Shaukat Ali vs Ram Chandra Prasad

Rakesh Tiwari, J.—Heard Counsel for the parties and perused the record.

This is landlord''s petition challenging the validity and correctness of the impugned judgment and order dated 2442001 passed by the XIth Additional District Judge, Gorakhpur dismissing Civil Revision No. 35 of 2000 and affirming judgment and order dated 3182000 passed by Judge, Small Causes Court, Gorakhpur.

Briefly stated, the facts of the case are that petitionerlandlord filed Suit No. 86 of 1985 praying for a decree of ejectment of the respondenttenant from the shop, in dispute, situate at Mohalla Old Fruit Market Jatepur, Dharmasala Bazar, Gorakhpur. It was alleged that the respondent was tenant of the shop, in dispute, on a monthly rent of Rs. 46.87P; that the tenant had not paid any rent w.e.f. July, 1994 till the date of institution of suit and a sum of Rs,859/ was outstanding towards rent and interest at the rate of 15% per annum; that the tenant was carrying on business from another shop located at Maheva by subletting the shop, in dispute; that in collusion with the subtenant, the tenant had dug a pitch of 1 1/2x2 ft at the floor of the shop, in dispute and had erected Dochatti on a linter which had weakened and deshaped the shop, indispute; and that due to illegal activities of the tenant, he had terminated the tenancy by means of notice dated 2471985 served upon the tenant on 2971995.

The suit was contested by the respondenttenant by filing a written statement denying the averments made in the plaint on the grounds, inter alia, that there was neither any default in payment of rent nor any subtenancy; that he had not made any alteration in the shop, in dispute and that the shop had retained its original character.

In support of his case, the petitionerlandlord filed documentary evidence containing copy of the notice dated 2471995 and postal receipts. The respondenttenant also filed documentary evidence in the shape of rent receipt dated 2871994 showing paying of rent from July 1991 to June 1994; tender dated 681996 and 391996 as well as other tenders.

The landlord examined himself as P.W. 1 and tenant examined himself as D.W. 1.

The trial Court framed the following issues:

(1) Whether the defendant had committed irregularities in the payment of rent according to law and as such, his tenancy stood terminated by notice dated 2471995?

(2) Whether the defendant had caused any material alteration in the shop, in question, as to diminish its value ?

(3) Whether the tenant had sub let the shop, in question to some other person and on such ground the tenancy of the defendant stood terminated by notice dated 2471995?

Considering the facts and circumstances of the case, the trial Court dismissed the suit of the landlord vide judgment and order dated 3182000 holding that the tenant was entitled to the benefit of Section 20(4) of the U.P. Urban Buildings (Regulation of Rent, Letting and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No. XIII of 1972'') since the claimed amount including Counsel''s fee and fee of the clerk had been deposited on the first date of hearing of the suit.

Aggrieved by the judgment and order dated 3182000, the petitionerlandlord preferred Civil Revision No. 35 of 2000 before the District Judge, Gorakhpur, which has been dismissed vide judgment and order dated 2442001 passed by XIth additional District Judge, Gorakhpur.

Aggrieved by the aforesaid impugned orders, the petitionerlandlord has invoked the writ jurisdiction by means of the instant writ petition.

The contention of Counsel for the petitioner is that before the revisional Court, it was specifically pointed out by the petitioner that the tenantrespondent had not paid requisite amount on the first date of hearing in Suit No. 86 of 1995. The requisite amount was deposited by the tenant in another suit No. 87 of 1995. The revisional Court has erroneously held that even if it is accepted that the tenant had committed default in making the payment of rent, since he deposited the entire arrears of rent, interest, costs of the suit etc., he cannot be ejected. He urged that once the revisional Court came to the conclusion that the tenant had committed default, the tenant could not have been entitled to the benefit of Section 20(4) of the U.P. Act No. XIII of 1972.

