Smt. Kammo vs Chandra Shekhar Gupta
2013 Latest Caselaw 5681 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(AFR)(Reserved)
 
Court No. - 23
 

 
Case :- CIVIL REVISION No. - 163 of 2008
 

 
Revisionist :- Smt. Kammo
 
Opposite Party :- Chandra Shekhar Gupta
 
Counsel for Revisionist :- V.P.Nagaur
 
Counsel for Opposite Party :- Suresh Chandra,D.K. Shukla
 

 
Hon'ble Sudhir Kumar Saxena,J.

1.This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 ('Act' in short) is directed against the judgment and decree dated 17.09.2008 passed by Sri P.P. Tiwari, Additional District Judge/Small Cause Courts, Lucknow decreeing the SCC Suit No. 11 of 2006 for the ejectment of defendant as well as payment of decretal amount and damages for future use and occupation.

2.I have heard Sri V.P. Nagaur, learned counsel for the revisionist and Sri D.K. Shukla, learned counsel for the respondent.

3.Briefly stated facts are that Chandra Shekhar Gupta filed a Suit (SCC Suit No. 11 of 2006) for the ejectment and the arrears of rent alleging that he was owner and landlord of House no. M-1A, Gol Market, Mahanagar, Lucknow, Sri Ali Raza was tenant of the basement of the premises on a monthly rent of Rs. 2400/- and other taxes who died in the year, 1997, whereafter his wife Smt. Kammo approached the plaintiff to continue the tenancy. Consequently, fresh lease deed was executed on 12.10.1997 for a period of three years. Said period expired on 12.10.2000 but neither defendant approached for renewal of the tenancy nor she vacated the premises. From July, 2004 the defendant stopped payment of the rent. Tenancy started from first of every month to last day of the month. Provisions of U.P. Act No. 13 of 1972 were not applicable. Plaintiff served a notice dated 18.03.2005 demanding arrears of rent whereupon a sum of Rs. 6400/- was paid. By notice dated 31.12.2005 the tenancy was terminated on the expiry of 30th day from the receipt of the notice asking tenant to vacate the premises. Notice determining tenancy was served on 02.02.2006 which ultimately led to cause of action. Sum of Rs. 71,545/- was claimed as arrears of rent from July, 2004 to December, 2005. Moreover, ejectment of the tenant from premises in dispute was claimed. Further prayer for Rs. 4,000/- as damages from 03.02.2006 to 10.02.2006 and damages for future use at the same rate was also made.

4.Suit was filed on 15.03.2006. On 21.03.2006 defendant appeared and prayed for time for filing written statement mentioning that rent is being deposited under Section 30(1) of the U.P. Act no. 13 of 1972. On 17.04.2006 defendant prayed for further time for filing written statement whereupon 15.07.2006 was fixed. On 15.07.2006, defendant neither appeared nor filed written statement and sought adjournment which was strongly opposed by the plaintiff. Trial court, holding that neither written statement has been filed nor any deposit contemplated under Order XV Rule 5 CPC was made, struck off the defence of tenant and fixed 14.08.2006. On 14.08.2006, 04.09.2006 fixed. On 04.09.2006, an application under Order IX Rule 7 CPC was moved, whereupon objections were invited. This application was rejected on 30.10.2006 on merits.

5.Plaintiff led his evidence by examining himself as PW-1. On 13.02.2007 defendant moved an application under Order XIX Rule 1 CPC for cross-examination of plaintiff-witnesses which was allowed. Plaintiff was cross-examined on 23.04.2007. However, owing to absence of PW-2, the said witness was discharged by the plaintiff. On 23.07.2007, defendant moved an application for recalling PW-1 Chandra Shekhar for further cross-examination. This application was rejected on 23.07.2007.

6.Challenging the orders dated 23.07.2007, 30.10.2006 and 15.07.2006 defendant filed Writ Petition No. 3871 of 2007 in which initially an interim order was passed on 30.01.2007. However, petition was dismissed for non-prosecution of the petitioner and interim order was vacated. Application to recall this order is said to be pending for disposal.

7.Trial court after discussing the material on record, framed following points for determination:

(I) Whether plaintiff was landlord of the premises and defendant was tenant ?

(II) Whether defendant committed default in payment of rent ?

(III) Whether notice of determining tenancy was given and it was served upon defendant ?

