Allahabad High Court
Islam vs Saurabh Singh And 3 Ors. on 19 November, 2013
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - A No. - 62904 of 2013
Petitioner :- Islam
Respondent :- Saurabh Singh And 3 Ors.
Counsel for Petitioner :- Faizan Ahmad,S.F.A.Naqvi
Counsel for Respondent :- C.S.C.
Hon'ble Ran Vijai Singh,J.
Heard Sri S.F.A.Naqvi, learned counsel for the petitioner.
By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the judgment and decree dated 3.8.2013 and 16.5.2012 passed by the Additional District and Sessions Judge, Court No. 4, Meerut in S.C.C. Revision No. 23 of 2012 (Islam Vs. Saurabh Singh and others) as well as the Judge Small Causes Court in Case No.105 of 2010 (Saurabh Singh and others Vs. Islam) respectively.
Vide judgment dated 16.5.2012, suit filed by the respondents, for payment of arrears of rent and eviction of the petitioner from the accommodation in dispute, has been decreed, whereas by the subsequent order dated 3.8.2013, revision filed by the petitioner challenging the judgment and decree dated 16.5.2012 has been dismissed.
The facts giving rise to this case are that it appears the respondents have purchased the building in dispute in the year 2003 and became landlord of the house. The petitioner, who was sitting tenant of one room on the western side of the building along with a latrine and sahan, has paid rent upto April, 2008 and thereafter since May, 2008, he has stopped the payment of rent. Consequently the landlord has given a notice under Section 106 of Transfer of Property Act terminating the tenancy of the petitioner and also for payment of arrears of rent with effect from May 2008 to October, 2010 etc. The notice was served upon the petitioner on 6.10.2010 but he has neither paid the rent nor vacated the premises. Consequently, the respondents have filed S.C.C. Suit No. 105 of 2010 with the allegations that the petitioner has not paid the rent since May, 2008 to October 2010 with the prayer to evict the the petitioner from the accommodation in dispute and thereafter deliver the possession of the accommodation in dispute to the plaintiffs/respondents. The prayer has also made for decreeing the suit for payment of rent of Rs. 603.35 from 1st May, 2008 to 5th November, 2010 and damages at the rate of Rs. 28 per month.
The petitioner had filed his written statement denying the plaint allegations by stating that no rent is due.
After exchange of pleadings, the trial court has framed two issues :- (i) As to whether the petitioner has defaulted in payment of rent to the plaintiffs/respondents and is liable to be evicted. (ii) second issue was with regard to relief. From the respondents' side, the respondent no. 1, Saurabh Singh was got examined as witness and from the defendant's side, the petitioner himself was examined. Apart from the statements, copy of notice 7-ga dated 2.10.2012 and its carbon copy 8-ga and receipt 9-ga were filed before the court below by the plaintiffs/respondents. From the defendant/petitioner's side, no documentary evidence was produced.
The trial court has come to the conclusion that the defendant/petitioner has not paid any rent since May 2008 to October 2010 and thereafter decreed the suit and directed the defendant/petitioner to vacate the premises within thirty days by handing over the possession of the accommodation in dispute to the plaintiffs/respondents. The suit was also decreed for payment of arrears of rent.
Aggrieved by the judgment and decree dated 16.5.2012 passed by Judge Small Causes Court, the petitioner has filed revision, that too was dismissed on 3.8.2013.
Learned counsel for the petitioner has very vehemently contended that both the courts below have erred in decreeing the suit of the plaintiff but he could not assail the findings by showing any material on record that the finding recorded by the courts below with respect to default in payment of rent is in any way perverse. Concurrent finding of fact has been recorded by the courts below that the petitioner has not paid any rent since May 2008 to October 2010 and is in default of payment of rent, therefore the finding recorded by the courts below cannot be interfered under Article 226 of the Constitution of India in view of the law laid down by this Court in Mahavir Prasad Narendra Kumar Jain (M/S.) and another Vs. Seventh Additional District Judge, Kanpur Nagar and others, 2002 (U.P.)RCC 59, Nakeem Vs. District Judge, Mathura and others 2004 (U.P.) RCC 186 and Subhash Chand Sharma Vs. Ninth Additional District Judge, Agra and others 2002 (U.P.) RCC 655.
The writ petition fails and is hereby dismissed.
In the last, learned counsel for the petitioner submitted that some reasonable time may be given to the petitioner to vacate the premises.
Considering the submissions of learned counsel for the petitioner, it is provided that in case, the petitioner files an undertaking within three weeks from today before the Judge Small Causes Court that he will vacate the premises by 28th February, 2014, the petitioner will not be evicted provided he deposits Rs. 500/- per month towards damages for the months of November, December, January and February for use and occupation of the accommodation in dispute.The damages of the month of November be deposited by 10th December. Likewise, the damages of December be deposited by 10th January and the damages of January and February be deposited together by 15th February. The amount so deposited may be withdrawn by the respondents landlord. In case of default, either in filing undertaking or making default in payment of damages, the interim protection extended to the petitioner shall stand automatically vacated and decree be executed.
Order Date :- 19.11.2013
Pratima
