Uttarakhand High Court
Unknown vs Mahant Santnand Singh on 25 November, 2021
AFR
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 07 of 2007
Gyaneshwar Prasad (deceased)
1/1 Smt. Sudesh, aged 59 years, w/o Late Sri
Gyaneshwar Prasad R/o Dera Shekhwa, Mayapur,
Devpura, Pargana Jwalapur, Tehsil & District Haridwar
1/2 Ashok Vishnoi S/o Late Sri Gyaneshwar Prasad,
aged 29 years, R/o Dera Shekhwa, Mayapur, Devpura,
Pragana Jwalapur, District Haridwar.
..............Petitioner
-versus-
1. Mahant Santnand Singh
2. Mahant Kulwant Singh
Both disciples Mahant Sarmukh Singh, Residents of
Derashekhwa Mayapur, Pargana Jwalapur,Tehsil &
District Haridwar.
3. Judge, S.C.C./Civil Judge (J.D.), Haridwar
4. Additional District Judge/III F.T.C., Haridwar
5. Baleshwar Prasad S/o Late Gokul Chand
6. Chandra Prakash S/o Chandra Prakash
S/o Late Gokul Chand
7. Smt. Baleshwari D/o Late Gokul Chand
W/o Sri Ved Prakash
All 5 to 7 residents of Derashekhwa, Mayapur,
Pargana Jwalapur, Tehsil and District Haridwar
8. Rajeshwar Prasad S/o Late Gokul Chand,
R/o Survey of India, Hathi Badkala Estate, Dehradun
..........Respondents
-2-
Date of hearing and Judgement : 25.11.2021
Advocates appeared in the case:-
For Appellant : Mr. Siddharth Singh, learned
counsel for the petitioners.
For Respondents : Mr. Suyash Pant, learned Standing
Counsel for the State.
Mr. Nikhil Singhal, learned
counsel for the respondent no.2.
Sri S.K.Mishra, J.
1. In this writ application, the petitioner being the tenant of the property in question has prayed for issuing a writ in the nature of certiorari quashing the order dated 17.01.1998 (Annexure-8), passed by respondent no. 3, i.e., learned Civil Judge (J.D)- cum-Judge, SCC Court, Haridwar, and the confirming the judgment passed by the Additional District Judge/3rd FTC, Haridwar (Annexure-10) on 30.11.2006.
2. The facts of this case may be narrated briefly as follows:
The property in question was let out to the father of the petitioner late Gyaneshwar Prasad about 50 years ago for a sum of Rs. 4.69 paisa. In the year 1988, the sole respondent (since deceased, substituted by respondent no. 1/1 & 1/2) filed an application under Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) -3- Act, 1972 (hereinafter referred to as 'the Act') with the prayer that the petitioner be evicted from the property in question as he has converted the use of the premises let out and there was a material alteration of the same without the consent of the landlord. For proper appreciation, the exact pleadings raised the plaintiff in the plaint at paragraph 3 and its consequence reply by the defendant-petitioner is reproduced herein below:
";g fd izfroknh ua0 1 us iz"uxr lEifRr fjgk;"k gsrq fdjk;s ij yh Fkh ysfdu mlus fcuk jvkeUnh oknh iz"uxr lEifRr esa vukf/kd`r :Ik ls rksM+ QksM+ djds rFkk jn~nkscny djds dejs ds chp nhokj cukdj mls nks Hkkxksa esa foHkDr dj fn;k gS rFkk ,d Hkkx esa O;olkf;d dk;Z izkjEHk dj jgsa gS rFkk dejs dh iwoZ dh vksj fLFkr nhokj dks rksM+dj njoktk yxk fn;k gS ,oa vukf/kd`r :Ik ls jlksbZ dk uofuekZ.k djds lEifRr ds ewyHkwr <+kaps esa ifjorZu djds uqdlku igqapk;k gS ftlls mldh dher ?kVh gSA^^ The aforesaid paragraph is translated by us, as follows:
That the defendant no. 1 was granted the rented premises for the purpose of residence but he without the consent of the plaintiff, un-authorisedly changed the property, constructed a wall between it by dividing it in two parts, and started using one of the part for commercial purpose and that he broke open the part of the wall sanding on the East side and put a door on it, and, thereafter un- authorisedly constructed a kitchen thereby changing the original nature of the property and thereby, damaged the property, which has reduced its value.-4-
At the para 10 of the written statement, appearing at page 26 of the brief, the defendant has responded to paragraph 3 as follows:
