by refusal. Since, the revisionist did not comply with notice, accordingly the suit for arrears of rent, ejectment and for damages for wrongful use and occupation came to be filed before the Judge, Small Cause Court / ADJ, Lakhimpur Kheri on 03.05.2011.
4. The suit was contested by the revisionist who filed his written statement and categorically denied the arrears of rent. The plea taken in the written statement was that the shop was let out to the revisionist on monthly rent of Rs.600/- in the month of June, 2007, however, the revisionist had also paid a sum of Rs.2,50,000/- as premium for taking the shop in question for which no receipt was issued. It was also understood between the parties that after three years which came to an end in the year 2010, the tenancy could be extended by enhancing the last paid rent by 10%. The defendant specifically pleaded that he had paid the rent to the opposite party-landlord, who refused to accept the same and consequently the revisionist started depositing the rent in the Court of Civil Judge (Junior Division) Kheri in Case No.7/2011 where rent stood paid till February 2012 and thereafter the rent was deposited before the S.C.C. Court and throughout the proceedings the defendant continued to deposit the rent which was also accepted by the landlord. It was also categorically pleaded in Para-16 of the written statement that the shop in question was more than 40 years old and it is incorrect to state that the provisions of U.P. Act No.13 of 1972 are not applicable. It was also specifically pleaded that the shop was not constructed in the year 2003 as alleged by the plaintiff and the defendant also claimed the benefit of Section 20(4) of the U.P. Act No.13 of 1972.
5. The parties led their respective evidence and the trial court after hearing the parties has recorded a finding that the building in question was a new construction and, therefore, the provisions of U.P. Act No.13 of 1972 are not applicable. It also held that the compliance of Section 20(4) of the U.P. Act No.13 of 1972 as made by the revisionist was incomplete and therefore, he could not be granted the benefit of the same and it also found that the composite notice for demand and ejectment was duly served on the revisionist by refusal.
6. With the aforesaid findings, the suit of the opposite parties was decreed by means of the judgment dated 03.05.2016. It is against this judgment that the instant revision has been preferred.
7. Shri Shishir Chandra, learned counsel for the revisionist has attacked the judgment primarily on two grounds. (i) It has been submitted that the building in question was an old construction and the court below has erroneously found that the shop was constructed in the year 2003. It has been submitted by Shri Chandra that the opposite parties had admitted before the civil court in his cross-examination, which was held in a suit for injunction preferred by the revisionist against the landlord seeking a relief that the tenant may not be dispossessed from the rented premises without due process of law. In the said suit, it was established and admitted that the property was more than 40 years old which was acquired by the grand-father of the opposite parties. He had admitted that after the death of his grand-father, the property devolved on his son (i.e. father of the opposite parties) and after him the property devolved on the present opposite parties. He further admitted that the house tax was being paid by his father and grand-father earlier and the property has been subjected to assessment. Shri Shishir Chandra has pointed out that they had filed assessment documents of the property in question which has been erroneously discarded by the court below and in light of the aforesaid admissions and documents, the findings recorded by the court below that the premises was a new construction was apparently perverse. It was also submitted that since the plea that the U.P. Act No.13 of 1972 was not applicable it was the duty of the landlord to have established the aforesaid facts but he had failed to so do. The only document brought on record and to substantiate that plea was a copy of a map sanctioned for construction. It has been submitted that the aforesaid map itself may not be a proof to indicate that new construction was made in pursuance thereof. No document, receipt or picture of the shop being constructed nor any independent witness thereof was produced and thus a finding in respect of this aspect of the matter suffers from grave irregularity.
(ii) The second point of attack of Shri Chandra is on the finding so far as the incomplete compliance of Section 20(4) of the U.P. Act No.13 of 1972 is concerned. It has been submitted that the revisionist had deposited at the time of first hearing the complete outstanding sum along with interest and the costs of the suit which also included the counsel's fee, which has not been considered by the court below coupled with the fact that the deposit made by the revisionist under Section 30 of the U.P. Act No.13 of 1972 has not been considered whereas the provisions of Section 20(4) of the U.P. Act No.13 of 1972 itself provides that the amount deposited under Section 30 of the U.P. Act No.13 of 1972 shall be taken into consideration while ascertaining whether the compliance of Section 20(4) of the U.P. Act No.13 of 1972 has been made or not. Thus, ignoring the aforesaid, it has been submitted that the findings are bad and accordingly the suit of the opposite parties could not have been decreed.
