Allahabad High Court
Jagdish Prasad vs Rishab Kumar Yadav on 3 December, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 43 Case :- MATTERS UNDER ARTICLE 227 No. - 5439 of 2019 Petitioner :- Jagdish Prasad Respondent :- Rishab Kumar Yadav Counsel for Petitioner :- Prateek Sinha, Amar Nath Sinha Counsel for Respondent :- Prakhar Tandon Hon'ble Vivek Agarwal,J.
Heard Shri Prateek Sinha, learned counsel for the petitioner, and Shri Prakhar Tandon learned counsel for the respondent.
This writ petition under Article 227 of Constitution of India has been filed by the petitioner/tenant being aggrieved of the impugned judgment and order dated 21.09.2017 passed by learned Judge, Small Cause Court, Kanpur in SCC Suit No.142 of 2011 Rishab Kumar Yadav vs. Jagdish Prasad whereby suit for eviction filed by the plaintiff has been decreed against the defendant.
Petitioner is also aggrieved of the judgment and order dated 04.04.2019 passed by 11th Additional District Judge, Kanpur Nagar in Small Cause Revision No.109 of 2017 (Jagdish Prasad vs. Rishab Kumar Yadav) whereby the learned revisional court has dismissed the revision filed by the tenant and has confirmed the judgment/order passed by learned Small Causes Court.
Petitioner's contention is that the courts below have failed to appreciate the facts in the correct perspective. It is submitted that petitioner was never in the arrears of rent and therefore, when there were no arrears of rent, therefore, there was no question of invoking provisions contained in Section 20 (4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as the Act of 1972) inasmuch as there was no non-compliance of clause (a) of subsection (2) of Section 20 which provides that a suit for eviction of a tenant, building after determination of his tenancy may be instituted on one or more of the following grounds, namely;
(a) that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand.
Placing reliance on such provision it is submitted that notice was issued on 23.05.2011 which was served on the petitioner on 24.05.2011 and it was replied to by the petitioner on 03.06.2011. In the reply to the notice it is mentioned that arrears of rent till June 2011 were sent through money order and therefore, no ground for eviction arises.
Learned counsel for the petitioner submits that as there were no arrears of rent, therefore, Section 30 which provides for deposit of rent in Court in certain circumstances will not come into picture and, therefore, there being no cause of action for filing the suit for eviction, suit was not maintainable.
Learned counsel for the petitioner submits that money order was sent through registered post and therefore burden to prove that money order was not received was on the sendee and not on the sender, therefore, the courts below erred in overlooking the document contained in annexure-5 showing receipt of money order for a sum of Rs.736/- issued on the address of the landlord allegedly on 10.06.2011.
It is also submitted that before adverting to the grounds available under Section 20(2)(c) it is for the landlord to prove that the alteration was material and there is a duty cast on the court to point out as to whether construction is of a permanent nature or of temporary nature. It is submitted that no finding has been recorded in this regard.
Learned counsel further submits that principle of waiver of written consent will be applicable, the landlord was aware of the construction of the wall which was made on the basis of oral permission of the earlier owner and, therefore grounds to allege violation of provisions contained in Section 20(2)(c) is not available to the plaintiff/landlord. It is also submitted that additional evidence could have been taken before the revisional court under Order XLI Rule 27 C.P.C. and therefore, the revisional court below erred in holding that such provisions of Code of Civil Procedure are not applicable to the proceedings before a court of Small Causes or a revision arising out of judgment and order passed by Small Causes Court.
Learned counsel for the respondent submits that petitioner has failed to make out any case and therefore, the suit has been rightly decreed by the court below. It is submitted that petitioner has failed to examine the concerned Postman or the Post Master of the concerned post office to prove the endorsement that any money order was ever presented to the plaintiff and he had refused to accept such money order, copy of which has been enclosed by the petitioner as annexure-5. It is also submitted that in any case if the averment of the petitioner is accepted to be correct then, in terms of the provisions contained in Section 30 petitioner was required to deposit the rent in the court because the allegation of the petitioner is that landlord had refused to accept the same. It is submitted that having failed to deposit the rent in the court, even after getting knowledge of the fact that the landlord has refused to accept the rent, provisions of Section 30 of the Act of 1972 have been rightly invoked by the court below.
It is further submitted that construction of a wall by the petitioner and making encroachment over the rented premises and using it for commercial purpose are facts which could not be rebutted by the petitioner before the court below. It is submitted that the petitioner had failed to lead evidence before the court below and has tried to rise a bogey of inconsistent pleading so to take advantage of his unauthorized possession of the suit property.
After hearing learned counsel for the parties and going through the records, it is evident that rent was deposited by the present petitioner before the competent court on 23.07.2011 in terms of the provisions contained in Section 30(1) of the Act of 1972 for a duration starting from 01.10.2003 to 30.06.2011.
It has come on record that petitioner could not lead any evidence to show that rent was ever paid to the plaintiff or he refused to accept the rent and therefore, the contention of the petitioner is that provisions contained in Section 30(2)(a) are not made out is incorrect submission and not borne out from the material available on record. Petitioner did not produce any receipt to show that he was in any arrears of rent w.e.f. 01.10.2003 rather depositing the same without there being any protest amounts to admission of arrears of rent.