" ;g fd oknh dk vius okni= esa ;g rgjhj djuk drbZ xyr o vlR; gS fd viuh fdjk;snkjh okyh lEifRr esa dksbZ rksM+QksM+ fdlh fdLke dh gks ;k fd dksbZ jn~nkscny djds dejs ds chp nhokj cukdj mls nks Hkkxksa esa foHkkftr dj fn;k x;k gks ;k fd dejs dh iwoZ dh vksj fLFkr nhokj dks rksM+dj njoktk yxk fy;k gks ;k fd jlksbZ dk uofuekZ.k dj fy;k gks ;k fd fdjk;snkjh okyh lEifRr dks ewyHkwr <k¡ps ifjorZu djds dksbZ uqdlku igqapk;k gks ftlls mldh vly dher ?kVh gS cfYd vly okdk ;g gS fd oknh us tkucw>dj izfroknh dh fdjk;snkjh okyh lEifRr dk xyr fooj.k fn;k gS izfroknuh dh fdjk;snkjh esa ,d nqdku nks [kuh rFkk mlds ihNs ,d NksVk lk Vhuiks"k LVksj pyk vkrk gS] fdjk;snkjh okyh lEifRr esa izfnoknuh eksVj fjis;lZ dk dke Lons"k eksVj odZ"kkWi uke ls djrh gSA blds foijhr oknh dk leLr dFku loZFkk xyr feF;k o vekU;uh; gSA^^ It is translated as below:
"The defendant has not made any kind of alteration by breaking the let out property and that he has not put a wall dividing the property in to two parts and that he has not fixed a door on the Eastern part or erected a kitchen thereon. He submits that the plaintiff has made misleading statement in the plaint."
In course of the trial, the defendant- petitioner has been examined as DW1. In the cross- examination, appearing at page 41, he has stated that his age is 30 years and the tenancy is continuing before his birth. He could not say about the profession of his father when he took the -5- property on rent, the rent is Rs. 4.69 paisa per month. He has further stated that he cannot say the length and breadth of the property, but he admitted that on both the portions of the property shops are operating but he is, because of the compulsion, residing at the rear portion and that he is sitting in the shop since 1994, but latter stated that he is sitting since 1982-83. On the basis of such materials, the learned Civil Judge (S/D)-cum-Judge Presiding, SC Court came to the conclusion that there has been admission on the part of the defendant about the un-authorised alteration of the property, hence, he proceeded to decree the suit and passed orders for eviction and mesne profit.
3. The present petitioner before us challenged the order passed by the learned Judge, Small Cause Court, dated 17.01.1998, before the leaned District Judge, Haridwar, which was registered as SCC Revision No. 08 of 1998 and was transferred to the court of the learned 3rd Additional District Judge/FTC, Haridwar, who, by virtue of the order impugned in this case, on dated 30.11.2006 dismissed the revision application.
4. Mr. Siddharth Singh, learned counsel for the petitioner would argue that the learned Judge, SCC, has not properly appreciated the matter and without properly understanding the provision of class (c) Sub-Section 2 of the Act, and without -6- giving any finding regarding the issue of diminishing of the value of the said property because of such un-authorise changes in the property, has passed the order of eviction, which is liable to be rejected as it has not decided the matter properly.
5. Mr. Nikhil Singhal appearing for the private respondent would submit that though the learned Trial Judge has not given any finding on the issue of change of use of the tenanted premises for commercial purpose, has also made out a ground for eviction of the property. Learned counsel for the respondent would further submit that not only the petitioner has admitted in his cross-examination that he has put a door on the Eastern side of the tenanted premises, but also he has admitted the same in his Revision Application filed before the learned Additional District Judge as well as in this Court. He brings to the notice of this Court towards paragraph 12 of the Writ Petition, wherein the petitioner in a very clear terms, has stated that in any case, the alleged alteration and addition being 30-35 years old and the plaintiff/respondent nos. 1 & 2 or their predecessors kept mum and not raised any objection in this regard, the same has become lawful and will be treated to have been drawn with the consent of the landlord. He further pleads that plaintiff-respondent nos. 1 & 2 are estopped from raising any objection after 35 years on the principle of waiver and acquiescence.
