Bhagwan Sharma vs Ravi Sharma
2019 Latest Caselaw 6254 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 05
 
Case :- MATTERS UNDER ARTICLE 227 No. - 5840 of 2019
 

 
Petitioner :- Bhagwan Sharma
 
Respondent :- Ravi Sharma
 
Counsel for Petitioner :- Raj Kumar Kesari
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Raj Kumar, learned counsel for the defendant-tenant/petitioner. This petition under Article 227 of the Constitution of India has been filed praying for the following relief:-

"(I) Issue an order or direction in suitable nature by quashing/ setting aside the impugned order dated 26.07.2010 passed by the Small Causes Judge, Ghaziabad in S.C.C. Case No.26 of 2002 (Ravi Sharma Versus Sri Bhagwan Sharma) and impugned order dated 22.05.2019 passed by the learned Special Judge (Aa.Va. Adhiniyam) Ghaziabad in SCC Civil Revision no.98 of 2010 and this Hon'ble Court may further be pleased to direct the plaintiff-respondent not to dispossess to the defendant-petitioner from the shop in question."

2. Briefly stated facts of the present case are that the disputed shop No.50 (New No.127), Mohalla Ganjimal, Dasna Gate, Ghaziabad was originally owned by one Smt. Chandra Kanti, who sold it to Smt. Chando Devi by Registered Sale Deed dated 20th April, 1965. Thus, Smt. Chando Devi became the owner and landlord of the disputed shop. She filed SCC Suit No.337 of 1973 (Smt. Chando Devi Vs. Shri Bhagwan) for eviction of the defendant-tenant/petitioner herein, claiming rent to be paid Rs.75/- per month. However, the court found rent to be Rs.20/- per month. However, the aforesaid suit (SCC No.337 of 1973) was dismissed by judgment dated 30.09.1977 passed by Judge Small Cause Court/ Civil Judge, Ghaziabad. According to the plaintiff-respondent, the defendant-tenant/petitioner stopped paying rent since April, 1984. The aforesaid Smt. Chando Devi (owner and landlord of the disputed shop) had two sons. However, by a Registered Will Deed dated 17the April, 1998, she bequeathed the disputed shop to her grandson Ravi Sharma, who is plaintiff-respondent herein. Thereafter, Smt. Chando Devi died on 06.10.1999. After her death, plaintiff-respondent herein has became owner and landlord of the disputed shop. Since rent was not being paid by the defendant-tenant/petitioner, therefore, he issued a notice dated 04.02.2002 to the defendant-tenant/petitioner, which was served on 06.02.2002. Despite receiving the notice, the defendant-tenant/petitioner neither vacated the disputed shop nor paid the rent and instead sent a reply of the notice. Consequently, the plaintiff-respondent herein filed SCC No. 26 of 2002 (Ravi Sharma, Advocate Vs. Shri Bhagwan Sharma). This suit was decreed by Judge Small Cause Court, Ghaziabad by the impugned judgment and decree dated 26.07.2010. Aggrieved with this judgment, defendant-tenant/petitioner filed SCC Revision No.98 of 2010 which has been dismissed by the impugned judgment dated 22.05.2019 passed by the Special Judge (E.C. Act), Ghaziabad. Aggrieved with these two judgments, the defendant-tenant/petitioner has filed the present petition under Article 227 of the Constitution of India.

3. Learned counsel for the defendant-tenant/petitioner submits as under:-

(i) The petitioner has deposited the entire rent on the first day of hearing by tender being paper No.121ga and, therefore, he was entitled for the benefit of Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 (hereinafter referred to as 'U.P. Act 13 of 1972'), but the court below has committed manifest error of law, by not extending the benefit to the petitioner.

(ii) The plaintiff-respondent has no title to the disputed shop and the alleged Will dated 17.04.1998 was under challenge in O.S. No. 1111 of 2003 (Moolchandra Sharma Vs. Pt. Amrit Lal Sharma and others).

