Vishwa Gaurav Pandey vs Dr. Smt. Sangeeta Agarwal & Anr.
2021 Latest Caselaw 5992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 21
 

 
Case :- S.C.C. REVISION No. - 29 of 2020
 

 
Revisionist :- Vishwa Gaurav Pandey
 
Opposite Party :- Dr. Smt. Sangeeta Agarwal & Anr.
 
Counsel for Revisionist :- Apoorva Tewari,Akash Singh
 
Counsel for Opposite Party :- Prashant Singh Gaur
 
*****
 
Hon'ble Jaspreet Singh,J.

The instant revision has been preferred under Section 25 of the Provincial Small Cause Court Act, 1887 against the judgment and decree dated 11.11.2019 passed in SCC Suit No. 213 of 2014 (Dr. Smt. Sangeeta Agarwal and Another Vs. Vishva Gaurav Pandey) by means of which the suit of the plaintiffs-respondents has been decreed granting the relief of arrears of rent and ejectment by the Court of Special Judge, P.C. Act, Court No. 5, Lucknow acting as Judge Small Cause Court.

Briefly, the facts giving rise to the instant revision are as under:-

That the plainitiff-respondents instituted SCC Suit No. 213 of 2014 against Sri Vishva Gaurav Pandey seeking a decree of arrears of rent and ejectment as well as damages for wrongful use and occupation.

It was pleaded that the ground floor portion comprising of 3 living rooms, hall, lobby, porch and front open space in House No. 75, Ravindra Palli, Faizabad Road, Lucknow was initially let out to Smt. Garima Pandey, the sister of the defendant. The premises was let out on a monthly rent of Rs. 6,500/- excluding electricity, water tax and other charges. It was also pleaded that with mutual consent the monthly rent was enhanced to Rs. 9,000/- per month.

In paragraph 3 and 4 of the plaint, it has been stated that the defendnat (Vishva Gaurav Pandey) started tendering the cheques in his own name since January, 2013. It was later discovered that Smt. Garima Pandey after marriage had shifted elsewhere without informing the plaintiffs and during her stay she inducted her relatives including the defendant in an unauthorized manner. It was also stated that only when the cheque for the rent relating to the month of March, 2014 was dishonoured and the plaintiffs went to the premises that they realised that they had been accepting the rent from the defendant.

It was also pleaded that the defendant (Vishva Gaurav Pandey) had instituted a suit for injunction in the Court of Civil Judge, Junior Division, Hawali, Lucknow on 22.04.2014 on false pretext. The plaintiff's since were receiving the rent from the defendant, therefore, treating the defendant as the tenant and the fact that the rent was in excess of Rs. 2,000/-,hence, by means of notice dated 19.08.2014 terminated the tenancy and thereafter instituted the suit against the defendant.

The said suit was contested by the defendant by filing his written statement wherein he took the defence that he was only the tenant of one room situate on the ground floor whereas the wash room, lobby and the Angan was in common use of the defendant with other tenants. The defendant pleaded that he was a tenant of Rs. 1,600/- per month along with Rs. 100/- towards water charges, thus, a total sum of Rs. 1,700/- was paid as rent by the defendant to Dr. Sangeeta Agarwal, the plaintiff no. 1.

He also pleaded that the defendant was only the tenant of Dr. Sangeeta Agrawal and Dr. Atul Agarwal, the plaintiff no. 2 has been wrongly impleaded in the above suit. It was further pleaded that since the rate of rent was only Rs. 1700/- per month and the building was old, hence, it was covered by the provisions of Uttar Pradesh Regulation of Letting of Rent and Eviction Act, 1972 (hereinafter referred to as the Act No. 13 of 1972). The defendant also submitted that he had deposited the arrears in terms of Section 20 (4) of the U.P. Act No. 13 of 1972 and as such was entitled to the benefit of the aforesaid provision, relieving him from the decree of ejectment.

Insofar as the service of composite notice of demand and ejectment dated 19.08.2014 is concerned, the same was served on the defendant, however, it was assailed on the ground that it did not relate to the portion of which the defendant was a tenant rather it related to a much larger area, hence, the notice was bad.

Before the Trial Court, it is only the plaintiff no. 2 Dr. Atul Agarwal who appeared as a witness whereas none appeared on behalf of the defendant nor the defendant examined himself before the Court. The Trial Court by means of judgment dated 11.11.2019 considering the respective contention of the parties decreed the suit for the relief of arrears of rent, ejectment as well as damages for wrongful use and occupation.

