Arjun Singh vs Sanatan Dharm Sabha,Kaushalpur Society and Others

A.K. Yog, J.—Both the above mentioned Writ Petitions arise out of proceedings relating to J.S.C.C. Suit No. 50 of 1996 and hence, as admitted by the Counsels for the parties, decided together by means of a common judgment, a copy of this judgment shall also be placed on the record of Writ Petition No. 23570 of 2000.

Petitioner (Defendant/tenant) seeks to challenge the impugned judgment and order dated 10th February, 2000 (Writ Annexure No.1) passed by Revisional Authority (Proforma Respondent No.2) under Section 25, Provincial Small Causes Court, Act, whereby S.C.C. Revision No. 154 of 1998 (S. Arjun Singh v. Sanatan Dharm Sabha and others) has been dismissed affirming judgment and order dated 22nd August, 1998 passed by Judge Small Causes Court, Kanpur Nagar in S.C.C. Suit No. 50 of 1996 (Writ Annexure No.2) Copy of the plaint has been annexed as Annexurc3 to the Writ Petition.

Sanatan Dharm Sabha, Kaushalpuri, Kanpur, a registered society under Societies Registration Act, 1860 filed aforementioned suit, inter alia, amongst other grounds contending that Plaintiff''s society was the ownerlandlord of the Accommodation in question, wherein Defendant was a tenant. Plaintiff also submitted in Para 1 of the plaint that society was registered with the Income Tax Department, Kanpur vide order dated 25th September, 1980 as charitable institution. It was also contended in para 5 of the plaint that ''aims and objects'' of the plaintiff''s society are of public interest and are that of the charitable institution. Hence, its nature and character is that of a charitable and religious trust. Consequently, it is mentioned in the plaint that the provisions of Amended U.P. Act, 13 of 1972 are not applicable inasmuch as the accommodation belonging to the public charitable and religious trust were exempted from the purview of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act No. XIII of 1972 (for short called the Act'').

It is stated that notice under Section 106, Transfer of Property Act was served in accordance with law, the tenant was a bad pay master who committed default in payment of rent for several months, etc., (as mentioned in Para 6 of the plaint).

Defendant filed written statement (Annexure4 to the Writ Petition).

Before the trial Court one Jagdish Awasthi appeared on behalf of the Plaintiff (Writ Annexare No.5). Plaintiff filed application No. 73Ga praying for amendment in the plaint but trial Court refused to allow proposed amendment vide order dated 5th April, 1997 (Writ Anncxure8).

Plaintiff had filed copy of the order dated 18th March, 1994 issued from the office of Commissioner, Income Tax, Kanpur to show that the Society, being charitable institution, had exemption under Section 80G, Indian Income Tax Act (29GaPP 78). Plaintiff also filed other documents like Byelaws of the Society, original order granting exemption under Income Tax Act, etc. documents to demonstrate plaintifflandlord is a charitable institution.

Trial Court vide judgment and order dated 22nd August, 1998 decreed the suit (J.S.C.C. Suit No. 154 of 1998) and directed vacant possession to be delivered after vacating accommodation in question. The trial Court further directed the Defendant to pay arrears of rent and also damages at the rate of Rs. 165/ per month. S.C.C. Revision No. 154 of 1998 has been also rejected. Hence, this Writ Petition.

The first submission of the Petitioner is that Plaintiff (contesting Respondent) did not plead that it is a registered Society covered by the expression provided under Section 2 (1) (bb) of the Act.

The learned Counsel for the petitioner referred to the decision in the case of Genda Lal v. District Judge, Kanpur Nagar, 1999 (1) ARC 3 (Pr 5 6); 1999(1) JCLR 166(A1!) wherein learned single Judge was pleased to observe that there was nothing to indicate that building in question belonged to or vested in a public charitable trust. In the present case, on the other hand, it has been categorically pleaded in Para 5of the plaint that" ''aims and objects'' of the society are of public interest and are that of a charitable institution.

Section 2 (1) (bb) of the Act reads, "any building belonging to or vested in a public charitable or religious institution." A charitable institution means any establishment, undertaking, organisation or association, firm for charitable purposes and includes a specific endowment.

Copy of the Byelaws of the Society has been annexed to the petition as part of Writ Annexure9(pp. 69 of the Writ Paper Book). Byelaw No. 5 says that the ''aims and objects'' of the Society are of public interest. Subclause (8) shows that the activities proposed to be carried by the society are of charitable nature. Apart from it, the order issued from the office of Income lax Commissioner (pp 78 of the Writ Paper Book) shows that the institution of the plaintiff was granted exemption under Section 80G of the Income "Tax Act treating it as public charitable institution.

Perusal of the impugned order indicates that the two Courts below considered respective contentions of the parties after parties had led evidence and thereafter came to the conclusion that mere oral statement on behalf of the Defendant''s Counsel was not enough to hold that Society was not a charitable institution, A perusal of the impugned judgment of the trial Court (pp 31 of the Writ Paper Book) at best shows that the discussion on the issue is not happily worded. The trial Court observed that Plaintiff was not a charitable trust and that, from the evidence on record, it stood proved that Plaintiff was running hospital for charitable purposes. Parties being fullyaware and conscious of the issue, having led the evidence as it desired, Defendant cannot be permitted to take advantage by finding fault in the pleading on hyper technical grounds. No prejudice is caused to the Defendant by alleged ambiguity, if any, though there is none in the pleadings.