8. Learned counsel for the revisionist has relied upon a decision reported in 2009 (27) LCD 934 - Rajendra Prasad Khanna vs. Additional District Judge, Banda & Anr. On the strength of the aforesaid judgment, it has been argued by the revisionist that the date of construction is to be determined as per Section 2(2) and the explanation appended thereto in the U.P. Act No.13 of 1972.
9. Per contra, Shri Vishwesh Pratap Singh, learned counsel for the opposite parties has urged that the findings recorded by the Judge, Small Cause Court are based on appreciation of evidence. Thus, being essentially a finding of fact may not be disturbed in exercise of powers under Section 25 of the Provincial Small Cause Court Act. It has been submitted that the revisionist in his cross-examination could not establish the fact that who was the occupant of the shop in question prior to the revisionist himself and even the assessment list which was filed did not co-relate to the premises in question and, therefore, it could not be established that the premises were old. Thus, the submission is that the findings of the trial court on the issue of the date of construction is based on appreciation of evidence and is not liable to be challenged in the revision. It was also urged by Shri Singh that the revisionist did not make a complete compliance of Section 20(4) of the U.P. Act No.13 of 1972 and, therefore, the trial court has rightly held that the revisionist was not entitled to the benefit and the suit has been appropriately decreed. It has been submitted that the issue regarding the service of notice of the demand and ejectment has not been assailed and, therefore, once the notice stands served coupled with the fact that the building is not governed by the U.P. Act No.13 of 1972. In such a situation, the trial court has rightly decreed the suit and the same requires no interference from this Court.
10. Learned counsel for the opposite party has relied upon a decision in the case of Naresh Chandra Jain vs. Smt. Sarla Misra, 2003 (2) ARC 93.
11. Having considered the rival arguments and on perusing the record, the point for consideration before this Court is (i) whether the building in question is a new construction and consequently the provisions of the U.P. Act No.13 of 1972 are not applicable; (ii) whether there has been sufficient compliance of Section 20(4) of the U.P. Act No.13 of 1972 and the revisionist has been unlawfully deprived of the aforesaid benefit.
12. At the outset, it would be necessary to notice the scope of a revision under Section 25 of the Provincial Small Cause Court Act. The Hon'ble Apex Court in the case of Ram Murti Devi Vs. Pushpa Devi and Others, 2017 (15) SCC 230 while considering the scope of revision under Section 25 of the Provincial Small Cause Courts' Act has stated in following words which reads as under:-
"29. The High Court was hearing a revision under Section 25 of the 1887 Act. What is the scope of Section 25 of the 1887 Act came for consideration before this Court in Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , where this Court laid down the following in para 9: (Hari Shankar case [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , AIR p. 701) "9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd. v. Waman Hemraj, 1937 SCC OnLine Bom 99 : AIR 1938 Bom 223] where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4) ''3. The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence."
30. Further, in Mundri Lal v. Sushila Rani [Mundri Lal v. Sushila Rani, (2007) 8 SCC 609] which was a case arising from Act 13 of 1972 and a revisional jurisdiction under Section 25 of the 1887 Act, in paras 22 and 23, this Court held that the jurisdiction under Section 25 of the Provincial Small Cause Courts Act, is wider than Section 115 CPC. It is further held that pure finding of the fact based on appreciation of evidence although may not be interfered but there are several circumstances in which the Revisional Court can interfere with the finding of fact. In paras 22 and 23 following was stated: (SCC pp. 617-18) "22. There cannot be any doubt whatsoever that the revisional jurisdiction of the High Court under Section 25 of the Provincial Small Cause Courts Act is wider than Section 115 of the Code of Civil Procedure. But the fact that a revision is provided for by the statute, and not an appeal, itself is suggestive of the fact that ordinarily revisional jurisdiction can be exercised only when a question of law arises.
