Dismissed

Sanjay and 4 Ors. v. Rajkumar

Allahabad HC9 May 2018A227/3051/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court affirmed the order of the Revisional Court allowing a rent recovery suit against tenants who had been in possession since 1960. The Court granted a six-week extension to vacate the premises subject to deposit of the decreted amount.

What did the court decide?

Petition dismissed; tenants granted six weeks to vacate premises subject to deposit of decreted amount with lower court.

Sanjay and 4 Ors. Vs Rajkumar — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 3051 of 2018

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Petitioner :- Sanjay And 4 Ors. Respondent :- Rajkumar Counsel for Petitioner :- Manoj Kumar Gupta Counsel for Respondent :- Bhanu Bhushan Jauhari

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Hon'ble Mrs. Sangeeta Chandra,J.

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(ORAL)

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Supplementary affidavit filed today is taken on record.

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2.This petition has been filed by the petitioners praying for a writ in the nature of certiorari for quashing the order dated 18.01.2018 passed by the learned Additional Sessions Judge, Court No. 2, Shahjahanpur in SCC Revision No. 5 of 2017 (Rajkumar vs Sanjay and others).

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Learned counsel for the petitioners-tenants has submitted that the predecessor in interest late Mahaveer Prasad was the pujari of the temple Thakur Ji Maharaj situated at Mohalla Mohammadjai, Shahjahanpur. The plaintiffrespondent had earlier filed an SCC Suit No. 6 of 1995, wherein the Thakur Ji Maharaj was the plaintiff-respondent through Sarvarakar Rajkumar.

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In the said suit, the grounds for praying for eviction of the tenant late Mahaveer Prasad were the same, as have been mentioned in the later SCC Suit No. 18 of 1999. The said suit was dismissed by the learned Civil Judge (JuGokaran Singh vs First Additional District & Sessions Judge Hardoi and others,nior Division), Shahjahanpur on merits on 26.08.1996.

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Aggrieved by the said order, a Revision was filed namely, SCC Revision No. 84 of 1996, which was also dismissed by the learned District Judge, Shahjahanpur on 19.03.1998. The order passed by the learned District Judge, Shahjahanpur in SCC Revision No. 84 of 1996 was never challenged and had attained finality. On the same ground, another SCC Suit No. 18 of 1999 was filed by Rajkumar in his personal capacity, also mentioning himself to be the Sarvarakar of Thakur Ji Maharaj Temple. This SCC Suit was contested by late Mahaveer Prasad, and thereafter, by his legal heirs i.e. the petitioners herein, and it was dismissed on 06.09.2003.

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Aggrieved by the order passed by the Trial Court, the plaintiff-respondent had preferred SCC

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Revision No. 23 of 2003. The learned Additional District Judge, Shahjahanpur allowed the Revision by an order dated 13.04.2005, and set aside the order dated 06.09.2003 on the ground that four issues were initially framed by the SCC Court in SCC Suit No. 18 of 1999. Findings were returned on only two issues and no findings were given on the remaining two issues. These two issues were mentioned by the Revisional Court as follows:

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"(i) Whether the defendant/tenant was allowed to occupy the room of the first floor of the building in question as part of his contract of service of Pujariship.

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(ii) Whether the service of Pujariship of the defendant/tenant has been determined by the plaintiff/landlord? If so, its effect."

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Late Mahaveer Prasad aggrieved by the remanding of the matter by the District Judge, filed Writ A No. 55059 of 2005 (Mahaveer Prasad Verma

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vs Raj Kumar) before this Court, in which the initially an interim order was passed staying the operation of the order passed by the Revisional Court with a direction that the tenant shall continue to pay rent to the landlord at the rate of Rs. 400/- per month. Later on, the writ petition was dismissed by this Court on 12.11.2013. This Court observed that the suit was filed on four grounds

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and only on two grounds, findings were recorded by the Judge, Small Causes Court, therefore, the Revisional Court rightly remanded the matter before the Judge Small Causes Court. After affirming the order passed by the learned Additional District Judge, Shahjahanpur in SCC Revision No. 23 of 2003, this Court directed the Judge Small Causes Court to decide the other two issues expeditiously, in accordance with law.