-7-6. The learned counsel for the petitioner in his rebuttal would argue that there was no issue regarding the violation of clause (d) of Sub-Section 2 of Section 20 of the Act, and therefore, such a plea cannot be raised for the first time by the respondent in this case. However, he further admitted that as per Order L Rule 1, the provision of the Code are not applicable in this case at hand as far as casting of issues are concerned but he admits that in such cases, point for determination has to be framed and in this case, points for determination has not been framed.
7. Mr. Suyash Pant, learned Standing Counsel for the State was also heard.
8. Having considered the counsels' arguments, in the perspective of the pleadings raised, both in the Trial Court as well as in the Revisional Court and also before this Court, we are of the opinion that if there is a clear and unambiguous admission on the part of the defendant of the assertions made by the plaintiff. Such admissions are that best proof of the proof of facts admitted. In this connection, we rely upon the reported case of Nagindas Ramdas appellant vs. Parvat Ram Ichhram alias Brijram and others, respondents; reported in AIR 1974 Supreme Court 471, wherein at paragraph 26, the Hon'ble Supreme Court has held as follows:
-8-"*****************Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive they can be shown to be wrong."
9. Appling this principle in this case, we come to the conclusion that there is an evidentially admission at the stage of trial by the defendant himself when he examined as DW1 in this case. As quoted in the preceding paragraphs, he has admitted that he is using the property for running of two shops and that he is residing in the rear side of the property. It is also admitted by him that on the Eastern side of the wall he has put on a door. Such evidentiary admissions are not shown to be wrong or erroneous by the arguments advanced by the learned counsel
10. Secondly, it is further seen that the petitioner in his appeal under Section 25 of the Act has admitted that he has put on a door on the Eastern Side of the tenanted premises, which is also pleaded before this Court at paragraph of 12 of -9- the Writ Application though the petitioner- defendant claimed that such an action had taken place 30-35 years back and now the plaintiff- respondents are estoppel from raising such a plea. So, apparently from the records, it is clear that learned Trial Judge has come to right conclusion regarding the unauthorised alteration of the property. It is true that there is no finding regarding the diminishing value of the property because of such un-authourised constructions. However, in the succeeding paragraphs we will justify the Order of this Court, which it is proposing to pass.
11. It is not disputed by the learned counsel for the petitioner-defendant that the property has been let out for the residential purposes. It is also not disputed that the property is being used for commercial purposes and that two shops are running thereof and that he is residing at the rear part of the property and he has put a door on the Eastern wall of the property. It is also true that no point for determination was formulated by the learned Trial Judge on this aspect of the case.
In the case of Sri Gangai Vinayagar Temple and another vs. Meenakshi Ammal and others, (2015) 3 Supreme Court Cases 624, Hon'ble Supreme Court held that even if no issue is framed but the parties were alive to the pleadings and led evidence to that effect, material
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available on record can be considered and non framing of issue will not vitiate the trial. Though in the strict sense, Order L shall not be applicable to a suit tried by small cause court, still the principles of law, equity and good consensus can prevail and in such cases also, even there no point of determination framed by the Small Cause Court but evidences have been led, pleadings being raised by both the parties then a finding can be arrived at by either by trial court in the final judgment or by the revisional court or by the Writ Court in exercise of jurisdiction under Article 226 or 227 of the Constitution of India.
12. In this case, we see that actually property has been used for a different purpose than it was let out as there is no specific denial of this assertion of the plaintiff, by the defendant-petitioner. So, in all the fitness of things, suit of the plaintiff- respondent has rightly been decreed though for a different reason and for that we are not inclined to interfere with this.
13. This Court is of the opinion that, the provisions of Clause (c) Sub-Section (2) of Section 20 of the Act will not be applicable rather the provision of Section Clause (d) of Sub-Section (2) of Section 20 would be applicable. For the purpose of proper appreciation, the same is quoted below:
20. Bar of suit for eviction of tenant except on specified grounds. -
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(1)*************** (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely : -
(a)***************;
(b****************;
(c that the tenant has without the permission in writing of the land-lord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;
(d) that the tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the building, or has without the consent in writing of the landlord used it for a purpose other than such purpose, or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;
(e) that the tenant has sub-let, in contravention of the provisions of section 25, or as the case may be, of the old Act, the whole or any part of the building;
(f)*****************
(g)****************
14. Mr. Nikhil Singhal, learned counsel for the respondent has also relies upon a judgment of the Hon'ble Supreme Court in the case of Bharat Lal Baranwal vs. Virendra Kumar Agarwal, (2003) 2 Supreme Court Cases 343, wherein the Hon'ble Apex Court took into consideration the aforesaid provision and has held that the property given to the tenant for the purpose of running a business was used for manufacturing purposes then this provisions Clause (d) Sub-Section (2) of Section 20 of the Act will come into play and the tenant would be liable to be evicted. It is appropriate to take note of the extract observations made by the Hon'ble Apex Court in Mundri Lal vs. Sushila Rani (Smt.) and
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another, (2017) 8 Supreme Court Cases 609. Para 12 to 16 of this judgment are as follows:
"12. The impugned judgment had been passed by the High Court on hearing the parties afresh.
