Sudhir Agarwal vs Madan Mohan
2015 Latest Caselaw 5640 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Court No. - 5
 

 
Case :- S.C.C. REVISION DEFECTIVE No. - 249 of 2015
 

 
Revisionist :- Sudhir Agarwal
 
Opposite Party :- Madan Mohan
 
Counsel for Revisionist :- Vibhav Dutt Oja,Vishnu Dutt Ojha
 
Counsel for Opposite Party :- Anshul Kumar Singhal
 

 
Hon'ble Surya Prakash Kesarwani,J.

Heard Sri V.D.Ojha, learned counsel for the defendant-revisionist and Sri V.K. Agrawal holding brief of Sri Anshul Kumar Singhal, learned counsel for the plaintiff-respondent.

This revision has been filed challenging the judgement and order dated 8.10.2015 passed by the Court of Small Causes (Court No.5), Hathras in SCC Case No.11 of 2006 (Madan Mohan Sharma Vs. Sudhir Agarwal).

Briefly stated the facts of the present case are that the plaintiff-respondent sent a notice dated 8.6.2005 followed by another notice dated 9.6.2005 to the defendant-revisionist due to non payment of rent and asked him to vacate the premises in question. Undisputedly, the defendant-revisionist is a tenant in the disputed property which is a Dharamshala. He has neither paid rent to any person after receipt of the aforesaid notice nor has deposited the rent in the Court. He raised the dispute with regard to title of the plaintiff-respondent and alleged that one Sri Radha Raman is the owner of the disputed property, who and the plaintiff-respondent are the grand sons of one Sri Net Ram, who owned the disputed property.

It appears that Paper No.49-C was filed in evidence which is a registered Waqfnama dated 1.1.1945 executed by one Sri Net Ram, who had two sons namely, Sri Ram Narayan and Damodar Das. An agreement dated 20.11.1974 filed as Paper No.52-C was also executed by Sri Netram for the management of Dharamshala in question appointing his son Sri Damodar Das as Mutwalli with the provision that mutwalliship shall continue in his generation in the male line.

It also appears that some dispute arose with regard to the title and management of the Dharamshala in question and as such a Suit No.201 of 2005 was filed by the plaintiff-respondent against the aforesaid Sri Radha Raman along with two other brothers. The said suit was decreed by the Court of Civil Judge, Hathras by judgement and decree dated 19.2.2010 and the plaintiff-respondent was declared to be the manager of the shops and Dharamshala in question.

In the impugned judgement, the Court below considered the evidences on record including the judgement and decree dated 19.2.2010 passed by the Court of Civil Judge in Original Suit No. 201 of 2005 and recorded a finding of fact that there is no dispute of title, since the plaintiff-respondent has been declared to be the manager of Dharamshala in question.

It is the admitted case of the defendant-revisionist that after the notice given to him by the plaintiff-respondent on 8.6.2005, he has neither paid rent to any person nor has deposited the same in the court. It is not the case of the defendant- revisionist that any suit for recovery of rent and ejectment was filed by Sri Radha Raman or any rent was demanded by the aforesaid Sri Radha Raman from him.

The sole contention of the learned counsel for the defendant-revisionist is that against the judgement dated 19.2.2010 passed in Original Suit No.201 of 2005, Madan Mohan Sharma v. Radhey Shyam and others, a First Appeal No.201 of 2005, Radhey Shyam and others v. Madan Mohan Sharma was filed in which an order dated 27.5.2010 was passed as under :

"Admit.

Issue notice.

In the meantime, status shall be maintained regarding nature and title."

He, therefore, submits that in view of the aforesaid interim order passed by this Court in First Appeal No.213 of 2010, the Court below could not have held the plaintiff-respondent to be the landlord of the disputed property. In support of his submission he relied upon the judgements of this Court in the case of Virendra Prasad Shukla v. Ram Swarup and others, 1983 ARC-179 (Paragraph-4) and in the case of Mahendra Pal Singh and others v. District Judge, Jhansi and another, 2004(1) ARC 697.

Learned counsel for the plaintiff-respondent supports the impugned judgements and submits that the operation of the judgement dated 19.2.2010 passed in Original Suit No.201 of 2005 was not stayed by the High Court in First Appeal No.213 of 2013. He further submits that even if an interim order is granted, the judgement does not wipe out and it continues. He further submits that undisputedly, the defendant-revisionist is a tenant in the property in question of which plaintiff-respondent has been declared to be the manager by judgement of the Court of Civil Judge, in Original Suit No.201 of 2005. He submits that the court below, in the impugned judgement, has recorded a clear finding of fact that during the course of cross examination, the defendant-revisionist has stated that after receipt of the notice he has not paid any rent either to Radha Raman or to any one and has also not deposited it in the court.