23. We, however, do not mean to say that under no circumstances finding of fact cannot be interfered therewith. A pure finding of fact based on appreciation of evidence although may not be interfered with but if such finding has been arrived at upon taking into consideration irrelevant factors or therefor relevant fact has been ignored, the Revisional Court will have the requisite jurisdiction to interfere with a finding of fact. Applicability of the provisions of Section 2(2) of the Act may in that sense involve determination of mixed question of law and fact."
13. Similarly in the case of Trilok Singh Chauhan Vs. Ram Lal, reported in 2018 (2) SCC 566, once again while considering the scope of Revision under Section 25 of the Provincial Small Cause Courts Act the Apex Court has stated and the relevant portion reads as under:-
"14. The High Court was exercising the jurisdiction under Section 25 of the 1887 Act, which provision is as follows:
"25. Revision of decrees and orders of Courts of Small Causes.--The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit."
15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , in paras 9 and 10, this Court laid down the following: (AIR p. 701) "9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd. v. Waman Hemraj, 1937 SCC OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR 1938 Bom 223] , where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4).
''3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence.
10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption."
16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani [Mundri Lal v. Sushila Rani, (2007) 8 SCC 609] . This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence."
14. The scope of Section 25 of the Provincial Small Cause Court Act also came to be considered by a Coordinate Bench of this Court in the case of Suresh Chandra vs. Radhey Shyam Agrawal & Ors., 2015 (5) ADJ 449. The relevant paras reads as under:-
"76. The language of Section 25 is different than the Revisional Court's powers conferred on civil court under Section 115 C.P.C.
77. Act, 1887 constitute Small Cause Courts not of exclusive but preferential and limited jurisdiction. The class of suits not cognizable by small causes is listed in the schedule appended to Act, 1887. The provisions of Civil Procedure Code inapplicable to Small Cause Court are provided in Section 7 of C.P.C. By Section 40 of Bengal, Agra and Assam Civil Courts Act, 1887 certain provisions thereof, i.e., Sections 15, 32, 37, 38 and 39 have been applied to Small Cause Courts. Vide Section 7, applicability of Sections 96, 112 and 115 C.P.C. is made inapplicable to Small Causes Court, meaning thereby its judgment is made non-appealable. The Trial in Small Cause Court is summary and its decision is final subject to revision under Section 25 only. It is in these circumstances, one has to make a distinction between power of Revisional Court under Section 25 and other appellate and revisional powers under C.P.C. or other provisions of procedural statutes.
78. The circumstances where Revisional Court to find out whether decision of Small Cause Court is in accordance with law, may look into the facts without assessment have been explained in para 19 and 20 of judgment of Division Bench in Laxmi Kishore and another Vs. Har Prasad Shukla, 1981 ARC 545 and it says:
"19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on admissible evidence. In such case, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz. validity of notice, is sufficient for its decision.
20. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order, as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine as issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, asses it and determine an issue of fact."
79. The bar, in effect, is with respect to reassessment of evidence and substitute its conclusion of fact but not where relevant evidence has not been considered or finding is based on inadmissible evidence or finding is without any evidence etc. In Dr. D. Sankaranarayanan Vs. Punjab National Bank, 1995 Supp. (4) SCC 675 the Apex Court reiterate that reassessment of evidence is not permissible to substitute its own inference but not where the decision is not in accordance with law. If the Revisional Court does not agree with finding, that by itself cannot be a ground since it is within the realm of assessment of evidence. This is what has been observed by Apex Court in Rafat Ali Vs. Sugni Bai and others, JT 1998(8) SC 157; Sri Raj Laxmi Dyeing Works Vs. Rangaswami, JT 1998(4) SC 46; Sarla Ahuja Vs. United Insurance Company Ltd., JT 1998 (7) SC 297; and, Ramdoss Vs. K. Thangavelu, JT 1999(10) SC 51."
15. It is in the backdrop of the principles noticed by the Hon'ble Apex Court as well as by this Court in exercise of powers under Section 25 of the Provincial Small Cause Court Act, this court embarks to determine whether the judgment passed by the trial court is in accordance with law.
