Allahabad High Court
Afzal vs Radhey Shyam Jaiswal And Others on 5 August, 2021
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 35
Case :- WRIT - A No. - 47056 of 2011
Petitioner :- Afzal
Respondent :- Radhey Shyam Jaiswal And Others
Counsel for Petitioner :- Rama Nand Pandey,Pradeep Narain Pandey
Counsel for Respondent :- Durga Prasad,S.K.Pandey
Hon'ble Rajiv Joshi,J.
Heard Sri Pradeep Narain Pandey, learned Counsel for the petitioner and Sri S.K. Pandey, learned Counsel for the respondent no.1. Nobody is present on behalf of the other respondents.
The present writ petition under Article 226 of the Constitution of India has been filed for the following reliefs :-
"a) to issue a writ order or direction in the nature of certiorari quashing the order dated 12.05.2011 in part (Annexure No.4) passed by District Judge, Siddharth Nagar in Civil Revision No.02 of 2010 (Radhey Shyam Jaiswal Vs. Afzal and others).
b) to issue a writ order or direction in the nature of mandamus commanding the respondent no.1 to vacate the premises in dispute.
c) to issue a writ order or direction in the nature of mandamus commanding the respondent no.1 to pay the arrears of rent."
From the perusal of the impugned order shows that concurrent findings of fact have been recorded that the tenant-respondent no.1 defaulted in payment of rent for more than four months and has not even deposited it on the first date of hearing so as to avail the benefit of Section 20(4) of the U.P. Act XIII of 1972. The S.C.C. Suit No.05 of 2002 (Afzal Vs. Radhey Shyam & Others) was decreed vide judgement and decree dated 15.01.2009 but the Civil Revision No. 02 of 2010 filed by the tenant was allowed by the impugned judgement dated 12.05.2011 passed by the District Judge, Siddharth Nagar on the only ground that the service of notice determining the tenancy was not proved by the landlord-petitioner. This finding is perverse, inasmuch as in paragraphs-18 to 21 of the plaint, the landlord-petitioner has clearly stated that the notice dated 29.10.2001 was given by him to the tenant-respondent no.1 demanding arrears of rent and determining tenancy on expiry of one month and after expiry of one month, he also personally requested the tenant-respondent no.1 but he neither paid the rent nor vacated the shop. These three paragraphs of the plaint have been replied by the tenant-respondent no.1 in paragraph nos.18 to 21 in the written statements in which he has not specifically denied the clear statement of fact with regard to the service of notice determining tenancy and arrears of rent. No specific averment was made in this regard and it was merely stated in paragraph-8 under the heading "Additional Pleas" that the refusal report was given by the postman fraudulently and incorrectly. No evidence could be led by the tenant-respondent no.1 to prove that the refusal report of postman was either forged or incorrect. On the other hand, the plaintiff-landlord has filed in evidence copies of notice, postal receipts, acknowledgement and the envelop bearing remark of refusal. Under these circumstances, there was no occasion for the revisional court to hold that the plaintiff-landlord/petitioner could not prove service of notice.
For the reasons stated above, the impugned judgement 12.05.2011 passed by District Judge, Siddharth Nagar in Civil Revision No.02 of 2010 (Radhey Shyam Jaiswal Vs. Afzal and others) passed by the District Judge, Siddharth Nagar cannot be sustained and is hereby set aside. The judgment and decree dated 15.01.2009 in S.C.C. Suit No. 05 of 2002 (Afzal Vs. Radhey Shyam & Others) passed by the Judge Samll Cause Court is upheld.
The Writ Petition is allowed.
Order Date :- 5.8.2021
Noman