13. Concededly, the appellant filed an application for adduction of additional evidence in terms of Order XLI Rule 27 of the Code of Civil Procedure. The High Court refused to exercise its discretionary jurisdiction in the matter stating that the requirements of the said provision had not been fulfilled.
14. In regard to the submission that the said Act was applicable since the High Court was of the view that the findings of the learned Trial Judge cannot be said to be wholly unsustainable attracting the revisional jurisdiction of the Court holding :
"Besides, I cannot loose sight of the fact that it is a findings of fact arrived at by the Court below which cannot be interfered in exercise of revisionist jurisdiction. I am conscious of the fact that this is a revision under Section 25 of the Provisional Small Causes Court Act but this alone would not entitle this Court to reassess the evidence and upset a finding of fact. It is also to be noted that while recording the findings on the question as to whether the building was new building or an old building, it was taken into consideration that previously the building was assessed at the rental value of Rs. 330/- per annum, subsequently after the new construction, the value was enhanced to Rs. 22,800/- w.e.f. 1.4.1978. This was done taking into substantial additions made to the existing building. This was earlier let out to one Satish Chander Jain for residential purposes and after he vacated, major additions and alterations have been made and it was converted into commercial building and was let out to the tenant for commercial purpose. The trial Court took into consideration the oral evidence as well as documentary evidence that was placed before the Judge Small Causes Court. I do not find any illegality what so ever in the impugned judgment which calls for interference. This Court interfere under section 25 Judge Small Causes Court only, in the event learned counsel could establish that the findings of the trial Court was perverse and not sustainable in law. Admittedly the building in question is subject to assessment of municipal taxes and date of construction will be assessed on the basis of assessment as well as other
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factor and evidence to be taken into consideration, which was admittedly been done by the trial Court and this Court at the time when this civil revision was decided on 24.8.2004, since, the findings of the trial Court regarding the date of construction of the building was confirmed in civil revision and upheld by the Apex Court, I am of the view that it cannot be reopened in this second innings. The Apex Court has only remitted the case to consider the other points which were not canvassed when the revision was decided previously. In the fact and circumstances, what has been discussed above, I do not find it a fit case for interference. The judgment dated 20th October, 1987 is absolutely a legal. The decree for eviction and arrears of rent are confirmed. The civil revision is accordingly dismissed."
15. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant would submit that the High Court committed a serious error insofar as it failed to take into consideration that the learned Judge, Small Causes Court had committed an error of law in recording a finding of fact on issue No.1 upon taking into consideration irrelevant facts and ignoring material evidence. Had such facts which had been brought on record, Mr. Ramachandran would submit, been taken into consideration, it could have been shown that most of the constructions were raised on the first floor and not on the ground floor. It was urged that the finding recorded by the learned Trial Judge that the existing building had undergone substantial addition is vitiated in law, as the same was arrived at without any basis, particularly when in terms of clause (c) of Explanation I appended to Section 2(2) of the Act, it was necessary to record a finding as regards total existing construction vis-a-vis total new addition which would lead to the conclusion that new constructions within the meaning thereof have been made.
16. The High Court, it was contended, having regard to the fact that an admission had been made in a rejoinder filed by the respondent in a pleading made in another litigation in the year 1996 ought to have allowed the application for adduction of additional evidence."
15. On the basis of such discussion, this Court is of the opinion that there appears to be valid and cogent grounds for coming to the conclusion that the petitioner has used the property for a purpose
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other than for which the property was let out to him and hence, he is liable to be evicted there from.
16. In that view of the matter, the Writ Application is dismissed being devoid of merit. Interim order passed earlier shall stand vacated.
17. There shall be no order as to the costs.
(S.K.Mishra) Judge KKS