16. Coming to the first issue, from the perusal of the record, it indicates that the opposite party who was cross-examined in Suit No.632/2010 and the certified copy of his cross-examination was filed before the S.C.C. Court wherein the opposite parties had clearly stated that the shop in question was his ancestral property which was acquired by his grand-father Shri Laxman Prasad who used to reside therein. He further submitted that he did not know when his grand father had raised construction, however, the repair of the same was done by his father from time to time and thereafter his mother used to do the same. He further admitted that the premises where the shop in question existed, the same belonged to his grand-father and it was inherited by the father of the opposite parties and after him, the present opposite parties are in possession. He further stated that the house tax of the same is being paid for last more than 40 years. He also admitted that he has no documents to establish that the shop was constructed in the year 2003.
17. Thus, from the clear averments, which were available on record, it clearly indicated that the plaintiff-opposite parties, who raised the plea regarding non-applicability of the Act and the burden of proof was on him to have established the plea by cogent evidence that the shop in question was a new construction. Since, the burden lay on the shoulders of the plaintiffs and on the record of the present S.C.C. Suit, except for the sanctioned map from the Municipal Authorities, there is no other document by which it could be establish that the shop in question was a new construction.
18. The finding recorded by the trial court based solely on this document without any corresponding evidence regarding the construction does not appear to have been recorded on the sound basis of appreciation of evidence. The trial court has completely ignored the effect of the statement made by the landlord in the suit for injunction instituted by the tenant in respect of the same property. No effort was made by the landlord even to explain the statements and though certified copy of his cross-examination was available on record, the same could not have been ignored although the initial burden was on the plaintiff to establish that the property in question was a new construction.
19. Moreover, the defendant-revisionist had brought on record the assessment list bearing Papers No.Gha-31; Gha-32 and Gha-33. From the perusal of the aforesaid documents, it indicate that the name of Shri Babu Ram son of Shri Laxman Prasad is mentioned. It also indicates that the property in question is situated in Bazar and it has been stated that the assessment is for the year 2012-13, and also of the year 1982-83. The findings arrived at by the trial court to indicate that the said assessment list does not indicate in whose name the property is situate, while it has considered that it only mentions the name of who pays the tax. It is settled law that the tax is paid by the owner and it is not the duty of the tenant to pay the house tax unless agreed otherwise. In light of the original assessment, the burden was on the plaintiff to indicate that the name of his grand-father which was mentioned therein did not relate to the property which is the subject matter of the S.C.C. Suit. No effort was made to either discredit the aforesaid assessments by making any statement or explaining the same by the landlord nor there was any attempt to explain the statement given by him in the injunction suit in respect of the property in question.
20. At this stage, it will be relevant to mention that the decision relied upon by the opposite parties in the case of N.S. Chandra (Supra) has no application to the present case inasmuch as in the case of N.S. Chandra, the Court had considered that not only the sanction plan but there were other receipts also of the house tax and payment of purchase of material relating to the construction work which were filed in support to contend that the building was a new construction. However, in the present case, the opposite parties have failed to bring on record any material except the sanction plan which does not inspire the confidence and accordingly the decision of N.S. Chandra (supra) is not applicable and is clearly distinguishable on facts.
21. Thus, the findings recorded by the trial court on the issue of whether building was a new construction and the provisions of the U.P. Act No.13 of 1972 were applicable has not been sufficiently and properly answered. The findings suffers from incorrect appreciation and reading of the evidence, accordingly, this Court has no hesitation to set aside the same.
22. The second question regarding the compliance of Section 20(4) of the U.P. Act No.13 of 1972 is concerned, from the perusal of the record, it indicates that the defendant had made an application bearing Paper No.Ga-18 wherein he had clearly indicated that he is depositing the rent upto April, 2012. The interest as well as the costs has also been deposited. The total sum of Rs.11,800/- was deposited and it was further mentioned that the rent prior to February, 2012 at the rate of Rs.1,600/- was already deposited in the proceedings under Section 30 of the U.P. Act No.13 of 1972 in Case No.7/2011 before the Court of Civil Judge (Junior Division), Kheri. The record also indicates that the amount of Rs.11,800/- was received by the landlord. Subsequently, during the pendency of the aforesaid suit as and when the rent/damage became due, the same was deposited by the tenant and it was accepted by the landlord.