Admittedly, notice was served on the petitioner on 24.05.2011 but petitioner could not prove sending of alleged money order contained in annexure-5 or act of refusal of the plaintiff to accept the same by examining either the Postman who had put a note or Post Master of the concerned post office, therefore, the factum of having sent a money order and that being refused by the landlord having not been proved cannot be said to have been proved by the petitioner. In view of such facts, first argument that there were no arrears of rent is not made out and therefore, the court below rightly decided issue no.3 in favour of the plaintiff and against the present tenant that there were arrears of rent against the present petitioner.
Learned counsel for the petitioner has submitted that there was firstly no illegal construction of any permanent nature so to attract provisions of Section 20(2)(c) of the Act of 1972 and in any case principle of waiver will be applicable and has placed reliance on the judgment of this Court in case of Ram Krisha Das Vs. Krishna Das Agarwal as reported in 1991 (1) ARC 557 wherein specific attention has been drawn to paragraph 6 of the judgment wherein fact of the case was that parties were real brothers and after partition in between them the accommodation in suit came to the share of the plaintiff and the revisionist continued tenant thereof. The allegation was that construction was made without permission but the court found that the alleged construction was made with the oral permission of the landlord and he is his brother; any written permission was not necessary. In this very para principle of waiver has been extracted placing reliance on the judgment in the case of Niaz Ahmad vs. IIIrd Additional District Judge, Aligarh and others, 1982 (1) ARC 231 that for about 5 years of the construction no objection was raised by the plaintiff except for the first time in the notice dated 19.01.1989 and therefore, the principle of waiver was applied by the coordinate Bench. However, the facts of this case are different inasmuch as neither there is relationship of a real brother or any blood relationship between the landlord and the tenant nor there is any evidence on record that plaintiff remained silent for a substantial period of time after raising of the alleged construction. In fact, in reply to the notice in para 3 present petitioner has mentioned that no construction was ever raised or any alteration was ever made by him and in fact, the house was in the same condition in which it was rented. Similarly, the issue of change of residential accommodation into commercial has been denied by the petitioner in his reply to notice. Therefore, plea of acquiscence or waiver will not be applicable in the present case and the facts of the case of Ram Kishan Das being different, ratio of that judgment is not applicable to the facts and circumstances of the present case.
Now dealing with the last limb of the argument that the revisional court erred in not applying the provisions of Order XLI Rule 27 C.P.C. while deciding the revision petition is concerned, petitioner has not placed on record any application under Order XLI Rule 27 C.P.C. The fact of the matter is that learned revisional court has placed reliance on the judgment of Lucknow Bench of this High Court in the case of Smt. Baqreedan @ Bhopalan vs. Additional District Judge, Lucknow and others as reported in 2015 (4) ADJ 202 (LB) which in para 8 specifically makes a mention of the fact that judgment in case of Jatindra Singh and another minor through mother vs. Mehar Singh and others, (2009) 27 LCD 582 as well as Hakam Singh vs. State of Haryana and others, (2009) 27 LCD 619 are the judgments of the Apex Court relating to regular appeals. It is mentioned that there is a specific provision contained in order L, i.e., the provisions of Order XLI Rule 27 is not applicable, in a Suit under Small Causes Courts jurisdiction. In this regard learned counsel for the petitioner has placed reliance on judgment of this Court in case of Smt. Savitri Devi and others vs. Ist Additional District Judge, Gorakhpur and others, 1994 (2) ARC 66 wherein it has been held that a court hearing revision under Section 25 of Provincial Small Causes Court Act does have inherent jurisdiction under Section 151 C.P.C. to permit additional evidence to be brought on record. However, the fact of the matter is that even for the exercise of jurisdiction under Section 151 C.P.C. petitioner who was revisionist before the court below was required to make out a case for admitting additional evidence meeting out the facts and circumstances as are provided under Order XLI Rule 27 C.P.C. to show that the contingencies as provided under Order XLI Rule 27 C.P.C. were available yet documents were not admitted by the revisional court. In any case, it is not the case of the petitioner that he had produced material before the revisional court to make out an exception under Section 151 C.P.C. or to prove prima facie case that circumstances were made out for taking additional evidence on record, therefore, the impugned judgment passed by the revisional court can not be faulted with and at this stage in a writ petition under Article 227, re-appreciation of facts is not permissible, therefore, this argument of the learned counsel for the petitioner that revisional court erred in not admitting the documents under Order XLI Rule 27 C.P.C. is not made out.
At this stage learned counsel for the petitioner submits that since court is dismissing his petition, tenant/petitioner be granted some reasonable time to vacate the premises.
Learned counsel for the respondent has no serious objection to this alternate prayer. Though petition is dismissed on merits but alternate prayer is accepted.
It is directed that petitioner/tenant shall vacate the suit premises on or before 30.04.2021 and shall handover vacant peaceful possession along with all arrears of rent on or before 30.4.2021.
In above terms, the petition is disposed off.
Order Date :- 3.12.2020 VS