I have carefully considered the submissions of the learned counsel for the parties.

Undisputedly, the facts as briefly noted above, clearly shows that the defendant-revisionist is a tenant in a portion of the property in question which is a Dharamshala. During this cross examination the defendant-revisionist admitted that he has not paid rent to the aforesaid Sri Radha Raman after the notice dated 8.6.2006 given by the plaintiff-respondent nor deposited it in the court. The question of title stood decided by the judgement of Civil Judge dated 19.2.2010 in Original Suit No.201 of 2005. The operation of the said judgement has not been stayed in First Appeal No.213 of 2010.

That apart the effect of an interim order has been well settled by the Hon'ble Supreme Court by laying down the law in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (1992) 3 SCC-1 (para 7 and 10) as under :

"7. The first question arises in both the appeals inasmuch as the order of the learned Single Judge of the High Court dated August 14, 1991 for winding up of the appellant- company as well as the order of the Division Bench of the High Court dated November 6, 1991, which are under challenge in Civil Appeal No. 126 of 1992, were passed after the passing of the stay order dated February 21, 1991 by the High Court. Similarly in Civil Appeal No. 2553 of 1991 the revision petition filed by the appellant-company against the order of the XII Additional Small Cause Judge, Bangalore allowing the Eviction petition was dismissed by the learned Single Judge of the High Court of March 15, 1991, i.e., after the passing of the stay order by the Delhi High Court. The second question arises for consideration only in Civil Appeal No. 2553 of 1991 arising out of the eviction proceedings instituted by the respondents.

10. In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by the order dated January 7, 1991. As a result of these orders, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 to 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed.

Similar view was again expressed by Hon'ble Supreme Court in the cases of South Eastern Coal Fields Ltd. Vs. state of M.P. and others, JT. 2003 (Suppl. 2) SC 443 (Para 7) and Nava Bharat Ferro Alloys Ltd. Vs. Transmission Corporation of Andhra Pradesh and others (2011) 1 SCC 216 (Para 29).

In the case of Lal Bahadur Ram Vs. State of U.P. and others AIR 1988 SC 146 (Para 5), the Division Bench held that admission of Special Leave Petition or grant of stay order does not amount to setting aside the judgement.

The findings recorded in the impugned judgement are based on consideration of relevant evidences on record and as such the findings can neither be interfered with nor the evidences can be re-appreciated, in view of the law laid down by the Constitution Bench of Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Dil Bahar Singh, 2014 (9) SCC 78 (Paragraph-31). The court below has committed no error to decree the suit and to come to the conclusion that the plaintiff-respondent is landlord and defendant-revisionist is the tenant.

The judgement in the case of Virendra Prasad Shukla relied upon by the learned counsel for the defendant-revisionist is clearly distinguishable on facts of the present case, inasmuch as in para-4 of the said judgement it is clearly recorded that in that case the title was challenged and the plaintiff- respondent himself could not state in the examination-in-chief as to how he became owner except that it was his ancestral house. The title was not satisfactorily proved and the same was the position with the defendant no. 2, who stated that the house belong to his father, but how his father got it, was not stated.

The facts of the present case are entirely different. The findings of fact in the impugned judgement are based on two registered deeds of the year 1945 and 1974 respectively. There is no dispute with regard to those deeds.

The other judgement in the case of Mahendra Pal Singh and others(Supra) relied upon by the learned counsel for the defendant revisionist is also clearly distinguishable on facts, inasmuch as that judgement was rendered in the situation that intricate question of title was involved which the Judge Small Causes Court had not decided. In the present case, no intricate question of title is involved, inasmuch as the judgement dated 19.2.2010 in original suit no. 201 of 2005 was passed by the court of Civil Judge in which the plaintiff- respondent was declared to be the Manager of Dharamshala in question.

Now, learned counsel for the defendant-revisionist submits that the notice dated 8.6.2005 was issued by the plaintiff-respondent informing the defendant-revisionist to vacate the tenanted shop. He, therefore, submits that the notice itself was defective, inasmuch as clear 30 days time was not mentioned in the notice. He submits that the notice was defective and as such the suit could not be proceeded with and, therefore, the impugned judgement is liable to be set aside.

From perusal of the impugned judgement it is evident that the defendant-revisionist has not raised any such plea before the court below and, therefore, it cannot be considered at this stage.

In view of the above discussions, I do not find any infirmity in the impugned judgement and order dated 8.10.2015 passed by the court of Judge Small Causes, Hathras. The revision lacks merits and, therefore, deserves to be dismissed.

In result, the revision fails and is hereby dismissed.

Order Date :- 22.12.2015

Ak/