He contended that in fact, Rs. 1435/ was to be deposited in suit No. 86 of 1985 and the tenant had deposited only Rs. 325/ in the said suit. An amount of Rs. 1435/ was deposited in Suit No. 87 of 1995.

He then submitted that on the question of material alteration made by the tenant in the shop, in dispute, he had alleged that the material alteration was made by the tenant in the shop, in dispute, without his consent but the Courts below negated the case of the landlord merely on the ground that since such constructions were in existence in other shops of the landlord, therefore, it will be presumed that the alleged alterations made by the tenant was already in existence and that when landlord had permitted other shopkeepers in 1997/98 for construction of roof etc., there was no reason that he had not granted permission to the tenant for digging pit and constructing roof etc., in the shop, in dispute. He urged that such finding of the Courts below is based on surmises and conjectures.

Counsel for the petitioner next contended that the tenant had sublet the shop, indispute to one Sri Rama. Subletting was proved by the Amin''s report contained in paper No. 49Ga wherein Amin had found that Sri Rama, subtenant was present in the shop,in dispute, at the time of inspection. The Courts below discarded the Amin''s report merely on the ground that he had not reported that said Sri Rama was not salesman of tenant. He urged that finding of the Courts below, on the question of subletting, is perverse.

Despite several opportunities, no counteraffidavit has been filed.

Counsel for the respondentlandlord contended that concurrent findings of facts have been recorded by both the Courts below and urged that writ Court cannot reappreciate or reevaluate the evidence while exercising supervisory jurisdiction. In support of this contention, he placed reliance on decisions of Hon''ble Supreme Court in Phiroze Bamanji Desai v. Chandrakant M. Patel & Ors., AIR 1974 SC 1059; Bishan Chand v. Vth A.D.J. Bulandshahr & Anr., 1982 ARC 440 and Ranjeet Singh v. Ravi Prakash, 2004(2) JCLR 400 (SC) : (2004)3 SCC 682, wherein it has been held that High Court cannot act like an appellate Court and reappreciate or reevaluate the evidence while exercising certiorari or supervisory jurisdiction.

There is no doubt that High Court cannot act like an appellate Court and reappreciate or reevaluate the evidence while exercising certiorari or supervisory jurisdiction but when the findings of the Courts below are perverse and illegal, this Court is bound to interfere with the same in writ jurisdiction.

Admittedly, the tenant had not deposited Rs. 1435/ as arrears of rent, interest and cost of the suit in Suit No. 86 of 1995 whereas the said amount was deposited in another suit No. 87 of 1995. Therefore, the finding of the Courts below that the aforesaid deposit shall be treated to have been made on the first date of hearing of the suit is illegal and perverse. In this view of the matter, the tenant was not, at all, entitled to the benefit of Section 20(4) of the U.P. Act No. XIII of 1972.

On the question of material alteration, the Courts below have recorded finding that since the landlord had permitted shopkeepers of his other shops to carry on such alterations, he must have permitted the tenant also, is based on surmises and conjectures.

Thus, in view of what has been discussed above, it appears that the Courts below have decided the suit and the revision in favour of tenant merely on surmises and conjectures without at all considering the facts and circumstances of the case on the basis of material available on record.

In the instant case, paper No. 49Ga which is report of Amin clearly shows that Sri Rama was present in the shop, in dispute and the tenant was not present. Sri Rama is neither a familymember of the tenant nor the tenant had ever alleged that he was member of his family. He, therefore, cannot be presumed to be a salesman of tenant in the absence of any such evidence on record. Subtenancy appears to be clearly established.

Accordingly, the writ petition succeeds and is allowed. The impugned judgment and orders dated 2442001 and 3182000 passed by XIth Additional District Judge Gorakhpur and Judge, Small Causes Court, Gorakhpur respectively are hereby quashed. Judge, Small Causes Court is directed to decide the suit No. 86 of 1995 afresh in the light of observations made above preferably within six months from the date of production of a certified copy of this judgment. No order as to costs.