Allahabad High Court
Radha Kishan Khanna And 4 Others vs Jagannath Prasad Gupta And ... on 16 November, 2017
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 7484 of 2017
Petitioner :- Radha Kishan Khanna And 4 Others
Respondent :- Jagannath Prasad Gupta And Another
Counsel for Petitioner :- Shyam Narain Pandey,Shravan Kumar Pandey
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioners.
Present writ petition has been filed for quashing the order dated 2.8.2017 passed by the Additional District Judge, Court No. 1, Kanpur Nagar in S.C.C. Revision No. 31/2010 (Prem Khanna & others Vs. Jagannath Prasad Gupta & another) and order dated 4.2.2010 passed by Judge, Small Causes Court, Kanpur Nagar in Suit No. 674 of 1992 (Jagannath Prasad Gupta Vs. Radhan Kishan Khanna "Deceased" & another) filed as Annexures 1 and 2 to the writ petition.
By the impugned judgment and order dated 4.2.2010 the suit filed by the landlord for rent and eviction was allowed and the revision filed against the same by the tenant petitioner herein was dismissed.
The suit was filed by the original landlord Sri Radha Kishan Khanna who died during the pendency of the litigation on the ground that he is the owner of half share in the house and is landlord of the house in question. A notice for deposit of rent was given for the entire property. Half of the rent was claimed by the landlord and it was also claimed that the tenant has committed default in making payment of rent. One sale deed paper no. 33 Ga was also filed before the court below according to which the tenants have purchased one residential accommodation being House no. 128/ K Block Kidwai Nagar and that they have shifted to the same. The suit was allowed.
Submission of learned counsel for the petitioner is that one Dwarika Prasad Kakkar was the owner and landlord of the premises in question and Sri Radha Kishan Khanna (now deceased), father of the petitioners no. 1/1 to 1/4 was the original tenant. Subsequently Dwarika Prasad Kakkar sold the aforesaid property to Jagannath Prasad Gupta and Shivnath Prasad Gupta both sons of Pyarelal Gupta. The father of the respondents Pyarelal Gupta used to issue rent receipts. It is submitted that the suit of partition is pending between respondents no. 1 and 2 regarding premises in question and therefore, one person cannot maintain suit against the tenant. Submission is that the tenancy cannot be bifurcated and the amount of rent can also be not bifurcated if plaintiff is claiming himself as co-owner and therefore, the judgment passed by the courts below are not sustainable in the eye of law. It was next submitted that there is no default in making payment of rent as the entire rent alongwith cost and interest was deposited under Section 20 (4) of Act 13 of 1972.
Six issues were framed by the trial court.
The first issue was regarding rate of rent as to whether it is 87.50 or Rs. 70/- per month. The issue was decided by holding that the rate of rent is Rs. 70/- per month. The second issue was as to whether there was any default in making payment of rent. While deciding this issue detailed discussion on the claim of the landlord and the defendant no. 2 who is also co-owner of the house was made. The rent deposited by the petitioner as well as receipts of house and water tax deposited in the Nagar Palika were also considered. It was found that the tenant has failed to produce any receipt of payment of rent after 30.3.1971 and it was also noticed that both the landlords have claimed half and half of the rent. The notice was found to have been properly served and it was also found that due amount was not paid. The third issue was regarding as to whether the entire amount has been deposited on the first date of hearing. It is not in dispute that on 12.8.1993 the tenant has deposited a sum of Rs. 26,000/-, however, it was found that the entire amount was Rs. 31,272/- which was not deposited and even if the tax paid to the Nagar Palika as claimed by the tenant to the tune of Rs. 3,245/- is adjusted there was a short fall of Rs. 2,027/- and as such the entire amount was not deposited on the first date of hearing and benefit of Section 20 (4) of Act 13 of 1972 was not given to the tenant.The findings are based on documentary evidence on record and thus, warrants no interference by this Court. The same are not liable to be re-appreciated by this Court.
So far as the sale deed of purchase of another residential accommodation it was found that the same was proved by the landlord by producing documentary evidence on record that in fact the tenants are living in newly purchased house and since 1993 in the voter list their names are existing on the new accommodation. No evidence to the contrary was produced against such documentary evidence. As such, the finding recorded on Issue no. 3 does not require interference.
In so far as Issues no. 3 and 4 as to whether notice is valid or not are concerned, submission was that since it was given by one landlord only who was claiming to be owner of half of the share it was found that as landlord of the house notice was given for vacating from the entire house in question and the argument of the tenant that the half tenancy cannot be terminated by giving notice it was found that even other co-owner defendant no. 2 had in his counter claim also claimed eviction of the tenant and has accepted the notice given by the landlord in the present case and it is settled law that one landlord can act on behalf of all the landlords. Therefore, it is very much clear that one landlord who may be having half share in the property gives notice of termination of tenancy and the other co-owner, who is defendant in the suit, never objects to such notice and supports the cause of eviction either by specifically asking the relief of eviction against the tenant or even by not disputing the claim raised by the plaintiff, it cannot be said to be a case of bifurcation of tenancy and thus, the notice given by the plaintiff would be perfectly just and legal and the suit cannot be dismissed on this ground. In such view of the matter, the finding that the notice was perfectly legal is in accordance with law.
Issue no. 5 was regarding the relief that was granted to the tenant is in accordance with law.
Issue no. 6 which is regarding counter claim but the same was denied on the ground that defendant no. 2 who is co-owner has not produced any evidence in favour of his claim and therefore, the same was not accepted.
No other point is pressed by the learned counsel for the petitioner.
The findings recorded by the courts below on all such issues are based on documentary as well as oral evidence and requires no interference by this Court. A reference may be made in this regard to the judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Vs. Dilbahar Singh (2014) 9 SCC 78. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited.
This writ petition is, accordingly, dismissed.
At this stage, learned counsel for the petitioner prayed that some time may be granted to the petitioner for vacating the premises in question.
Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioners-tenant before the Court below, it is provided that:
(1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.4.2018.
(2) The tenant-petitioners shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioners shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioners shall pay damages @ Rs. 5,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.4.2018 or till the date he vacates the premises whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioners shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioners shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the shop is not vacated as per the undertaking given by the petitioners, they shall also be liable for contempt.
No order as to costs.
Order Date :- 16.11.2017
p.s.
