Heera vs Sudha Jain
2021 Latest Caselaw 2020 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 605 of 2021
 

 
Petitioner :- Heera
 
Respondent :- Sudha Jain
 
Counsel for Petitioner :- Suresh Kumar Srivastava,Jagdish Prasad Mishra
 
Counsel for Respondent :- Satyendra Narayan Singh
 

 
Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the defendant tenant petitioner and Sri Satyendra Narayan Singh, learned counsel for the plaintiff landlord - respondent.

Present petition has been filed with the following prayer:

(a) To seta side Judgment and decree passed by Additional District Judge Court no. 3 Muzaffarnagar and Judge Small Cause Court Civil Judge (S/D), Muzaffar Nagar dated 27.01.2020 and 29.10.2018 respectively (Annexure no 4 and 5 ) passed in revision no. 16 of 2018, and Revision no. 17 of 2018, Smt. Sudha Jain Vs Heera and Heera Vs Smt. Sudha Jain.

(b) Stay the effect and operation of the Judgment and decree passed by Additional District Judge Court no. 3 Muzaffarnagar and Judge Small Cause Court Civil Judge (S/D), Muzaffar Nagar dated 27.01.2020 and 29.10.2018 respectively (Annexure no 4 and 5 ) passed in revision no. 16 of 2018, and Revision no. 17 of 2018, Smt. Sudha Jain Vs Heera and Heera Vs Smt. Sudha Jain.

(c) issue an appropriate order or direction as this Hon'ble Court may deem fit and proper under circumstances of the case.

(d) award cost."

Shorn of details, relevant facts of the case are that a suit for eviction was filed on the ground that the defendant is in unauthorized occupation of the building and he has committed default in making payment of rent and that although the defendant is in unauthorized occupation of the building, however, he is claiming himself to be the tenant of the building and he has never paid rent. It was asserted that the defendant himself claimed that he was tenant at the rate of Rs. 525 per month with water tax and arrears of three years rent were claimed. The suit was contested by defendant petitioner herein on the ground that he is in occupation of the building since 1985 and is tenant and he is not in unauthorized occupation. In paragraph 16 it was claimed that earlier he was tenant at the rate of Rs. 300/- per month and when he was pressed to vacate the premises he agreed for making payment of rent at the rate of Rs. 500/- per month including all taxes.

The trial court framed four issues, namely, whether there is landlord - tenant relationship between the parties; whether the defendant is tenant at the rate of Rs. 525 plus water tax; whether defendant has committed default in making payment of rent since 30.3.2011; whether the defendant is entitled for the benefit of Section 20(4) of U.P. Act 13 of 1972 and the relief, if any. The findings were recorded against the petitioner by the trial court. It was held that as admitted by the tenant the relationship of landlord and tenant is proved. On the issue of rate of rent it was found that the defendant was paying rent at the rate of Rs. 525 plus water tax. In so far as payment of rent is concerned, it was found that the defendant has committed default in making payment of rent. In so far as extension of benefit of Section 20(4) of U.P. Act 13 of 1972 is concerned it was held that since the defendant has admittedly deposited rent at the rate of Rs. 300/- per month whereas finding has been recorded that he was tenant at the rate of Rs. 525 plus water tax, therefore, default in payment of rent is also proved. The relief was accordingly granted in favour of the plaintiff.

The revision filed by the tenant was also dismissed upholding the findings recorded by the trial court. However, the revisional court further held that the plaintiff is entitled for the damages towards the dues at the rate of Rs. 75/- per day although the landlord has claimed damages at the rate of Rs. 100/- per day.

Challenging the same, submission of learned counsel for the petitioner is that the plaintiff herself did not appear in the witness box and only her husband appeared. On perusal of record I find that it was asserted by the husband of the plaintiff that the plaintiff is a housewife. Therefore, in view of the settled law that the husband can appear in the witness box under such circumstances as he is having full knowledge of the facts, contention of learned counsel for the petitioner is not sustainable.

It was next contended that the plaintiff has not discharged his duty by proving that the petitioner is tenant and that the rate of rent was Rs. 500/- per month plus water tax. Suffice to note that in paragraph 2 of the written statement the defendant himself has admitted that he is tenant in the shop, therefore, admitted fact need not be proved.

Similar is the situation with the rate of rent in paragraph 16 of the written statement the defendant has admitted that he was tenant at the rate of Rs. 500/- per month hence the same need not be proved, although it is asserted that the defendant was forced to increase the rent when he was being pressed hard to vacate the premises. In such view of the matter, this fact is also admitted to the tenant. Therefore, this fact also need not be proved as admission is the best proof in view of Section 58 of the Indian Evidence Act.

In so far as the default part is concerned, it is not in dispute rather it has been admitted by the defendant that he has made deposit at the rate of Rs. 300/- per month only whereas concurrent findings have been recorded that the rate of rent was Rs. 525/- plus water tax. In such view of the matter, no benefit of Section 20(4) of the Act can be extended to the petitioner defendant.

At this stage, it was stated that the revisional court has incorrectly fixed damages at the rate of Rs. 75/- per day whereas defendant - petitioner was tenant at the rate of Rs. 525 plus water tax even if the findings recorded by the courts below are accepted.

In the totality of the circumstances, the order of the revisional court is modified to the extent that the defendant - petitioner would be liable to pay damages at the rate of Rs. 50/- per day i.e. Rs. 1500/- per month as directed by the revisional court in place of Rs. 75/- per day as fixed by the revisional court.

A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. 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.

In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below in the present petition and the same is accordingly dismissed.

However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant-revisionist before the Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.8.2021.

(2) The tenant-petitioner 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-petitioner 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-petitioner shall pay damages @ Rs. 3,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.8.2018 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-revisionist 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-revisionist 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 revisionist, he shall also be liable for contempt.

Order Date :- 4.2.2021

p.s.