(iii) The plaintiff-respondent has not submitted any probate or Will and, therefore, the Will was not proved and consequently, the plaintiff-respondent was having no title to the disputed shop.

(iv) The defendant-tenant/petitioner was depositing the rent in Case No.173 of 1973 under Section 30 of U.P Act 13 of 1972, since the year 1984 and as such there was no arrears of rent. He never defaulted in deposit of rent or payment of rent.

4. No other argument has been made before me except four afore-noted.

5. I have carefully considered the submissions of learned counsel for the defendant-tenant/petitioner.

6. The afore-noted first and fourth submissions of the defendant-tenant/petitioner, relate to deposit of rent and, therefore, these two submissions are considered together.

7. The courts below have recorded findings of fact that neither while replying to the notice dated 04.02.2002 nor in the written statement, the defendant-tenant/petitioner has disclosed any material particulars with regard to the alleged deposit of rent under Section 30(1) of U.P Act 13 of 1972 in Case No. 173 of 1973. As per tender 115ga to 118ga filed by the defendant-tenant/petitioner, he deposited rent as under:-

Sl.No.

Period

Date of Deposit

01.07.1990 to 31.12.1991

10.01.1991

01.01.1992 to 28.02.1995

18.02.1995

01.01.1999 to 29.02.2000

07.03.2000

01.03.2000 to 28.02.2002

20.02.2002

8. No rent was deposited by the defendant-tenant/petitioner in the aforesaid Case No.173 of 1973 under Section 30(1) of U.P. Act 13 of 1972 for the period from 01.03.1995 to 31.12.1998.

9. After the present suit i.e. SCC No.26 of 2002 was filed, the defendant-tenant/petitioner filed a written statement mentioning therein that he had deposited Rs.10,000/- on 18.02.2002 towards rent for the period from April, 1984 to March, 2002. The plaintiff-respondent filed an application 16ga dated 29.11.2002 under Order XV Rule 5 C.P.C. and also filed an application to withdraw the alleged deposited amount. On the said application/ withdrawal voucher, the Deputy Nazir submitted the report that the defendant-tenant/petitioner has deposited merely Rs.240/- on 13.02.2002. The defendant-tenant/petitioner has not submitted any objection to the aforesaid application of the plaintiff-respondent. The evidence of the plaintiff-respondent was closed on 12.05.2010. It is on this day, i.e. on 12.05.2010, the plaintiff-respondent filed tender (paper No.121ga) with regard to the alleged deposit of Rs.10000/-. Thus, the alleged deposit of Rs.10,000/- by tender was filed by the defendant-tenant/petitioner in SCC No. 26 of 2002 on 12.05.2010.

10. Order XV Rule 5, Civil Procedure Code (as applicable in Uttar Pradesh) clearly provides for deposit on or before the first date of hearing and right of the plaintiff-landlord to withdraw it. Section 20(4) of the U.P. Act 13 of 1972 provides as under:-

"20. Bar of suit for eviction of tenant except on specified grounds. -

(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlords' costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground :

Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area."

11. On the admitted facts of the case as briefly noted above, it is clear that at the first date of hearing of the suit, the defendant-tenant/petitioner has neither paid nor tendered to the landlord nor deposited in court the entire amount of rent etc. for use and occupation of the disputed shop, which were due from him, together with interest thereon @ 9% per annum. Therefore, both the courts below have not committed any error of law to deny the benefit of Section 20(4) of U.P. Act 13 of 1972 or that the defendant-tenant/petitioner has not deposited the amount in terms of the provision of Order XV Rule 5 C.P.C.

