Avinash Kumar vs Vinod Kumar

Alok Singh, J.

1) Heard Mr. Manoj Sah, Advocate for the petitioner and Mr. K. C. Tiwari, Advocate for the respondent.

2) By means of present writ petition, petitioner seeks to issue an appropriate order or direction for setting aside the impugned judgment dated

19.09.2006 (Annexure-7 to the writ petition) passed by the Judge Small Cause Court / District Judge, Udham Singh Nagar, Rudrapur in SCC Revision

no.12/2005.

3) Brief facts of the case are that petitioner-Avinash Kumar instituted a SCC Case No.3/2003 before the Judge Small Cause Court/Civil Judge (S.D.),

Rudrapur, Udham Singh Nagar for recovery of arrears of rent, damages and ejectment against defendants- Vinod Kumar, Arvind Kumar and Atul

Kumar. It was alleged that the petitioner has a shop in Mohalla Bazar, Kasba Jaspur, Udham Singh Nagar. Defendant-Vinod Kumar was the tenant

of the shop in question at the rate of Rs.400/- per month and Rs.40/- per month towards electricity charges since 05.04.1991. Defendant was not

paying rent regularly and, on 06.06.1992, a rent receipt was issued by the plaintiff to the effect that a sum Rs.800/- was paid by defendant towards

two months rent i.e. for April and May. When the defendant failed to make payment of rent to the plaintiff again and again, the plaintiff vide notices

dated 23.01.2003 and 25.04.2003 terminated the tenancy of the defendant.

4) The parties led their evidence before the trial court, including documentary evidence. The trial court framed necessary issues and after considering

the evidence of the parties decided the issues mostly in favour of the plaintiff and, consequently, passed a decree of eviction against the defendant-

Vinod Kumar, vide judgment and decree dated 30.07.2005.

5) Feeling aggrieved against the judgment and decree of the trial court, a SCC Revision No.12/2005 was filed by the defendant-Vinod Kumar.

6) Vide judgment dated 19.09.2006, the revisional court allowed the revision of defendant-Vinod Kumar and set aside the judgment of the trial court.

7) Learned counsel for the petitioner-plaintiff vehemently argued that the revisional court has committed error in setting aside the findings recorded by

the trial court, in as much as the findings recorded by the trial court was based on material available on record.

8) Per contra, learned counsel for the respondent-defendant while refuting the submission of learned counsel for the petitioner supported the judgment

of the revisional court and submitted that the revisional court has rightly set aside the judgment of the trial court.

9) Perusal of the record reveals that with regard to issue no.1, the trial court has held that the U.P. Act No.13 of 1972 is not applicable in the property

in question. In so far as issue no.2 is concerned, it was held by the trial court that Avinash Kumar is the owner of the property in question and, in

addition to other tenants, Vinod Kumar (respondent herein) is the tenant in the property in question at the rate of Rs.300/- per month and for the last

03 years, the rate of rent was increased to Rs.400/- per month. Issue no.3 was decided in favour of plaintiff by holding that the defendant has made

default in payment of rent. Issue no.4 was decided in favour of the plaintiff by holding that the legal notice under Section 106 of the Transfer of

Property Act was served upon the defendant and the tenancy of defendant was terminated after the expiry of 30 days of the said legal notice. Issue

no.5 was decided against the defendant by holding that the defendant has got no protection from his eviction from the property in question. Issue no.6

was also decided in favour of the plaintiff by holding that the plaintiff is entitled to get a sum of Rs.400/- from the date of filing of the suit for the use

and damages of the property in question.

10) According to the plaintiff, the disputed shop was completed with a Lanter in 1987-1988, but the first tax assessment was done in the year 1991 in

Nagar Palika. On the other hand, Vinod Kumar -defendant in para 7 of his written statement has never clarified as to how the provisions of U.P. Act

No.13 of 1972 are applicable in the property in question, instead he has only given a vague statement in his evidence that the shop was quite old. In

this way, the first tax assessment of the shop was done in the Nagar Palika in the year 1991.

11) Hon’ble Supreme Court in Trilok Singh Chauhan vs. Ram Lal (dead) through LRs & others, (2018) 2 SCC 566 has explained the

circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25 of the Provincial Small Cause Courts Act,

1887. 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.

12) Hon’ble Supreme Court in Trilok Singh Chauhan’s case (supra) has held as under:

“16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal vs. 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 present is not a case where the High Court set aside the finding of the trial court on any of above grounds where the Revisional Court under

Section 25 can interfere. The High Court has not even referred to the reasons given by the trial court while coming to the conclusion that the rate of

rent is Rs.1500 per month. We thus are of the view that judgment of the High Court is unsustainable.â€​

13) After careful consideration of the impugned judgment as well as of the judgment of trial court, this Court is of the opinion that the revisional court

can only interfere if the material evidence has been ignored by the trial court and the findings recorded by the trial court are perverse or patently

illegal. It is well settled law that the revisional Court can not re-appreciate the evidence ordinarily, unless the revisional court finds that the order of the

trial court suffers from patent illegality.

14) Having heard the learned counsel for the parties, the court finds that the impugned judgment of the revisional court cannot sustain and is liable to

be set aside. The impugned judgment dated 19.09.2006 passed by the Judge Small Cause/District Judge, Udham Singh Nagar is set aside.

15) The writ petition is allowed. The petitioner will be entitled to get a sum of Rs.5000/-, as costs, to be paid by the respondent within a period of four

weeks from today.