Anil Kumar vs Jaipal gupta and Others

V.K. Shukla, J.—Present Civil Revision has been filed u/s 25 of the Provincial Small Causes Act against the judgment and decree dated 10.02.2009 passed by Additional District Judge, Court No. 2, Moradabad decreeing the suit of plaintiff-respondent No. 1 with cost in JSCC Suit No. 16 of 1980, Jaipal Gupta v. Kali Charan and Ors.

Brief background of the case is that plaintiff-respondent No. 1 filed JSCC Suit No. 16 of 1980, contending therein that the plaintiff is owner of the shop in dispute situated in Brahm Bazar, Town Chandausi, District Moradabad. Said shop was old one and was let out to one Badri Prasad, father of defendant Nos. 1 to 3 and husband of defendant No. 4 at the rate of Rs. 150/- per month. Said shop was reconstructed during the year 1966-70, and the provisions of U.P. Act No. 13 of 1972 were not applicable. Since rent of the shop in question was not paid since July, 1978, as such notice was given for ejectment, and thereafter suit for ejectment was filed. At the point of time when suit was filed on 17.04.1980, prayer had not been made for decree of arrears of rent and damages for use and occupation of the shop from 18.07.1978 to 17.04.1980, i.e. since the date on termination of tenancy and the date on which suit was filed, as such these prayers had been added by way of amendment. Suit was contested by filing written statement and additional written statement. Defendant No. 4 filed separate written statement. On the basis of evidence available on record, issues were framed. Evidence in the shape oral as well as documentary was brought on record. Suit was finally decided by the Judge Small Cause on 28.07.1987 and the same was dismissed with cost. Thereafter, the plaintiff filed Review Application on 05.08.1987 against the judgment dated 28.07.1987 in the same court. Review application was also dismissed on 12.02.2002. Aggrieved by the said order, the plaintiff filed civil revision No. 245 of 2002 before this Court. Said revision was rejected vide order dated 28.02.2003, making it clear that nothing in the said order would prevent the plaintiff from taking appropriate steps against the judgment and decree of the trial court before any appropriate forum, and it was still open to the plaintiff to challenge the finding of the decree passed in JSCC suit No. 16 of 1980 by taking appropriate steps. After the said order had been passed again review application was filed and the same was also rejected. This Court while deciding review application again clarified that any observation made in the order would not prevent the plaintiff from taking appropriate steps in accordance with law before appropriate forum. Thereafter, the plaintiff-landlord filed Civil Revision No. 669 of 2003 before this Court. This Court allowed the said revision on 20.10.2005 and remanded the matter back by setting aside the order dated 28.07.1987 and further as the provisions of Order 15 Rule 5 C.P.C. had not been complied with to meet the needs of the situation, pragmatic view was taken in exercise of inherent powers by proceeding to pass order striking off the defence of the defendants in terms of statutory provisions of Order 15 Rule 5 C.P.C. After the said judgment had been delivered, the tenant in question i.e. the applicant-defendant preferred special leave to appeal (civil) No. 26618 of 2005. The Hon''ble Apex Court on 20.03.2006 passed following order, upholding the validity of order passed by this Court:

Heard learned Counsel appearing on behalf of the petitioners and the respondent, who is appearing in person.

We do not find any ground to interfere with the impugned order. the SLP is accordingly, dismissed.

Thereafter, on 18.08.2008, as the eviction suit was filed long ago, Hon''ble Apex Court asked the trial court to dispose of the matter within six months from the date of receipt/production of copy of the order and the parties to the dispute were directed to co-operate with the trial court in disposing of the matter. Thereafter, the Additional District Judge, Court No. 2 in exercise of its authority under Provincial Small Cause Act decided the suit by decreeing the same on 12.02.2009. At this juncture present Civil Revision has been filed. Supplementary affidavit has also been filed to show deposit of rent for the different periods. Objection has also been filed on behalf of Jaipal Gupta.

As suit in question had been filed in the year 1980 and since then more than 29 years have elapsed and there was already an order of the Hon''ble Apex Court to decide the matter within six months, seeing the exigency of the matter, as such present revision has been taken up for final hearing and decision with consent of the parties.

Sri Vinod Swaroop, learned Counsel appearing for the applicant, contended with vehemence that in the present case qua the premises in question, the provisions of U.P. Act No. 13 of 1972 were clearly applicable, as the defendant-applicant was tenant from before enforcement of U.P. Act No. 13 of 1972, and as such suit in question could have been filed only if any of the conditions mentioned in Clauses (a) to (g) of Sub-section (2) of Section 20 of U.P. Act No. 13 of 1972 existed. Here, in the present case, as none of the pre-requisite terms and conditions of Clauses (a) to (g) of Sub-section (2) of Section 20 of U.P. Act No. 13 of 1972 was in existence, as such suit in question could not have been decreed by any means for ejectment and for grant of damages for use and occupation at the rate of Rs. 650/- per month, as such judgment and decree passed by Judge Small Cause is liable to be set aside.

