Sushil Kumar vs Smt. Phula Rani And Another
2021 Latest Caselaw 435 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL
                    Civil Revision No.58 of 2018

Sushil Kumar                                                   ...Revisionist

                                      Vs.

Smt. Phula Rani and Another                                    ...Respondents

Advocate : Mr. Sarvesh Agarwal, Advocate for the petitioner.
           Mrs. Monika Pant, Advocate for the respondents.


Hon'ble Sharad Kumar Sharma, J.

It is tenant's SCC Revision, which has been preferred under Section 25, of the Provincial Small Causes Court Act challenging the judgment and degree of 08.07.2018, which has been rendered by the court of Judge Small Causes Court/1st Additional District Judge, Kashipur, District Udham Singh Nagar in SCC Suit No.4 of 2011, Smt. Phula Rani and another vs. Sushil Kumar. As a consequence thereto, to the judgment, which was rendered on 08.07.2018, the learned trial court had directed the revisionist to vacate the disputed tenement i.e. the shop in question and to hand over the vacant and physical possession, alongwith all the arrears of rent, as directed therein by the judgment and decree of 08.07.2018.

2. The brief facts, which emerges for consideration before this Court, in the present revision is that the plaintiff has contended in the plaint, that on 03.03.2011, she has issued the notices under Section 106 of the Transfer of Properties Act, subsequently followed by yet another notice of 01.04.2011, whereby calling upon the petitioner to vacate the premises and as a consequence thereto has terminated, the tenancy. The cause of action, which was alleged by the respondents/landlord, which has

arisen for him, to institute the suit on 11.05.2011, was on the ground that since after this expiry of period to vacate, which was stipulated in the notice, which was issued under Section 106 of the Transfer of Property Act, when the tenement in question was not vacated, the necessity arose for the plaintiff/respondents herein to institute the suit.

3. The precise case, which was pleaded by the plaintiff/respondent in the plaint itself, which was registered as SCC Suit No.04 of 2011, was that the Property in Dispute, which is situated at Ramnagar Road, Kashipur, District Udham Singh Nagar, constitutes to be a shop with a certain constructions, which had been raised on its first floor and the same was described in para 1 of the plaint. The landlord/respondents had come up with the case that the tenement in question, which was described therein, was bearing Rent of Rs.2355.87/- per month. The plaintiff in the plaint has submitted that the tenant/revisionist has committed a default in the regular remittance of monthly rent, and has not remitted the rent for the period, as was specified therein and in para 3 of the plaint, the plaintiff/respondent has taken a specific case that since, the tenancy itself carried a rent of R.2355.81/-, hence, as per the provisions contained under Section 2(1)(g) of Act No.13 of 1972, the applicability of Act No.13 of 1972 would be exempted, to be made applicable over the disputed tenement in question and hence submitted that the suit may be decreed by way of granting a decree for eviction of the revisionist/tenant and for the remittance of an amount of the rent, due to be paid to the tune of Rs.28,270.44/- alongwith the expenditure, which has been incurred into by the plaintiff/respondent in institution of suit and issuance of the notices etc.

4. The said suit was contested by the present revisionist by filing a written statement being Paper No.22 Ga, and he had come with the case, that as far as the tenement in question was concerned, since it was an old construction, which according to him was claimed to have been raised in 1974-1975 and because of the fact that the subsequent construction, which was raised on the first floor of the tenement in shop, which constituted to be of one room, toilet and a bathroom, was constructed in 1993-1994; hence, there was an independent tenancy which later stood created in his favour and hence the consolidated rent, which was depicted in the plaint may not be treated as to be creating bar in the light of the provisions contained under Section 2(1)(g) with regards to the applicability of Act No.13 of 1972, because according to his case, the tenancy of the disputed shop, which was created in April 1986, which initially carried a rent of Rs.750/- per month later on, gradually with its increase, at the time of institution of the suit was carrying a rent of Rs.1,770.23/- should be treated as to be an independent tenement, where the provisions of the Act No.13 of 1972, would apply.

