Allahabad High Court
Smt. Girja Shanker W/O Late Girja ... vs Krishna Kumar Jaiswal S/O Jagdish ... on 27 January, 2011
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 11 Case :- RENT CONTROL No. - 155 of 2010 Petitioner :- Smt. Girja Shanker W/O Late Girja Shanker & Ors. Respondent :- Krishna Kumar Jaiswal S/O Jagdish Narain Jaiswal @ Lallu Ji Petitioner Counsel :- Mohd. Shakeel Respondent Counsel :- K.K. Jaiswal (In Person),S.K.Dixit Hon'ble Anil Kumar,J.
Heard Srii Mohd. Shakeel, counsel for the petitioner.
By means of the present writ petition, the order dated 07.10.2010 (Annexure-1) passed by Additional District Judge, Court No. 10, Luckbnow in SCC Revision No. 129 of 2008 Raju Sharma and others Vs. Krishna Kumar Jaiswal and others as well as judgment and decree dated 11.11.2008 (Annexure-2) passed by Judge, Small Causes Court, Lucknow in SCC No. 184 of 2005 Krishna Kumar Jaiswal Vs. Raju Sharma and others are under challenge.
controversy in the present case relates to a shop under the tenancy of petitioner situated at building No. 260/84, Aishbag, Lucknow.
East : Shop No. 3 West : Shop No. 1North : Road South : Remaining Residential Portion of plaintiff's house.
In respect to the same, Sri Krishan Kumar Jaiswal/respondent filed a suit for arrears of rent and eviction and change of use, under the provisions of Small Cause Courts Act, 1987, registered as SCC Suit No. 184 of 2005 Krishna Kumar Jaiswal Vs. Raju Sharma and others in the court of Judge, Small Cause Court, Lucknow after exchange of the pleadings the issues were framed and issue No. 2 is to the effect that:-
"Kya wadi evam pratiwadi ke madhya makandar evam kireyadar ke sambandh sthapit hai?"
Further, after going through the material document on record and taking into consideration the statement of PW 1 Sri (Krishan Kumar Jaiswal) as well as DW 1 (Raju Sharma), the trial court had come to the conclusion that the relationship between the petitioner and Sri Krishan Kumar Jaiswal is of landlord and tenant. Accordingly, allowed SCC suit by means of judgment and decree dated 11.11.2008.
Aggrieved by the same, the petitioner filed a revision under Section 25 of the Provincial Small Causes Courts Act, 1987 registered as SCC revision No. 129 of 2008 Raju Sharma and others Vs. Krishan Kumar Jaiswal, dismissed vide order dated 07.10.2010 thereby affirming the order passed by the trial court/Judge, Small Causes Court, Lucknow, hence the present writ petition has been filed thereby challenging the said orders.
Sri Mohd. Shakeel, counsel for the petitioner submits that the finding recorded by the court below to the effect that there exists the relationship of landlord and tenant between the parties is totally incorrect and wrong and as the matter of fact the shop in question has been let out to the petitioner by Sri Jagdish Narain who is the father of Sri Krishna Kumar Jaiswal, as such there is no relationship of landlord and tenant between her and Sri Krishna Kumar Jaiswal who has filed the suit in question, so the orders passed by the court below are perverse in nature and contrary to the fats of the case liable to be set aside.
I have heard the counsel for the petitioner and gone through the record.
So far as the sole argument which is advanced by the learned counsel for the petitioner is concerned in this regard, the Judge, Small Causes Courts, Lucknow while deciding the issue No. 2 on the basis of material on record, specially taking into consideration the statement of Sri Krishan Kumar Jaiswal (PW 1) as well as Sri Raju Sharma (DW 1) had come to the conclusion the petitioner as well as Sri Jagdish Narain are the joint owner of the shop in question and there exists a relationship of tenant and landlord between the petitioner and Sri Krishna Kumar Jaiswal.
Further in the instant case, the tenant/petitioner has although denied the relationship of landlord and tenant between the parties, but he fails to establish the said plea by any cogent evidence rather the trial court/Judge Small Causes Court on the basis of evidences on record i.e. statement of P.W. 1(Krishna Kumar) and DW1( Raju Sharma) had given a finding of fact to the effect that there exists relationship of landlord and tenant between the parties, subsequently, affirmed by revisional court, so keeping in view the said concurrent finding of facts as well as settled provisions of law that mere denial of relationship is not sufficient to oust of jurisdiction of the court constituted under the provincial of Small Cause Courts Act, 1987 (See Ram Ashere Savita Vs. IInd A.D.J., Kanpur Dehat and others, 2005 (3) AWC 2466 and Shrimati Devi (D) through L.Rs Vs. IVth A.D.J., Meerut and others 2005 (1) AWC 162), I do not find any force and merit in the argument raised by learned counsel for the petitioner in this regard.
Needless to mention herein that this Court while exercising the power of judicial review under Article 226 of the Constitution of India can only interfere in the judgment passed by courts below if the same are perverse in nature and contrary to the facts.
The said proposition of law has already been upheld by Hon'ble the Apex Court in the case State of West Bengal versus A.K. Shaw (AIR 1990 SC 2205), wherein it has been observed that if quasi judicial Tribunal had appreciated the evidence on record and recorded the findings of fact, those findings of fact would be binding on the High Court. By the process of Judicial review, the High Court cannot appreciate the evidence and record its own findings of fact.
As stated above, on the basis of the material on records and evidence, the courts below had given concurrent finding of fact that there exists a relationship of landlord and tenant between the parties and learned counsel for the petitioner fails to establish and show that in what manner the same is perverse or contrary to the facts of the case. So, I am of the opinion that, the present writ petition lacks merit and is liable to be dismissed.
Further, Sri Mohd. Shakeel, learned counsel for the petitioner requests that as the petitioner has running his business from the shop in question, so he may be given sometime to evict on an undertaking given by him to vacate the same and hand over the peaceful possession to O.P. No. 1.
Keeping in view the said fact, the tenant/petitioner is permitted to retain the possession of shop by 30th of June, 2011 provided he gives an undertaking on an affidavit in the court of Judge, Small Cause Court, Lucknow within a period of 15 days from today that he will vacate and give the peaceful possession of the shop in question on or before 30th of June, 2011 to Sri Krishna Kumar Jaiswal/O.P. No. 1.
With the above observations, the writ petition is dismissed.
No order as to costs.
Order Date :- 27.1.2011 Ravi/