Mobin vs Sanjiv Kumar

Manoj Misra, J.—Heard Sri Chetan Chatterjee for the petitioner and Sri S.K. Pandey for the respondent.

The present petition is filed against the orders dated 21.01.2017 and 17.05.2016 passed by the Additional District Judge, Court No.8, Saharanpur in SCC Revision No. 6 of 2016 and Judge, Small Causes Court, Saharanpur in SCC Suit No. 30 of 2013 respectively.

A perusal of the record would go to show that SCC Suit No. 30 of 2013 was instituted by the plaintiff-respondent against the petitioner for arrears of rent and eviction by claiming that the accommodation in dispute was a new construction not covered by U.P. Act No. 13 of 1972 of which the defendant was a tenant at the rate of Rs. 2100/- per month and he had remained in arrears of rent from 01.04.2010 up to 31.03.2013; and that a notice terminating tenancy as well as for handing over possession dated 16.04.2013 was duly sent by registered post but, despite service of notice, the tenant had not vacated the premises nor paid the arrears.

The defendant contested the suit by denying the landlord-tenant relationship. It was claimed that the plaintiff was a money-lender; the building in dispute was developed by the defendant and since, the defendant was in need of money, money was advanced by the plaintiff; fraudulently, certain documents were got signed by the plaintiff from the defendant and cheques were also fraudulently obtained by the plaintiff from the defendant; and, in respect of repayment of the amount, cases under Section 138 of the Negotiable Instruments Act were also filed. It was alleged that though fraudulently sale-deed of the disputed building was obtained but possession was never delivered to the plaintiff and, as such, there was no landlord-tenant relationship between the plaintiff and the defendant and never any rent was agreed to be paid by the defendant to the plaintiff.

The trial court framed various issues. It found that admittedly in the year 2008, a plot of land was purchased and, thereafter, constructions were raised on or after 2008 therefore U.P. Act No. 13 of 1972 was not applicable to the premises in dispute. It further found that admittedly there was a sale-deed of the property in question in favour of the plaintiff which has not been cancelled. Thereafter, upon considering various aspects, it came to the conclusion that there was landlord-tenant relationship between the plaintiff and the defendant though, it came to the conclusion that the plaintiff had failed to prove as to what was the agreed rate of rent for the premises. Accordingly, it did not decree the suit for arrears of rent but, upon finding that there was service of notice terminating tenancy, the suit for eviction and possession was decreed.

Aggrieved by the decree passed by the trial court, the petitioner filed revision under Section 25 of the Provincial Small Causes Court Act, 1887 which came to be dismissed by impugned order dated 21.01.2017.

A perusal of the impugned order dated 21.01.2017 would go to show that the revisional court affirmed the finding of landlord-tenant relationship between the plaintiff and the defendant upon consideration of the following evidences:- (a) that admittedly there was a sale-deed of the suit property executed in favour of the plaintiff on 16.01.2008 and that no suit had been instituted for cancellation of that sale-deed; (b) that the defendant had admitted the execution of sale-deed of the entire plot area admeasuring 200 Sq. Yard in favour of the plaintiff as also subsequent execution of sale-deed of a part portion of 100 Sq. Yard by the plaintiff in favour of a third party, who admittedly had entered into possession on the basis of the sale-deed executed by the plaintiff in his favour; (c) that the defendant had admitted that he had not challenged either the earlier sale-deed executed in favour of the plaintiff or subsequent sale-deed executed by the plaintiff in favour of the third party; and (d) that in his cross-examination the defendant had clearly stated that he was residing in Gali No. 8, Khatakheri on rent and that there was no person by his name living in Gali No. 8.

Taking a conspectus of the pieces of the evidences noticed herein above, the court below came to the conclusion that there was landlord-tenant relationship between the plaintiff and the defendant.

The court below further found that by a written notice dated 16.04.2013, the tenancy of the defendant was duly terminated. It found that the said notice was sent by registered post and there was nothing on record to show that the registered envelop had returned unserved therefore presumption would be available as regards service of notice. It also observed that there was no challenge that the address mentioned in the notice was erroneous or that there was any other person residing in the locality by the name of the defendant. Accordingly, the court below after considering various aspects affirmed the judgment and decree passed by the trial court.

Learned counsel for the petitioner has assailed the impugned orders primarily on the ground that as the courts below have not been able to come to a definite conclusion as to what was the rate of rent agreed to be paid by the defendant to the plaintiff, the tenancy of the defendant was not established and as such the finding returned by the courts below that there existed landlord-tenant relationship between the plaintiff and the defendant was erroneous in law and therefore is liable to be set aside. It has also been submitted that although there existed a sale-deed in favour of the plaintiff but since the landlord-tenant relationship was not established, the suit was not maintainable in the Court of Judge Small Causes and as such the decree passed by the court below is without jurisdiction.

I have considered the submissions of the learned counsel for the parties and perused the record.

Section 15 of the Provincial Small Causes Courts Act, 1887 (hereinafter, referred to as the Act) provides for jurisdiction of Court of Small Causes. Sub-section (1) of Section 15 of the Act provides that the suits specified in the Second Schedule shall not be taken cognizance of by a Court of Small Causes. Sub-section (2) of Section 15 provides that subject to the exceptions specified in the Second Schedule, all suits of a civil nature within the limit of specified valuation shall be cognisable by a Court of Small Causes. The proviso added to sub-section (2) of Section 15, by U.P. Amendment, as substituted by U.P. Act No. 14 of 2015, provides that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in sub-section (2) to Rs. 5,000/- shall be construed as a reference to Rs. 1 lac. Therefore, if the plaintiff is able to establish that there existed a landlord-tenant relationship and there was a valid determination of lease, the suit for possession by the landlord (lessor) would be maintainable in the Court of Judge Small Causes in view of the proviso to sub-section (2) read with Article No.4 (as substituted by U.P. Act No. 37 of 1972) of the Second Schedule of the Act.

In the instant case, the courts below have recorded a finding that there existed landlord-tenant relationship between the plaintiff and the defendant on the basis of the title documents as also the admission of the defendant made during his cross-examination in respect of his occupation as a tenant in Gali No. 8, Khatakehra. There is nothing on record that there is any other person by the name of the defendant residing in Gali No.8, Khatakhera, district Saharanpur. The suit was also instituted by describing the defendant as a resident of Gali No.8, Khatakhera, district Saharanpur, as would be clear from the address noted in the judgment and decree passed by the trial court at page 56 of the paper book. Most importantly, during his cross-examination, which is at page 51, the defendant stated that the sale deed of the portion in which he currently resides stands in the name of Sanjeev (plaintiff). Therefore when his statement is read as a whole it transpires that the defendant accepts his status as a tenant.

Under the circumstances, once it is the admitted position that the plaintiff holds the title documents of the property, which are not subjected to challenge in any Civil Court proceeding, and the occupation of the defendant as a tenant of the premises is also admitted, then the finding returned by the court below as regards existence of landlord-tenant relationship between the plaintiff and the defendant being based on evidence brought on record is a finding of fact which cannot be interfered with in exercise of supervisory jurisdiction merely because the landlord failed to prove that the agreed rate of rent was Rs. 2100/- p.m. Grievance in respect of failure to determine the rate of rent payable for the premises, could be raised by the plaintiff because it is the plaintiff who has been deprived of the rent. But, because the court below has returned a finding that the plaintiff could not prove the rate of rent payable for the premises, it cannot be said that the landlord-tenant relationship was not proved between the plaintiff and the defendant.

For the reasons mentioned above, this Court finds no good reason to interfere with the orders passed by the courts below. The petition is dismissed.