12. Before I proceed to consider the Submission Nos.(ii) and (iii) of learned counsel for the defendant-tenant/petitioner, it would be appropriate to take notice of certain findings of fact recorded in impugned judgment regarding conduct of the petitioner. The plaintiff-landlord/ respondent filed his examination-in-chief on 19.12.2002. Several opportunities were afforded to the defendant-tenant/petitioner to cross-examine him, but he did not cross-examine him and, therefore, his right of cross-examination was closed on 31.07.2003. The defendant-tenant/petitioner was afforded opportunity to file his evidence but he did not file his evidence and, therefore, his right to file evidence was closed on 21.08.2003. Thereafter, he filed an application 33ga on 08.09.2003 for recall of the orders and to afford opportunities to cross-examine and to file evidence but this application was not pressed by the defendant-tenant/petitioner and instead on 07.10.2003, an Application 36ga under Section 10 CPC, was filed to stay the proceedings of the case which was rejected by the court on 13.04.2004, against which, he filed the Revision No. 101 of 2004, which was dismissed by the Revisional Court. Thereafter, he filed an Amendment Application 53ga on 23.08.2004, which was rejected. Thereafter, the petitioner was continuously seeking adjournments. The petitioner was not arguing on his Application 33ga despite several opportunities were afforded to him. Consequently, it was rejected by the court on 17.09.2009 against which he filed a Revision No.100 of 2009 which was conditionally allowed on 19.04.2010, providing that the petitioner shall not take any unnecessary adjournment and till disposal of the suit, pay rent of Rs. 500/-. Thereafter, the defendant-tenant/petitioner cross-examined the plaintiff (PW-1) on 12.05.2010 and PW-2 on 13.05.2010. Thus, the defendant-tenant/petitioner made every effort to delay the disposal of the rent case and prolonged it at the original stage for more than eight years defeating the statutory mandate of expeditious disposal of rent cases as provided in Rule 15(3) of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972.

13. It shall also not be out of place to mention that the Judge Small Cause Court in the impugned judgment has also observed at internal pages 13 and 14 of the impugned judgment dated 26.07.2010 that costs imposed on several occasions, were not paid by the defendant-tenant/petitioner.

14. The submission Nos.(ii) and (iii) of learned counsel for the defendant-tenant/petitioner itself are valid grounds for eviction. There is no dispute that the petitioner is tenant and Smt. Chando Devi was the owner and landlord of the disputed shop who executed a Registered Will Deed dated 17.04.1998 in favour of her grandson Ravi Sharma (plaintiff-respondent herein). Chando Devi died on 06.10.1999. Therefore, the plaintiff-respondent became owner and landlord of the disputed shop and filed SCC Suit No. 26 of 2002 on 15.03.2002. Much subsequent to it O.S. No. 1101 of 2003 (Moolchand Sharma Vs. Pt. Amrit Lal Sharma and others) was filed by one of the son of Smt. Chando Devi, challenging the Will and for eviction, but thereafter, the aforesaid Moolchand Sharma deleted the prayer for declaring the Will as false and fabricated and confined the relief in the suit only for prohibitory injunction. No one came forward claiming landlord-ship of the disputed shop except the plaintiff-respondent who succeeded the disputed shop by Registered Will Deed of his grandmother Chando Devi, who was undisputedly the owner and landlord of the disputed shop. There was no occasion for the defendant-tenant/petitioner to deny the landlord-ship and title of the disputed shop of the plaintiff and if he did so, then he did it at his own risk of eviction. Challenge to the title of the landlord in a rent case, itself is a ground for eviction of the tenant. That apart no one has claimed ownership of the disputed shop except the plaintiff-respondent. The plaintiff-respondent is the grandson of Smt. Chando Devi who was undisputedly the owner and landlord of the disputed shop.

15. Both the courts below have considered all the issues and recorded detailed findings of fact based on relevant evidences on record. No perversity in the impugned judgment could be pointed out by the learned counsel for the defendant-tenant/petitioner. The findings recorded by the courts below are findings of fact based on consideration of relevant evidences. Therefore, these findings of fact cannot be interfered with in jurisdiction under Article 227 of the Constitution of India.

16. For all the reasons stated above, the present petition is a frivolous petition and abuse of process of court by the defendant-tenant/petitioner, which is well evident from various facts noted in the impugned judgment and the findings recorded therein. Therefore, cost needs to be imposed.

17. For all the reasons aforementioned, this petition is dismissed with cost of Rs. 5000/-.

Order Date :- 01.08.2019

NLY