8.Trial court after considering the evidence came to conclusion that defendant was tenant of the premises @ Rs. 2400/- per month and plaintiff was landlord thereof. Defendant has not paid the rent since July, 2004, notice was valid and duly served upon the defendant which was also replied by the defendant. Learned Judge decreed the Suit with costs directing defendant to vacate the premises within two months and pay the decretal amount as well as damages for further uses. This very decree has been impugned in this revision.

9.Learned counsel has submitted that court below completely overlooked the provisions of Order VIII Rule (1) Order XV Rule (5) CPC and in the absence of written statement, no order under Order XV Rule 5 could be passed.

10.It is further submitted that arrears of rent have been calculated on the basis of unregistered lease dated 12.11.1997 without giving opportunity of hearing and taking written statement on record.

11.Third submission is that learned Judge has not framed issues whether defendant-revisionist was tenant @ Rs. 640/- per month and whether unregistered document/lease-deed was admissible in evidence.

12.Copy of the written statement which defendant tried to file on subsequent date shows that defendant has admitted her to be tenant of the premises. In para 2 of the written statement it is mentioned that "this much is correct that the defendant's husband Ali Raza was a tenant of the plaintiff in the basement of the premises and after his death, the defendant has inherited the tenancy rights in the said accommodation". This written statement was sought to be filed alongwith application but was not taken on record as defence had already been struck off. The defendant had deposited the rent before Civil Judge (J.D.), Lucknow in Misc. Case No. C-162 of 2005 alleging that she was tenant of the premises @ Rs. 640/- per month and since plaintiff is not accepting rent, she may be permitted to deposit the same in the court. Plaintiff's contention was that defendant was tenant @ Rs. 3300/- per month. Learned Civil Judge permitted defendant-tenant to deposit the rent there. Nowhere defendant has disputed the tenancy. From this material, it is apparent that defendant admits herself to be tenant of premises.

13.U.P. Act No. 13 of 1972 is not applicable is also not disputed by the revisionist-defendant. Landlord had determined the tenancy by giving notice which was received by the tenant, is also not denied. Only this much is said that notice was misconceived.

14.From the above, it is apparent that defendant being tenant and Rent Control Act [Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972] being inapplicable, the landlord had a right to seek ejectment after terminating the tenancy by giving notice. In the case at hand, 30 days notice was given which is valid and duly served. Since premises was not vacated, landlord had a right to seek ejectment, therefore, the impugned decree so far as ejectment is concerned, cannot be assailed and it cannot be said that impugned decree is not in accordance with law.

15.Defence of defendant was struck off vide order dated 15.07.2006. This order was sought to be recalled by moving application under Order IX Rule 7 CPC. Said application was also dismissed on 30.10.2006. Order dated 30th October, 2006 has not been set aside, thus, said order became final.

16.It appears that a revision was filed but said revision was dismissed on 08.07.2008 and Special Appeal no. 449 of 2008 was filed by defendant but said Special Appeal was also dismissed on 12.08.2008.

17.A writ petition was also filed challenging the orders dated 15.07.2006, 30.10.2006 and order dated 23.07.2007 whereby application of defendant to recall PW-1 for further cross-examination was rejected. All these three orders were challenged in the writ petition no. 3871 of 2007. In writ petition initially interim order was passed to the effect that further proceeding before trial court may go on but final order will not be passed. However, this writ petition was dismissed for non-prosecution on 30.11.2007 and interim order was discharged.

18.From the above, it is, thus, apparent that order striking off defence could not be successfully challenged anywhere. It is not disputed that defendant had appeared through counsel on 21.03.2006 and sought time to file written statement but it was neither filed within a month from the date of service of summon as provided under Order VIII Rule 1 CPC nor was filed even within 90 days from the date of service of summon. Consequently, trial court was justified in proceeding ex-parte.

19.Moreover, in Para 4 of the writ petition, it is admitted that defendant had appeared before the court on 21.03.2006. In the application moved under Order IX Rule 7 CPC, it is stated in Para (1) that summon was served in the month of March, 2006 and his counsel had sought adjournment on 21.03.2006, whereupon 17.04.2006 was fixed for filing written statement. Thus, admitted position appears to be that despite service of summon, written statement was not filed in stipulated period even upto 15.07.2006.