The defendant being aggrieved against the aforesaid judgment has knocked the doors of this Court.

Sri Apoorva Tiwari, learned counsel for the revisionist has assailed the impugned judgment on primarily three grounds;

(i) It has been urged that the jurisdiction of the Court is determined on the basis of the allegations made in the plaint. Since in paragraphs 3 to 5 of the plaint, it was alleged by the plaintiffs that the property in question was initially leased out to Smt. Garima Pandey and that Smt. Garima Pandey had left the premises without informing the plaintiffs and during her stay, she unauthorisedly inducted the defendants and her near relatives.Thus, as per the allegations in the plaint, the status of the defendant was that of an unauthorized occupant and such a suit by the owner against an unauthorized occupant was not maintainable before the Judge, Small Cause rather the plaintiffs ought to have instituted the suit before the Civil Court on the regular side. Thus the decree suffered from the vice of jurisdictional error hence a nullity.

(ii) It is also urged that from the plaint averment, no relationship of landlord and tenant was made out since it was pleaded by the plaintiffs that they had been accepting the rent under the impression that the amount was being tendered to them by Smt. Garima Pandey. Thus, for the said reason, when there was no relationship of landlord and tenant between the plaintiff and defendant thus for the said reason also the suit was apparently not between the lessor and lessee, consequently, the suit was not maintainable and was hit by the provisions of Section 15 of the Provincial Small Cause Court Act.

(iii) It is also been feebly argued that the revisionist-defendant was not granted adequate opportunity to contest the case and that certain documents were filed by the plaintiffs which though were taken on record but opportunity was not granted to the revisionist to rebutt the same or to lead oral evidence in respet thereto. Thus, for all the reasons as mentioned above, it was urged that the judgment and decree passed by the SCC Court dated 11.11.2019 was bad in the eyes of law and was liable to be set aside.

Sri Tiwari in support of his submissions has relied upon the following decisions:

(i) M/s Technician Studio Pvt. Ltd. Vs. Smt. Lila Ghosh and Another, 1978 Allahabad Rent Cases, 220 (ii) Sanvarmal Kejriwal Vs. Vishwa Cooperative Housing Society Ltd. and Others reported in 1990 (2) SCC 288 (iii) Mani Nariman Daruwala Alias Bharucha Vs. Phiroj N. Bhatena and Others reported in 1991 (3) SCC 141 (iv) Harshwardhan Chokkani Vs. Bhupendra N. Patel and Others reported in 2002 (3) SCC 626.

At this stage, it will be relevant to notice that the decisions of the Apex Court in the case of Sanvarmal Kejriwal (supra) and Mani Nariman Daruwala (supra) both are on the proposition that the jurisdiction of the Court in which the action was originated must be determined on the basis of the averments in the plaint whereas the other two decisions in the Case of M/s Technicians Studio Pvt. Ltd and Harshwardhan Chokkani (supra) both are on the proposition that mere payment of rent in itself does not create a tenancy.

Per contra, Sri Prashant Singh Gaur, learned counsel appearing for the plaintiffs-respondents while refuting the submissions of the learned counsel for the revisionist submits that the averments of the plaint must be read as a whole. It is not permissible to cull out sentences or read certain paragraphs in isolation. It is further urged that from a complete and meaningful reading of the plaint, it would indicate that the plaintiffs-respondents had pleaded with sufficient particularity that initially the premises in question which was described in the plaint was let out to Smt. Garima Pandey who is none other than the sister of the defendant. She was initially paying the rent of Rs. 6,500/- which later with passage of time was enhanced to Rs. 9,000/- per month. The plaintiffs had also accepted the rent by way of cheque which was issued by the defendant, however, the plaintiffs were under the impression that it was on behalf of Smt. Garima Pandey. On one occasion when the cheque for the rent of the month of March, 2014 was dishonoured that the plaintiffs-respondents realised that Smt. Garima Pandey was married and had left the premises while it was in occupation of the defendant who had been paying the rent.

It has further pleaded that the defendant accepted the defendant as his tenant moreover the defendant also instituted a suit for injunction before the Civil Court on incorrect facts but he pleaed himself to be a tenant but of a lesser portion and at a much lower rate of rent. In the aforesaid backdrop, the plaintiff-respondents after serving a composite notice of demand and ejectment terminated the tenancy and instituted the suit for arrears of rent, ejectment and damages for wrongful use and occupation.

