Court No. - 7 Case :- WRIT - A No. - 36857 of 2000 Petitioner :- Smt.Shanti Devi Respondent :- D..J.Jhansi & Another Petitioner Counsel :- A.N.Bhargava Respondent Counsel :- C.S.C.,K.N.Saxena Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the parties.
This petition by the landlord is directed against a revisional order
dated 13.7.2000 by which the tenant’s revision against a decree of eviction
and arrears of rent has been set aside and the suit of the landlord has
been dismissed.
The petitioner landlord instituted a Small Causes Suit No.58 of
1992 inter alia with the allegation that the contesting respondent was a
sitting tenant of the disputed shop @ Rs.37.50p. per month when he
purchased the same from the erstwhile owner through a registered sale
deed dated 16th February 1983 and despite notice in May 1983, the rent
from said date was not being paid to the landlord and he has also made
certain material alterations but despite notice dated 13.2.1992 demanding
arrears of rent, the payments were not made within the 30 days period nor
the premises vacated. The respondent tenant accepting tenancy and rate
of rent, contested the suit inter alia with the allegation that he has paid rent
uptill April 1983 to the previous landlord and after receiving notice in May
1983, he tendered the rent for May 1983 to the petitioner who refused
whereafter the same was being deposited in proceedings under Section
30 of U.P. Act No. 13 of 1972 (hereinafter referred to as the ‘Act’) and
there was no five months default necessitating filing of the suit and the
notice was illegal.
The trial court framed five issues including on the question of
default, legality of deposit under Section 30 of the Act and benefit of
Section 20 (4) of the Act. After considering the evidence on record, it
returned a finding that except for the deposit of May and June 1983, all
deposits under Section 30 of the Act were illegal. It further went on to hold
that on the date of notice, more than five months rent was due and it also
held that deposit under Section 20 of the Act was not sufficient to grant
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protection to the tenant and therefore, decreed the suit.
The respondent tenant preferred a Revision No.6 of 1998 and the
revisional court believing the evidence of the tenant that he had paid the
rent for the months of March and April 1983 to the erstwhile landlord,
dismissed the suit with the finding that the rent due was only for 3 1/2
months on the date of notice and therefore set aside the decree and
dismissed the suit.
It is urged on behalf of the petitioner that the revisional court
exceeded its jurisdiction under Section 25 of the Provincial Small Causes
Court Act in reappreciating the evidence and setting aside the finding of
fact recorded by the trial court on the question of payment of rent for April
1983 to the erstwhile landlord and in support thereof, he has relied upon
several decisions of this Court including the decision rendered in the case
of Radhey Shyam vs. X Addl. District Judge, Kanpur Nagar [2002 (48)
ALR 666].
The specific case set up by the tenant was that by the time he
received the intimation of the sale in favour of the petitioner, he had paid
the rent uptill April 1983 to the erstwhile landlord and to prove it he had
filed a money order receipt which was numbered as paper no. 28C and its
coupon numbered as paper no. 29C and in his statement he said that the
said money was paid as rent for April 1983. The trial court considering this
aspect in detail has found that there was no evidence to show that the
amount reflected in the money order coupon was the rent for April 1983
and not for earlier months. It found that the tenant had failed to summon
the document from post office to show that it was rent for April 1983 and
he also did not file any affidavit of the erstwhile landlord to prove that the
payment reflected in the money order was the rent for April 1983. Thus
finding that there was no legal proof showing tendering of rent to the
erstwhile landlord, it ignored the document. However, the revisional court
found that once the tenant had stated that the amount shown in the receipt
was the rent for April 1983, it would be presumed as proved as the
document itself was never challenged by the landlord. In fact the revisional
court has taken another view possible on the same set of evidence than
the one taken by the trial court. No doubt a revisional court under Section
25 of the Provincial Small Causes Court Act, 1887 indeed can reverse the
finding recorded by the trial court where it is based on no evidence or
vitiated by error of law but it cannot reapprise the evidence and reverse
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the findings of fact recorded by the trial court as held by this Court in the
case of Radhey Shyam (supra). It was the tenant’s burden to prove by
substantive evidence that the amounts reflected in the receipt were in fact
the rent for April 1983 but he failed to do so.
There is another aspect of this issue. The petitioner admits that
after the sale deed was executed in February 1983, the present petitioner
was entitled to receive the rent thereafter and even assuming that he had
paid the rent uptill April 1983 to the erstwhile owner and landlord, it was
incumbent upon him to have atleast made an effort to seek refund from
the erstwhile landlord and pay it to the petitioner. However, he made no
such effort and therefore also there was default of March and April 1983.
It has also been urged on behalf of the petitioner that the trial court
had found that deposit under Section 30 of the Act, except for the months
of May and June 1983, were illegal as the deposits were in violation of
Rule 21 (5) of the Rules framed under the Act and in support thereof, he
has relied upon a judgment of this Court rendered in the case of Chhotey
Lal vs. IV Addl. District Judge [1994 (1) ARC 289].
The trial court had framed an issue with regard to default and while
considering the deposit made under Section 30 of the Act, it found that all
the deposits, except of May and June 1983, were illegal as the deposits
were in utter violation of the mandatory Rule 21 (5) of the Rules because
it did not accompany the process fee and the notice in form-F, thus the
deposits were illegal as held in Chhotey Lal’s case (supra) and would have
to be ignored. Therefore, also the default was of more than four months
and the revisional court erred in holding otherwise.
For the reasons above, this petition succeeds and is allowed and
the impugned revisional order dated 13.7.2000 is hereby quashed and
that of the trial court is restored.
In the circumstances of the case, no order as to costs.
Order Date :- 30.7.2010
PKG