20.Moreover, Order XV Rule 5 CPC makes it incumbent upon the lessee to deposit the entire amount admitted by him to be due together with the interest thereon @ 9% per annum at/on/before first hearing of the Suit. Tenant is further required to deposit continuously during the Suit, monthly amount due within a week from the date of its accrual, whether he admits any amount to be due or not.

21.Order XV Rule 5 CPC is reproduced below:

" 5. Striking off defence for failure to deposit admitted rent-(1) in any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or monthly mount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike off his defence.

22.Explanation to Order XV Rule (5) mentions that first hearing means the date fixed for filing written statement and the entire amount admitted means the entire amount of rent or compensation for use of accommodation calculated at the admitted rent adjusting deposit made under Section 30 of the U.P. Act no. 13 of 1972. It is admitted position that no monthly amount was deposited till 15.07.2006.

23.Submission of learned counsel that defendant had deposited the rent under Section 30 of the U.P. Act no. 13 of 1972 and it can be adjusted towards arrears claimed by the plaintiff has substance. Similarly, any other amount paid can also be adjusted as provided in Explanation 2. However, amount other than the admitted rent till the filing of Suit and monthly amount due (as claimed) has to be deposited and failure to deposit entails the consequence provided as above.

24.Since no amount was deposited till 15.07.2006 in the Suit itself, trial court was fully justified in striking off the defence. Since neither written statement was filed nor any amount including monthly amount was deposited, court below had exercised its discretion under Order XV Rule 5 CPC which cannot be said to be arbitrary or unauthorized by law.

25.Order passed on the application moved under Order IX Rule 7 CPC, is also being examined. The reasons given that former counsel had not intimated defendant has not been found to be believable by the trial court. Trial court further recorded finding that admittedly appearance has been put in on 21.03.2006 and date was given on the request of the defendant. Failure to file the written statement was deliberate act, as such order passed by court on 30.10.2006 also cannot be said to be illegal.

26.It is relevant to mention here that application under Order IX Rule 7 CPC was moved on 04.09.2006 while it should have been moved on/before next hearing of the Suit. On 15.07.2006, 14.08.2006 was fixed and on 14.08.2006, 04.09.2006 was fixed for evidence, as such the application was moved after next hearing.

27.On closure scrutiny, order striking off the defence and the refusal to set aside the order to proceed ex-parte are found to be in accordance with law. Although, these orders are not under challenge in the instant revision, however, while hearing the revision, these orders were also assailed, as such above discussion has been made.

28.Since defence was struck off, considering the oral as well as documentary evidence which included copy of the notice sent to the tenant (C-26), reply of the notice sent by defendant-tenant (C-27), copy of the lease, the trial court was fully justified in decreeing the Suit.

29.So far as lease is concerned, not much turns on that as tenancy is not disputed. What is disputed is rate of rent. Since plaintiff has proved the rate by his testimony i.e. notice and his statement on oath, even if lease-deed is not considered, relief cannot be denied. A Division Bench of this Court in the case of Zarif Ahmad and another Vs. Satish Kumar and another reported in [AIR 1983 Alld. 164] relying upon Section 49 of the Indian Registration Act said that unregistered document too can be looked into for a collateral purpose. This Division Bench referred the decision of Hon'ble Apex Court [AIR 1963 SC page 70] in the case of Padma Vithoba Vs. Mohammad Multani wherein it was held that even unregistered document can be used to show the character of possession of the vendee. In the case of M. Chelmayya Vs. M. Venkataratnam [AIR 1972 SC 1121], Hon'ble Apex Court has taken a view that under the proviso to Section 49 of the Registration Act, Court can admit any unregistered document as evidence of a collateral transaction. There is enough material to show that defendant was tenant of the premises and plaintiff has from his uncontroverted evidence established that rate of rent was Rs. 2400/- per month. Consequently, this submission also has no force.

30.Lastly, learned counsel submitted that trial court had not framed issues. This point does not arise as there was no written statement on record, taking notice whereof issues could be framed. Moreover, Small Cause Court is not required to frame issues on the exchange of pleadings, it is required to state points for determination in the judgment.

Judgment of trial court shows that all the relevant points for determination were framed.