Plaintiff is a charitable institution, is a finding of fact.

I find that petitioner has miserably failed to make out a case for interference with finding of fad while hearing this petition under Article 226, Constitution of India.

On behalf of the petitioner, an argument is made that in view of Order XVIII, Rules I and 2, Code of Civil Procedure(Allahabad Amendment) Plaintiff has to set up his own case and placed reliance on (1) AIR 1965 SC 1506,Braluna Nand Puri v. Neki Puri and (2) AIR 1963 MP 164, Gyarsila Uagannath Prasad Mor v. Pandit Sitacharan Dubey and others.

17.1 do not find substance in the said argument, as already stated above. Plaintiff not only pleaded but also proved the case and the two Courts below have concurrently held in his favour.

On behalf of the petitioner it is argued that one Jagdish Awasthi (PW 1) only appeared and made statement to support the plaintiffs case and that the Principal/Executive Officer of the PlaintiffSociety did not appear in Court. The contention is that Order XVIII, Rule 2 (Allahabad Amendment) has been violated.

One may notice that Order XVIII, Rule 2, Code of Civil Procedure is a rule of Procedure. Its compliance is required so that a party is certain as to what is the case of the adversary and what is the relevancy of ''documents'' relied upon by the other side. There is no material to indicate that such an objection was raised before the Courts below. Petitioner has failed to demonstrate that any prejudice has been caused to him by not strictly following the procedure contemplated under Order XVIII, Rule2,Codeof Civil Procedure.

It is apparent that objection with reference to Order XVIII, Rule 2, Code of Civil Procedure have been taken for the first time in writ petition only to undo the entire exercise and render futile all the time and labour of the Plaintiff and the Court. This cannot be permitted by this Court in exercise of its jurisdiction under Article 226, Constitution of India; particularly when no prejudice at all appears to have been caused to the Petitioner.

Again on behalf of the Petitioner it was alleged that Plaintiff was hot a public religious institution and hence in view of the admission of the Plaintiffs witness, it was not open to the Court below to record a contrary finding. The submission of the Petitioner is based on misreading of the plaintiffs witness (Writ Annexure5 pp 50 of the Writ Paper Book). The witness replied, on a suggestion being made, that Plaintiff''s Society was not a public religious institution. The witness, in fact, denied the suggestion that, ''Plaintiff was denying the statement that Plaintiff was not public religious institution.'' Witness categorically stated in the next breadth that plaintiff was a Society and it was a charitable institution and that it was not a trust. The submission of the Petitioner on the basis of the alleged admission is misconceived.

In the last, on behalf of the Petitioner it is argued that rent control authority cannot decide the question whether an institution is public charitable religious trust with reference to the decision in the case of Sri Bajrangbaliji Maharaj Virajman v. Rent Control and Eviction Officer and another. Perusal of the said judgment shows that it is entirely on different facts and this decision does not lay down as principle that Rent Control and Eviction Officer is not competent to decide the issue regarding an institution being charitable institution. .

No other point has been pressed.

In view of the above Writ Petition lacks merits. It is accordingly, dismissed.

II Writ Petition No. 23570 of 2000.

This Writ Petition has been filed against the judgment and order dated llth May, 2000 (Annexure1 to the Writ Petition) whereby the Appellate Authority rejected Review Application registered as Miscellaneous Case No. 15/74 of 2000 filed by the Defendanttenant (present Petitioner) confirming judgment and order dated 10th February 2000, which is also the subjectmatter of challenge in this Writ Petition. Judgment and order dated 10th February, 2000 is also impugned in this Writ Petition but the Petitioner, having realised the mistake that two orders could not be challenged by one Writ Petition, did not press the relief against judgment and order dated 10th February 2000 and challenged it by filing above Writ Petition No. 24260 of 2000. This petition against judgment and order dated 10th February 2000 thus already stands dismissed as not pressed as prayed by the learned Counsel for the petitioner.

I have persued the order dismissing review petition and find that there is no manifest error apparent on the face of record. The review petition was wholly misconceived. No ground of review was made out.

It maybe noted that the Petitioner had first filed a Review Petition (Misc. Case No. 15/74 of 2000) against impugned order dated 10th February, 2000 and thereafter, for the first time, he filed Civil Misc. Writ Petition No. 15410 of 2000 which he got dismissed as withdrawn with permission to file fresh Writ Petition (Para 3 of Writ Petition No. 24260 of 2000). It was merely a tactics to delay delivery of possession of the premises in question. It shows the petitioner had abused process of Court.

The judgment and order dated 10th February 2000 having been upheld in Writ Petition No. 24260 of 2000; this Writ Petition No, 23570 of 2000 must fail. This writ petition No. 23570 of 2000 has no merit and, therefore, dismissed.

No costs. Petition dismissed.