5. In the written statement, further it was pleaded by the revisionist that since the part of the property, which was lying on the first floor, as described above, being the construction of 1993- 1994, and was carrying a rent of Rs.400/- per month, that was an independent tenancy and the rent of the two tenements, according to the version of defendant/revisionist, it should be clubbed together for the purposes of ousting the applicability of Act No.13 of 1972 in view of provisions of Section 2(1)(g). The revisionist/defendant had further submitted in the written statement that since he being ignorant to the technicalities of law and being an innocent person, he had admitted the fact that the rent receipts, which were issued were showing rent payable towards tenement, as to be of Rs.2355.81/- and under that pretext

the plaintiff/respondents may not be placed at an advantageous position in order to oust the applicability of the Act.

6. The plaintiff/respondent in support of her contention apart from leading evidence by way of filing an affidavit Paper No.25 Ga 1, had also appeared in the witness box and has recorded her statement, as PW1 and the statement of PW2 Ram Prakash Chawla, who had deposed their oral testimony during the course of trial, and simultaneously, the defendant/revisionist, too had appeared in the witness box and submitted his affidavit Paper No.18 Ga, and other documents in support thereto and particularly the details of the documents, which were referred in para 6 of the impugned judgment, which included the documentary evidence Paper No.48 Ga, which was the Assessment Register of 2009-2010, Paper No.49 Ga, that was the Assessment Register for the year 1993-1994, the Assessment Register Paper No.50 Ga for the year 1998-1999 and henceforth, the learned trial court after considering the pleadings, which has been raised by the parties have formulated the point of determination and also formulated the following issues:-

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7. On an overall scrutiny of the rival contentions and the scrutiny of their evidence, led by the parties few facts, which are not disputed is that there exists a landlord and tenant relationship, as the fact of subsisting tenancy was admitted and further the fact of issuance of the notices under Section 106 of the Transfer of

Property Act, thereby terminating the tenancy on an expiry of a period of 30 days with effect from 03.03.2011, is too a fact, admitted because the terms of notice was replied by revisionist by submitting his replies on 26.03.2011 and on 28.03.2011.

8. The prime concern in the present SCC Revision; for the purposes of deciding the present revision, would be the scrutiny of the findings, which has been recorded on Issue No.1, of the learned Judge Small Causes; which was a consideration exclusively in relation to the applicability of Act No.13 of 1972, in order to decide the issue of bar contemplated under Section 2(1)(g) of the Act No.13 of 1972.

9. The counsel for the revisionist/defendant, has drawn the attention of this Court to the pleadings, which was raised by him before the court below by referring to Para IV of the findings, which has been recorded by the learned trial court, where the classification of the rent paid in relation to the two different tenements had been sought to be pressed by the counsel for the revisionist/defendant, in order to portray that it was a different and distinct tenancy, which was created with regards to two different tenements and hence a consolidated assessment of rent made by Paper No.48 Ga, 49 Ga, 50 Ga and 51 Ga, for the respective Assessment Years may not be taken into consideration as to be the solitary basis for the purposes of ousting the applicability of Act No.13 of 1972. From the pleading, the attention of this Court, has been drawn by the counsel for the petitioner to Para IV, in fact, the said para referred, is a consideration of the stand taken by the defendant/revisionist, its not the reasoning, which had been recorded by the court below and if the reasoning itself are taken into consideration the learned trial court had recorded its finding in Para VII, for not accepting the defence of the revisionist, that as per the receipts of the rent,

which was placed on record by the revisionist/defendant, therein by way of list of Document Paper No.47 Ga, he has placed on record the receipts dated 20.03.2011 and 27.04.2012, which shows the remittance of a consolidated rent. Thus, the court while recording its findings particularly that as contained in Para X of the impugned judgment, while considering the aspect of reply as has been extended by the revisionist to the notice which had been issued had recorded a finding that the tenement in question carried the rent of Rs.2355.81/- and hence, the applicability of the Act No.13 of 1972, was ousted to be applied over the tenement, hence while exercising my revisional powers under Section 25 of the Act, the argument, which had been extended by the counsel for the revisionist, that an appropriate point of determination was not framed by the learned trial court may not be sustainable for the reason being that the proceedings, which were hold under the provisions of the Provincial Small Causes Courts Act, are governed by the principles enunciated in the Code of Civil Procedure, which makes the applicability of Order 14, to govern the aspect of the responsibility of formulation of point of determination and if at all the revisionist has any grievance with regards to an inappropriate formulation of point of determination, quite rationally and procedurally too, it was expected for him to have moved an appropriate application before the Judge Small Causes Courts itself for getting an additional point of determination formulated, which was not availed by the revisionist and hence, he cannot, now at this stage of the proceedings contend that the point of determination, was not appropriately framed by the learned trial court. Thus, the rational adopted by the learned trial court, while recording its finding on the applicability of Act No.13 of 1972, does not suffer from any perversity or a wrongful interpretation of the documents, which was placed on record by the revisionist/defendant himself. So far as, the other question pertaining to determination of tenancy by

