Tulsi Ram through his L.Rs. vs Addl.District Judge, Court No.12, Bareilly and others

Rakesh Tiwari, J.

Heard Sri V.S. Shukla, learned Counsel for the petitioner, Sri Pulak Ganguly for the caveatorrespondent and perused the record.

This petition has been filed challenging the validity and correctness of the order dated 23.1.2009 passed by Judge Small Causes Court, Bareilly in S.C.C. Suit No. 19 of 1998 "Rajendra Prasad v. Tulsi Ram and others" as well as the judgment and order dated 11.2.2010 passed by Additional District Judge Court No. 12, Bareilly in Revision No. 6 of 2009 "Mahesh Kumar and others v. Rajendra Prasad and others".

The brief facts of the case as called out from record are that the respondent No. 3 had filed Original Suit No. 19 of 1998 alleging that the petitioner is tenant of respondent No. 3 in House No. 220, Sadar Bazar, Bereilly at the rate of Rs. ISO/ per month. Suit No. 63 of 1993 was filed by the landlord against the original tenant Tulsi Ram as he was not paying the rent regularly.

Another Suit No. 34 of 1996 was filed by the landlord for recovery of arrears of rent and which against the original tenant Tulsi Ram which was decree in favour of the landlord.

The contention of learned Counsel for the petitioner is that as a result of decision in Suit No. 34 of 1996 the tenant Tulsi Ram had to pay Rs. 4,732/. It is further contended that tenant Tulsi Ram was paying rent regularly to the landlord and was not in default as alleged but as no rent receipts were given to him. A compromise was entered between Rajendra Prasad and Tulsi Ram on 31.10.1996 pursuant to which the aforesaid amount of Rs. 4,732/ was paid by Tulsi Ram to respondent No. 3.

It further appears that the tenancy of petitioner Tulsi Ram was thereafter terminated on 13.9.1997 vide notice dated 10.9,1997 which is claimed to be contrary to the provisions of section 106 of Transfer of Property Act.

It is submitted by the Counsel for the petitioner that Judge Small Causes Court, Bareilly decreed the suit vide judgment and order dated 23.10.2009 which is challenged on the ground that the receipts of tender notice had been filed before the Court below yet they were overlooked hence the conclusion arrived by the Court below Judge Small Causes Court, Bareilly is erroneous. It is also stated that even in revision also the Revisional Court failed to appreciate the facts that petitioner had been regularly depositing the rent before the Courts below as such both the judgments and orders dated 23.1.2009 as well as 11.2.2010 are bad in the eyes of law and are liable to be set aside as perverse findings have been recorded by the Courts below.

The Judge Small Causes Court framed the following issues : "

Issue No. 1 has been decided in favour of the landlord holding that notice sent to the tenant was served upon him and there is no illegality in it. Issue No. 2 has been decided holding that there is no misjoinder of parties as after the death of Tulsi Ram the plaintiff had brought on record the soninlaw Mahesh Kumar (husband of Smt. Premawati daughter of Tulsi Ram) as well as the sons of late Smt. Premavati namely Vijay Kumar, Ajay Kumar, Avinash, Anoop Kumar and Km. Neelam hence there was no misjoinder of parties. With regard to issue Nos. 3 and 4, the Court found that there is contradiction in the evidence adduced on behalf of the tenant and from the tenders by which the rent has been submitted it is not found that rent was regularly deposited.

Lastly issue No. 5 has been decided holding that as rent was not deposited by the petitioner and on the first date of hearing the petitioner hence he was not entitled for benefit of section 30 (1) of U.P. Act No. 13 of 1972. In this regard the relevant findings of the Court below is as under :

After recording the aforesaid finding the following order was passed:

The aforesaid finding have been affirmed by the Appellate Court vide its order and judgment dated 11.2.2010.

Learned Counsel for the respondents has at the outset raised two points for consideration

(i) The petitionertenant it has handed over the possession of the premises in dispute on 12.6.2010 to the landlord and as such is not entitled to any relief now in the writ petition.

(ii) The affidavit in the writ petition was made on 30.3.2010 and after having the writ petition reported on 31.3.2010 it has been filed on 30.8.2010 after i.e. about 5 months when the possession had already been handed over by the tenant to the landlord about more than two months back.

Considering all the facts and circumstances as stated above, particularly when the Courts below have given concurrent findings of fact that the petitioner was chronic defaulter and has not paid the rent regularly or even before the first date of hearing and is not entitled to the benefit of section 30 (1) of U.P. Act No. 13, 1972. More over as the petitioner has already handed over the possession of the premises vacating the possession of the accommodation to the landlord, the petition is dismissed as having filed with latches for which there is no explanation and also as having been rendered infructuous in the facts and circumstances of the case. No order as to costs.