Such a suit being between the lessor and the lessee was cognizable by the Judge, Small Causes and thus the question of jurisdiction being raised by the defendant-revisionist is misconceived as the plaint clearly demonstrates the defendant being the tenant who had paid rent to the plaintiffs, hence, this apart from being an admission now the defendant cannot resile and assail the jurisdiction by raising a frivilous plea.

It is further urged by Sri Gaur that the defendant himself admitted in the written statement that he was a tenant and paying the rent to the plaintiff Dr. Sangeeta Agarwal. Once the relationship of landlord and tenant is admitted in the pleadings and such an admission is neither retracted or explained to mean otherwise, hence, at this stage, it is not open for the revisionist to urge that there is no relationship of landlord and tenant and the SCC Court did not have the jurisdiction.

It is also urged that ample opportunity was granted to the defendant to contest the case apart from filing the written statement. The defendant did not make any endevour to examine himself or any witness on his behalf. The assertion that certain documents were filed which were taken on record and opportunity was not granted to the defendant is also incorrect, inasmuch as, none of those alleged documents find place in the reasons recorded by the trial Court in its judgement, hence, no prejudice has been caused to the defendant.

Apart from the fact that from the perusal of the record of the order sheets of the Trial Court would reveal that the defendants made several applications one after the other which all came to be dismissed with the sole intention of delaying the proceedings and the same was also noticed by the Trial Court. At one point of time, the proceedings were also transferred from one Court to the other and even when the judgment was reserved by the Trial Court, the defendant left no stone unturned to further delay and made an application which was decided by the Trial Court and the reference of which is contained in the judgment itself. For the aforesaid reasons, the decision of the Trial Court does not suffer from any jurisdictional error nor the same requires any interference from this Court in exercise of powers conferred under section 25 of the Provincial Small Causes Court.

The learned Counsel for the respondents has relied upon the following decisions:-

(i) Park Street Properties Private Ltd. Vs. Deepak Kumar Singh and Another reported in 2016 (9) SCC 268, (ii) Jhabbu Lal Vs. District Judge, Dehradun and Others reported in 1998 (2) ARC 558 (iii) Raghu Nath Goyal Vs. Yogendra Singh Nehru reported in 2015 (4) ADJ 168 (iv) Anthony Vs. K.C. Itoop & Sons and Others reported in 2000 (6) 394.

Sri Gaur has relied upon the decisions of Park Street Properties Pvt. Ltd. (supra) and Anthony (supra) to buttress his submissions that where a lease is in respect of a property, the same can be made expressly or by implication. Also that in absence of any registered instrument, the Courts have ample power to determine the factum of tenancy from other evidence as well as conduct of the parties.

As far as the decisions of Jhabbu Lal (supra) is concerned, it has been cited to urge that the tenancy can be created by implied consent and that there may be a case where they may not be an express agreement between the parties yet if the occupant by his own conduct treats himself to be the tenant and the rent is accepted by the landlord in such circumstances, the tenancy would be created by the parties. So also the decision of the Raghhunath Goyal (Supra) has been cited for the aforesaid proposition.

The Court has considered the rival submissions and also perused the material available on record.

At the very outset, it may be noticed that this Court is exercising jurisdiction under Section 25 of the Provincial Small Cause Court Act and it will be necessary to notice the scope and width of the aforesaid jurisdiction.

The power under Section 25 of the Provincial Small Cause Court Act empowers the Court to examine whether in the impugned judgment there has been any violation of any statutory provision or the judgment suffers from misreading of any evidence or omission to consider any relevant and clinching evidence or where the inference drawn from the facts proved is such that no reasonable person can arrive at such findings.

The power under Section 25 of the Provincial Small Cause Court Act though is wider than Section 115 C.P.C. but the very nature of the revisional power is that it is truncated. The Apex Court in the case of Trilok Singh Chauhan Vs. Ram Lal and Others reported in 2018 (2) SCC 566 had the occasion to consider the scope of the revisional powers under Section 25 of the Provincial Small Cause Court Act and by relying upon an earlier decision of the Apex Court in the case of Hari Shanker Vs. Rao Girdhari Lal Chaudhary reported in AIR 1963 SC 698 and a subsequent decision of Mundrilal Vs. Sushila Rani reported in 2007 (8) SCC 609, in paragraphs 15 and 16 has held as under:-

15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , in paras 9 and 10, this Court laid down the following: (AIR p. 701)

"9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd. v. Waman Hemraj, 1937 SCC OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR 1938 Bom 223] , where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4)

''3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.

4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.'

This observation has our full concurrence.

10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption."

16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani [Mundri Lal v. Sushila Rani, (2007) 8 SCC 609] . This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence.