31.A Single Judge in the case of Shiv Shanker Vs. Smt. Shashibala and another, 2010 (1) ARC page 90 has held that there is no such provision in the Provincial Small Causes Court Act and the Judge, Small Causes need not frame issues while deciding the suit instituted in his Court. If issues are framed, parties concerned will be able to know on which point the evidence is to be led, but no Court has said that it is a mandatory upon the Judge, Small Causes Court to frame issues and if issues are not framed, the judgments are liable to be set aside only on this ground.

32.In the case of Yasin and others Vs. 1st Additional District Judge, Bijnor and others, ARC, 1997 (2), page 112, this Court has taken the view that it is nowhere laid down in the Code of Civil Procedure or Provincial Small Cause Courts Act that the Judge, Small Cause need not frame issue while deciding the suit instituted in its Court. The framing of the issues will narrow down the points in dispute.

33.Hon'ble Apex Court in the case of Rameshwar Dayal Vs. Banda (dead) through Lrs., ARC 1993 (1), page 249 has interpreted Order XX Rule 4(1) of the CPC. "Points for determination" referred to in Order XX Rule 4(1) are obviously nothing but "issues" contemplated by Rules 1 and 3 of Order XIV of the Code. Hon'ble Court has specifically held that the present decision of the Small Causes Court is not a judgment within the meaning of Section 2(2) read with Section 2(9) of the Code. In para 23, Hon'ble Apex Court has held as under:-

"It is not disputed that in view of the provisions of Section 17(1) of the Provincial Small Causes Court Act, the Code is applicable to Small Causes Court except where it is otherwise provided either by the Code or the said Act. Apart from Rules 4(1) and 5 of Order XX of the Code, on this count also, it was obligatory for the Small Causes Court, in the present case, to state the points for determination and give its finding or decision on each of the said points. Hence the present decision of the Small Causes Court is not a judgment and a decree in the eye of law and is, therefore, non est as far as the respondent is concerned."

34.From the above, it is apparent that in the case of Rameshwar Dayal even point for determination were not framed and in para 23 Hon'ble Court says that it is obligatory for the Small Causes Court to state the points for determination and give its finding.

35.In another case reported in 1997, ARC (1) 560 (National Insurance Vs. Anil Kumar Agrawal and others), it is held that it is not at all the intention of Order 20 Rule 4(1) of CPC that point for determination should be framed immediately on the filing of the pleadings.

36.Order 14 of the CPC provides for settlement of the issues and in sub-rule (3) it is mentioned that each material proposition affirmed by claimant party and denied by other shall form subject to distinct issue. Relevant sub-rule (5) of the order is being reproduced below:

"(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statement, if any, and [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend."

37.It is, thus, apparent from the perusal of the Order XIV Rule 5 that after reading the pleadings at the first hearing of the suit, the court is duty bound to frame issues on which decision of case is dependent.

38.Section 17 of Provincial Small Cause Courts Act refers to the provision of CPC which are applicable to the Judge, Small Cause Court. Section 17(1) of the Act is being quoted herein below:

"The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall have in so far as it is otherwise provided by the Code or by this Act be the procedure followed in the Court or Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits."

39.From the above, it is apparent that if something is provided otherwise in the CPC, then that excepted part will not be applicable to the Court of Small Cause.

40.Order XX Rule (4) CPC lays down that judgment of Small Cause Court need not contain more than the points for determination and the decision thereon.

41.Order 50 of the CPC deals with the provisions of Small Causes Courts Act and mentions the provisions of CPC which will not extend to the court constituted under the provisions of Small Cause Courts Act, 1987. Order 50 Rule 1(a)(iii) deals with settlement of issues.

42.It is, thus, apparent that Order 14 CPC which provides for settlement of issues will not apply to the Judge, Small Cause Courts Act. Purpose of Small Cause Courts' Act is to ensure expeditious disposal of the matters cognizable by such courts.

43.In the circumstances, joint reading of both the enactment will show that Judge Small Cause Court is not bound to frame issues. However, its judgment must contain points for determination and the findings thereon. If judge Small Cause Courts framed issues in a particular case, there is no illegality but if he has not framed any issue but his judgments contains points for determination, it cannot be said that judgment suffers from any error of law. The Apex Court in the case of Rameshwar Dayal specifically observes that it is obligatory for small cause court to state points for determination and give its finding or its decision on each of said point. Apex Court has nowhere stated that court is duty bound as contemplated under Order 14 Rule (5) of the CPC to frame issues immediately after exchange of pleadings. A reference may also be made to this decision of Hon'ble Apex Court in the case of Advaitanand Vs. Judge Small Cause Court, Meerut 1995 (3) SCC 407.