issuance of notice under Section 106 of the Transfer of Property Act, is concerned, which has always left open for the landlord to terminate the tenancy, if he does not want to continue with the same and the fact which had remained uncontroverted by the revisionist in the proceedings before the court below. Hence, the court held while determining the Issue No.2, has held that the tenancy stood terminated on the expiry of 30 days period from the date of issuance of the notice, consequently the trial court has rightly decreed the suit.

10. After having heard the counsel for the parties at length, I am of the view that though the ambit of the revisional jurisdiction under Section 25 of the Act may not be confined to its interpretation to be limited as if to be revision, under Section 115 of the C.P.C., as its scope is much wider enough, since it is a first stage of a superior court, where the judgment of trial court is put to a judicial scrutiny and it partakes the shape of an exercise of jurisdiction of appellate court, where the appreciation of evidence can also be undergone and that is why the judicial precedence have held that the revision under Section 25 of the Act should take the shape of the regular First Appeal. Hence, this Court formulates the following point of determination:-

1. As to whether the finding on the applicability of Act No.13 of 1972 suffers from any perversity?

2. As to whether there could be a termination of tenancy by issuance of notice under Section 106 of Transfer of Property Act?

3. After having gone through the records and the findings, which had been recorded and in view of the finding, which have already recorded above, I am of the view that an oral testimony or a statements, which had been made in the affidavit by the

revisionist/tenant himself making an effort to create a distinction with regards to tenement in question as to be the different tenements carrying a rent of lesser amount than Rs.200/-and Rs.400/- respectively has to be independently determined so as to make the Act No.13 of 1972, applicable in accordance with the stand of the revisionist, that the construction happens to be of 1974-1975, that stand of the revisionist runs contrary to the documentary evidence itself and particularly the documentary evidence, which are in the shape of public documents, which are the assessments of the Municipal Board. Apart from it even, the documents in evidence of the rent receipts, which were placed on record by the revisionist himself was showing a consolidated rent of Rs.2355.81/- hence, on his own showing of the revisionist, itself the finding recorded of non attraction of the provisions as contained under the exemption Clause of Section 2(1)(g) of the Act No.13 of 1972, was rightly decided in favour of the plaintiff. Hence, the point of determination no.1 is decided against the revisionist/defendant by this Court and holds that the provisions of Act No.13, would not be applicable over the tenement in question in view of the evidence on record before the trial court. As the tenement was carrying a rent, much above the cut off rent provided under the Act No.13 of 1972.

11. The second point of determination, as to the choice of landlord to terminate the tenancy by issuance of notice under Section 106 of Transfer of Property Act, is yet again a fact, admitted and borne out from evidence on record that the provisions of Section 106 of the Transfer of Property Act, of terminating the leases in the absence of any written contract to the contrary creating a tenancy is always left open as a prerogative, which is available to the landlord and which has been rightly exercised by the respondents/landlord, herein by issuing notice on 03.03.3011 and 01.04.2011, which admittedly,

the evidence revealed that it was served on the revisionist and replied by the revisionist too and once the tenement was not vacated even after the expiry of the stipulated period therein of 30 days, the implications of the deeming Clause as provided under Section 106 of the Transfer of Property Act, of termination of a tenancy after the expiry of aforesaid period will come into play. In such an eventuality even the findings, which has been recorded on the basis of notices Paper No.8 Ga and reply given thereof by the revisionist i.e. Paper No.26 Ga is not vitiated, not based on a misreading of the evidence on record.

12. In view of the reasons, which this Court has recorded above, I am of the view that the judgment impugned, which was rendered by the learned trial court on 08.7.2018, is not vitiated nor there is an apparent misleading or perversity in the judgment, which was rendered. Consequently, the revision lacks merits, and the same is accordingly, dismissed. The directions, which has been issued by the impugned judgment dated 08.07.2018 is hereby affirmed directing the revisionist/tenant to vacate the premises within the time period as specified by the learned trial court.

(Sharad Kumar Sharma, J.) 24.02.2021 Arti/