Thus, from the above, it would be clear that there are limited grounds upon which the Court in exercise of powers under Section 25 of the Provincial Small Cause Court Act can interfere. In light of the powers conferred and its scope as noticed above, this Court embarks upon the exercise to test the veracity of the submissions of the learned counsel for the parties.

The learned counsel for the revisionist has primarily urged that the SCC Court did not possess jurisdiction to entertain the suit as from the averments made in the plaint, the plaintiffs had described the defendant-revisionist as an un-authorized occupant and thus the suit was not maintainable before a Small Cause Court Act. The other limb of submission relating to jurisdiction is that since no relationship of landlord and tenant was made out and even from the averments in the plaint, it indicated that the rent which was paid by the defendant-revisionist was accepted by the plaintiffs-respondents to be rent on behalf of Smt. Garima Pandey, thus, there was no relationship of landlord and tenant between the plaintiff and the defendant and even otherwise merely by the plaintiffs stating that they had accepted the defendant as a tenant neither it would give rise to the creation of a tenancy nor mere acceptance of rent would create the relationship of landlord and tenant and that being so the Court did not possess the jurisdiction, hence, the judgment of the Trial Court cannot be sustained.

The aforesaid submission may sound attractive but upon considertion of the material available on record as well as the pleadings, the same does not impress this Court.

It is no doubt true that the jurisdiction of the Court is ascertained by the allegations and averments made in the plaint alone and it is not the defence which is to be looked into for the aforesaid purpose.The decision relied upon by the learned counsel for the revisionist in the cases Sanvarmal Kejriwal (supra) and Mani Nariman Daruwala (Supra) clearly upholds the aforesaid proposition and there is no doubt or quarell to the said proposition. However, in the present facts and circumstances, it is equally true that the plaint has to be considered as a whole and not in piecemeal. The plaintiffs in paragraph 6 while narrating the facts has clearly indicated that though the defendant had filed a frivilous suit but as there was no express or written contract pertaining to the creation of relationship of landlord and tenant and also for the reason that the defendant had issued cheques towards payment of rent which was encashed by the plaintiffs, hence, to remove any doubt, the plaintiffs admit the defendant as their tenant.

The plaintiffs had also issued a notice terminating the tenancy to the defendant dated 19.08.2014 wherein the similar averments have been made. The aforesaid notice also indicated that the premises was not governed by the U.P. Act No. 13 of 1972. Thus, it cannot be said that the plaint as a whole does not contain averments regarding the tenancy in question.

Apparently, in light of the pleadings delivered by the plaintiffs-respondents, it appears that the plaintiffs-respondents have clearly indicated that the defendant is the tenant who had been paying rent to the plaintiffs which has been accepted by the plaintiff. A notice terminating the tenancy of the defendant was issued and received by him and thereafter the suit was instituted before the Judge, Small Causes. At this juncture, it will be equally important to notice that the averments made in the plaint have to be taken as the way they are. The truth or falsity of its content is to be determined at trial. Thus, in so far as the jurisdiction is concerned, it cannot be said that the suit was incorrectly instituted before the Judge, Small Causes.

Coming to the submission that the plaintiffs at some place in the plaint had mentioned that the tenancy was initially in favour of Garima Pandey who had inducted the defendant in an unauthorized fashion and thus the defendant being an un-authorized occupant, the suit would not lie or that there was no relationship of landlord and tenant and even though mere rent was accepted will not create the tenancy. The record indicates that it was the defendant-revisionist who had first instituted a suit for permanent injunction before the Court of Civil Jude, Junior Division, Hawali, Lucknow bearing R.S. No. 177 of 2013 against the present plaintiffs-respondents. A copy of the said plaint has been brought on record and in the said suit it has been averred by the revisionist himself that he is the tenant of Dr. Sangeeta Agarwal on a monthly rent of Rs. 1,600/- + Rs. 100/- towards water charges of one room situate on the ground floor. It is further alleged by the revisionist in the regular suit that his brother and father are also separate tenants of some other portion in the same house. Since they were not paying the rent in time to the landlord which had created difficulty, hence, the present revisionist paid the rent not only on his behalf but also on behalf of his brother and father.

Be that as it may, this aspect has been considered by the Trial Court in detail and while noticing so it has taken note of the respective pleadings and also noticed the fact that the plaintiffs-respondents had appeared in the witness box and duly proved the averments of the plaint. The Trial Court also noticed that the defendant had admitted the tenancy, however, disputed that the rate of rent as well as the extent of the accodomodation under his tenancy, however, he did not appear in the witness box nor examined any witness to prove his defence. In absence of the aforesaid at best, the averments in the written statement remained a plea which could not be substantiated. Hence, treating the admission in so far as the relationship is concerned as well as the absence of the material to the contrary, the trial court recorded a finding that the relationship of landlord and tenant existed between the parties.