23. Section 20(4) of the U.P. Act No.13 of 1972 is being reproduced as under for the convenient perusal:-
"(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or [tenders to the landlord or deposits in court] the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:
Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
[Explanation.-For the purposes of this sub-section-(a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant;
(b) the expression "cost of the suit" includes one-half of the amount of counsel's fee taxable for a contested suit.]"
24. From the bare perusal of the aforesaid section, it indicates that in order to get the benefit, the entire amount of rent/damages for the use and occupation due from the tenant together with interest @ 9% per annum and the landlord costs of suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30 of the U.P. Act No.13 of 1972 shall be deposited and once the compliance is complete then a decree of eviction cannot be made on that ground.
25. The trial court has blandly held that the compliance of Section 20(4) of the U.P. Act No.13 of 1972 is wanting. It is held that though the arrears of rent, interest and costs of the suit has been deposited but the counsel's fee has not been deposited. It will be relevant to point out that the application filed by the tenant bearing Paper No.Ga-18 indicates that the costs of the suit has been deposited amounting to Rs.5,300/-. The Court fee paid by the landlord is only Rs.3,566/-. There is no objection filed before the trial court by the landlord to indicate as to how the aforesaid compliance was insufficient inasmuch as the counsel's fee which is alleged to have not been deposited. There is no finding as how much was the counsel's fee and despite the fact that a sum of Rs.5,300/- was deposited against the costs of the suit and the court fee paid was Rs.3,566/- and there was an excess of Rs.1,734/- then in what circumstances there was any deficiency. This aspect has not been indicated nor discussed by the trial court.
26. Section 20(4) of the U.P. Act No.13 of 1972 is a beneficial provision for the tenant. In case if the benefit of the provision is being deprived then it is the duty of the landlord to indicate how the aforesaid compliance is less and this aspect of the matter also requires to be considered by the trial court while recording its findings. In the present case, neither there were objections to the effect that the compliance is insufficient nor there has been any evidence led by the opposite parties to indicate as to in what manner the compliance was deficient and as to what extent. Moreover, it has erroneously held that the deposit made under Section 30 of the U.P. Act No.13 of 1972 shall not be adjusted. It is not in dispute that the tenant had deposited the amount under Section 30 of the U.P. Act No.13 of 1972. The provisions as quoted hereinabove also indicates that the amount deposited under Section 30 of the U.P. Act No.13 of 1972 is adjustable from the amount which has to be paid in compliance of Section 20(4) of the U.P. Act No.13 of 1972.
27. In light of the discussions made above and from the perusal of the impugned judgment, it indicates that the trial court has not applied its judicial mind and has recorded a finding which is not based on any evidence. It has merely come to a conclusion that though the amount along with 9% interest and costs has been paid, but the Advocate fee has not been paid. Mere statement without being backed by any evidence is no finding in the eyes of law. Thus, this Court is satisfied that the findings returned on the issue of compliance regarding Section 20(4) of the U.P. Act No.13 of 1972 is also erroneous and cannot be sustained and accordingly set aside.
28. Further, being conscious of the jurisdiction exercised by this Court in terms of Section 25 of the Provincial Small Cause Court Act and both the findings relating to whether the building was a new construction or not and whether there has been sufficient compliance of Section 20(4) of the U.P. Act No.13 of 1972, being essentially questions of fact and the trial court has recorded erroneous findings. Accordingly, this Court refrains from substituting its own finding and the matter is remitted to the trial court to consider the matter afresh in light of the observations and guidelines laid down by this Court.
29. In view of the above, the revision is allowed. The impugned judgment dated 03.05.2016 is set aside. The matter is remitted back to the Court of Judge, Small Cause Court / Additional District Judge, Court No.4, Lakhimpur Kheri, who shall after hearing the parties, decide the matter afresh on the strength of the matter and material already available on record and in light of the observations made by this Court, within a period of six months from the date, a certified copy of this order is placed before it.
30. The registry is directed to remit the record of lower court to the court concerned expeditiously say within a period of one week from today.
31. There will be no order as to costs.
Order Date :- 11.11.2019 Rakesh/-