Countering the said submission, Sri Jaipal Gupta, who appeared in person, on the other hand, contended that the defence of the defendants has already been struck off under the orders of this Court and once there was un-rebutted evidence on record that the provisions of U.P. Act No. 13 of 1972 were not applicable and valid notice had been given terminating the tenancy, then the suit in question has rightly been decreed, as such the judgment and decree passed by the court below warrants no interference by this Court in exercise of its revisional jurisdiction vested u/s 25 of the Provincial Small Causes Act.

After respective arguments have been advanced, factual position which emerges in the present case is that the plaintiff had come out with a specific case that he was owner of the shop in dispute and had reconstructed the same prior to 18.04.1970, and when the shop in question was old construction, it was let out to Badri Prasad, father of defendant Nos. 1 to 3 and husband of defendant No. 4 at the rate of Rs. 150/- per month. Thereafter, the said shop was reconstructed and the provisions of U.P. Act No. 13 of 1972 were not applicable. Once precise case of the plaintiff has been that the building in question was new construction and the said averments of the plaintiff went un-rebutted, as at no point of time any attempt or endeavour was made to bring on record any counter evidence to show and substantiate that the building in question was not at all covered under the provisions of U.P. Act No. 13 of 1972. Defence of the defendants had already been struck off under the orders of the Court and the net effect of the same was that the defendant was not entitled to lead evidence but he was entitled to be heard, cross examine the plaintiffs'' witnesses, and submit that even on the basis of evidence adduced on behalf of the plaintiff, decree of eviction could not have been passed against him. Hon''ble Apex Court in the case of Paradise Industrial Corpn. Vs. Kiln Plastics Products, has taken the view that even when the defence of the defendant is struck off, he is entitled to be heard, cross examine the plaintiff''s witnesses and submit that on the material available, decree cannot be passed. This Court also in the case of Jagdish Kumar Khanna v. Smt. Shakuntla Devi and Ors. 1980 ARC 535, has taken the view that where defence has been struck off, then its effect is that the defendant''s evidence cannot be admitted in evidence even if they are public document within the meaning of Section 74 of the Evidence Act. However, the defendant can cross examine the landlord''s witnesses. The only effect of striking off of evidence is that the defendant cannot lead any piece of evidence taken by him in the written statement. Tested on these parameters, which have been laid down in the present case, once defence of the defendants has been directed to be struck off, then the effect of the same is that the defendant is entitled to only appear and cross examine the plaintiff''s witnesses and submit that even on the basis of the evidence adduced on behalf of the plaintiff, decree cannot be passed against him. Here, in the present case this fact is not disputed that defence of defendant has been struck off, and thereafter, on the basis of evidence which have been adduced on behalf of the plaintiff, and on which no cross examination etc. has been done in respect of applicability of the provisions of U.P. Act No. 13 of 1972, categorical finding of fact has been returned that the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in question. Once building in question is not at all covered under the provisions of U.P. Act No. 13 of 1972, such finding of fact being neither perverse nor unreasonable, in the facts of the case, is not liable to be interfered with by this Court in exercise of its revisional jurisdiction u/s 25 of the Provincial Small Cause Act.

Once the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in question and this is admitted position that tenancy in question had been terminated by giving valid notice u/s 106 of the Transfer of Property Act, and in this backdrop, the court below i.e. Judge Small Cause had no other option but to decree the suit for ejectment, as such impugned judgment and decree does not suffer from any error of law apparent on the face of the record.

Much emphasis has been laid on the fact that in the present case pre-requisite terms and conditions of Section 20 of U.P. Act No. 13 of 1972 were not at all in existence, the suit in question could not have been filed and decreed. As already mentioned above, finding of fact has been returned that the provisions of U.P. Act No. 13 of 1972 were not applicable, then existence of said ground was not a condition precedent for institution of suit. Even otherwise, in the present case, suit in question had been filed clearly and categorically taking plea that since 1978 rent in question had not been paid, as such tenancy had been terminated. Once defence had been struck off, then any amount of evidence sought to be adduced from the side of the defendant could not have been looked into, and as the suit had been filed with the allegation that the arrears of rent had not been paid and that the provisions of U.P. Act No. 13 of 1972 were not applicable, then in this background, arrears of rent was an additional ground in addition to termination of tenancy u/s 106 of the Transfer of Property Act. Here, in the present case, finding of fact has been arrived at that the provisions of U.P. Act No. 13 of1972 were not applicable and the tenancy had been validly terminated and once damages had been specified, same cannot be termed unrealistic in the present scenario looking to the topography of the shop in question, there is no occasion to interfere with the judgment and order of the court below.

Consequently, present Civil Revision is dismissed. The tenant is accorded three month''s time to vacate the shop in question and hand over its peaceful vacant possession to the landlord, subject to the condition that within one month from today the tenant deposits entire decretal amount and files affidavit before the Judge Small Cause Court that the premises in question will be vacated on or before expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today, and the other condition not being complied with, the interim protection shall cease to operate, and landlord would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of tenant.