Thus, once a finding of fact has been recorded by the Trial Court based on the material available on record, this Court is not inclined to distrurb such a finding of fact especially in absence of any cogent material, contrary to the aforesaid, on record.

The submission of the learned counsel for the revisionist is an attempt to dig and corrode the pleadings of the plaintiffs to make out a case whereas it failed to lead any evidence nor could give any explanation as to the fact that once the defendant had admitted the tenancy and also admitted that he was paying rent to the landlord in the written statement of the regular suit but had disputed the amount of rent and the extent of accommodation only but failed to lead any evidence to substantiate the same, hence, in view of the aforesaid discussion the first limb of the argument of the revisionist fails.

In so far as the submission that mere payment of rent would not create a tenancy and the reliance placed onthe case of M/s Technician Studio Pvt. Ltd. (supra) is concerned, it would indicate that the facts of the aforesaid case were quite different. In the case of M/s Technician Studio Pvt. Ltd. (supra) the payment was made in part performance of the contract of lease contained in a compromise petition. The Apex Court held that payment of rent did not create any tenancy was in the backdrop of the terms and conditions of a contract of lease contained in a compromise petition. Since there was a specific contract in terms whereof the amount was paid in part performance the observations were made by the Apex Court. In the aforesaid judgment, it has further been noticed that whether the relationship of landlord and tenant exists between the parties depends on whether the parties intented to create a tenancy and the intention has to be gathered from the facts and circumstances of the case.

Applying the aforesaid proposition, it would indicate that in the present case, the revisionist had instituted the suit first in point of time and admitted himself to be a tenant. The plaintiffs-respondents while filing the SCC Suit referred to the background of facts and specifically stated that they admit the defendant to be the tenant and also that they had accepted the rent from him, accordingly, the intention as well as admission as contained in the pleadings clearly indicates the creation of relationship of landlord and tenant and that the amount paid by the revisionist would be the rent in respect of the premises in question.

In the case of Harshwardhan Chaukani (supra) the Apex Court has noticed the aforesaid and has held that merely by paying the rent a person does not become a tenant but what it further holds is, that it is not the only determinative factor, other circumstances also can be taken into consideration.

Taking the overall facts as noticed above, the evidence led by the plaintiffs and no evidence led by the defendant to prove his defence does not persuade this Court to take a different view than the one taken by Trial Court.

For the aforesaid reasons, the decisions cited by the learned counsel for the revisionist does not come to his rescue. What this Court finds that since there is no document to establish the lease, however, the conduct of the parties and the evidence on record clearly suggest the relationship of landlord and tenant between the parties and this finding has been recorded by the Trial Court does not suffer from any error. Thus the second submission of the revisionist also fails.

In so far as the submission regarding non-grant of opportunity is concerned, upon perusal of the record, this Court finds that the aforesaid submission is also misconceived, inasmuch as, the defendant was granted ample opportunity but he chose not to lead any evidence. The record also reflects that the defendant has been trying to procastanate the litigation by moving multiple applications which all came to be rejected for cogent and appropriate reasons, though, that is not under challenge before this Court but nevertheless since the submission has been raised by the learned counsel for the revisionist, accordingly, it is being noticed by this Court.

The submission of the revisionist is that certain document were taken on record against which he was not granted an opportunity to lead any oral evidence also pales into insignificance, inasmuch as, the findings of the Trial Court are not based on the said documents. The same has not been noticed nor the plaintiff led any evidence on the same. In view of the aforesaid, neither the said documents which were not proved by the plaintiffs himself has any relevance nor any prejudice has been caused to the defendant nor the same has been made the basis of the impugned judgment, consequently, the said submission also fails.

In light of the aforesaid discussion, this Court is of the firm opinion that the judgment and decree dated 11.11.2019 passed in SCC Suit No. 213 of 2014 by Special Judge, P.C. Act, Court No. 5, Lucknow acting as Judge, Small Causes does not suffer from any error, accordingly, the same is affirmed.

The revision is devoid of merits and is dismissed.

In the facts and circumstances, there shall be no order as to costs. Office is directed to remit the record of the Trial Court to the court concerned within 10 days.

[Jaspreet Singh, J.]

Order Date: 03.06.2021

Asheesh