44.In view of the above, it is apparent that Small Cause Court is not supposed to frame issues after exchange of pleadings. It is duty bound to frame points for determination and give finding thereon in the judgment. Case referred by counsel for revisionist [Akhil Kumar Jain Vs. Smt. Sharda Devi {2011(88) ALR 682}] is distinguishable on facts as in that case application to frame issues was rejected. I am supported by a decision of this Court reported in 2013(2) ARC 376 (Yasin and another Vs. Murari Lal).

45.In view of the above discussion, this Court is of the view that defendant is tenant of the premises. U.P. Act No. 13 of 1972 was not applicable. Tenancy was terminated by valid notice. Plaintiff had established by his evidence that rate of rent was Rs. 2400/- per month. Judge Small Causes Court was fully justified in passing the decree and it cannot be said that decree is not in accordance with law.

46.In the case of Kr. Baldevji Vs. 11th Additional District Judge, Bulandshahr and others [2003(21) LCD 831], tenant had denied any amount due to landlord.

47.In the case of O.V.S. Dhaka Vs. Raj Kumar Tyagi and another [ARC 1982, page 307] it is stated that order striking off defence can be challenged in the revision filed against the ultimate decision of the Suit. It will be apparent that this Court has considered the validity of the order passed under Order XV Rule 5 CPC.

48.AIR 1981 SC 1657 is authority for proposition that Order XV Rule 5 CPC confers a discretion for striking off evidence, it does not obligate it to do so in every case of default.

49.Trial court has exercised its discretion in a particular manner permissible under law. Moreover, no representation was made oral or otherwise before passing the order dated 15.07.2006.

50.The case of Rajendra Kumar Verma and another Vs. Smt. Padma Jindal and another [2006(3) AlJ 38] was decided on the facts in particular case.

51.A Bench in the case of Hari Shankar and others Vs. Rao Girdhari Lal Chowdhury [AIR 1963 SC 698] considered the scope of Section 35 of the Dehli and Ajmer Rent Control Act. While considering Section 25 of the Provincial Small Cause Courts Act, it is to be ensured that miscarriage of justice has not been done and its scope is wider. This Court has considered entire material available on record to see whether impugned decree is in accordance with law or not.

52.Decisions of Hon'ble Apex Court given in the case of Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and others [AIR 2006 SC 396] and in the case of Kailash Vs. Nanhku and others [AIR 2005 SC 2441] are authority order under Order VIII Rule 1 CPC.

53.In the case at hand, trial court had struck off the defence under Order XV Rule 5 CPC which is independent provision.

54.On the other hand, learned counsel for the landlord submitted that landlord is 84 years old. Tenant Ali Raza had taken the premises for commercial purpose. Tenant has two other show-rooms of furniture. Landlord even at this age could not get his house vacated which is situated in a commercial area and would fetch at least Rs. 30,000/- per month as rent as notified by the Collector. Taking advantage of landlord's old age, defendant has harassed him.

55.It is further contended that admittedly, case was allowed to proceed ex-parte. Thereafter, intentionally for delaying the process, a delayed application for recalling the order was moved, thereafter revision was filed, then special appeal filed. Again she challenged all the orders by way of writ petition and allowed it to be dismissed in default. Application for recalling the same has been filed. This tenant has adopted all possible means to scuttle and delay the decision of seat. Landlord had contested all the applications and cases, as such, this revision may be dismissed with exemplary cost. Tenant had not only participated in the proceeding but also cross-examined the witness, argued the case. Tenant is already doing business of furniture from another shop situated in M-1A, Gol Market, Mahanagar, Lucknow.

56.It is also submitted that even, in pursuance of interim order passed by this Court staying the operation of the decree, entire amount of rent/damages has not been deposited and she did not deposit any amount from November, 2008 to August, 2011. This Court does not feel necessary to go into all these issues as trial court at execution stage will consider everything regarding arrears and damages due to be paid.

57.In view of the above discussion, this revision is dismissed with costs.

Order Date :- 11/09/2013

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