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In pursuance of the directions issued by this Court, the Judge Small Causes Court decided the two issues, of which the matter was remanded by the Revisional Court and by this Court, and also four other issues arising therefrom and dismissed the Suit No. 18 of 1999 recording findings in favour of the tenants.

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Aggrieved by the order passed by the learned Judge Small Causes Court, Civil Judge (Junior Division), Shahjahanpur, the plaintiff-respondent filed SCC Revision No. 5 of 2017, which has been allowed by the learned Additional District Judge on 18.01.2018.

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Learned counsel for the petitioners-tenants has

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argued that the order passed by the Additional District Judge dated 18.01.2018 is against the record and wholly unwarranted. The final order passed in SCC Revision No. 84 of 1996 by the learned District Judge on 19.03.1998 had concluded the matter between the parties and it could not have been allowed to be reopened. The learned Judge, Small Causes Court therefore rightly dismissed the later SCC Suit No. 18 of 1999. In the SCC Suit No. 18 of 1999 after consideration of all evidence, the learned Civil Judge (Junior Division) found that neither there was arrears of rent nor any material alterations as had been complained of by the plaintiff-respondent. The learned Judge, Small Causes Court had recorded a finding that the tenant had continued to deposit rent upto 2002, and had also deposited rent thereafter, which receipts were produced before the Court, and they had not committed any default in payment of rent. With regard to material alterations also the learned Trial Court found that the landlord could not substantiate the allegation of material alterations in the property in question so as to diminish its value and also its

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disfigurement. Necessary repairs alone had been carried out in an old building. Had these repairs not been carried out, the old building would not have remained fit for residential or commercial purposes. The petitioner's predecessor in interest late Mahaveer Prasad had been the tenant of the property in question since 1960, and it was undisputed that during the four decades, when the tenants were in possession of the property, some necessary repairs were required in the property in question. He has referred to the Commission's Report, Paper No. 12 Ga, wherein it has been stated that wherever repairs have not been carried out by the tenants, the property has become so dilapidated that without immediate repairs, it would become uninhabitable.

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It has been submitted by the petitionerstenants that the learned Additional District Judge has allowed the SCC Revision No. 5 of 2017 on the misconceived ground that the tenants have fallen in arrears of rent, although there is a specific finding by the learned Trial Court that the tenant had deposited the rent, and there was no default.

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Mr. Bhanu Bhushan Jauhari, learned counsel for

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the respondent-landlord has pointed out from the plaint in the earlier Suit No. 6 of 1995, and from the plaint in the later SCC Suit No. 18 of 1999 that the grounds taken with regard to default in arrears of rent, and also with regard to material alterations in the tenanted premises, were completely different. He has also pointed out from the Commission's Report, Paper No. 12-Ga that the Commission had found the tenants to have constructed new walls and new ceiling/roof over and above the existing walls of the tenanted premises. They had obstructed the path meant for perambulation (parikrama) of the deity, and had also constructed a toilet in the residential one room of the tenanted premises. Not only material alterations were done that may have included necessary repairs, but it amounted to disfigurement of the property in question as the toilet had been constructed inside the premises of the temple near the deity.

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Learned counsel for the respondent-landlord has also pointed out from the order passed by the learned Additional District Judge that it has been found on evidence that the rent that was

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supposedly deposited by the tenant, was in the earlier Suit No. 6 of 1995, which had already been disposed of on 26.08.1996 by the learned Civil Judge (Junior Division), and the SCC Revision had also been dismissed on 19.03.1998. When the SCC Suit No. 18 of 1999 was filed, the prayer was with regard to default in payment of rent for the period starting from March, 1998 to October, 1999, the learned Additional District Judge in his order has found that the tenants appeared in the SCC Suit on 03.02.2000, and thereafter, continued to appear and even filed their written statement on 12.12.2000, in which in paragraph 7, they averred that they were continuing to deposit rent in earlier Suit No. 6 of 1995.

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Learned counsel for the respondent-landlord has referred to several judgments of this Court and of the Supreme Court, which are as follows:

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M/s Madan and Company vs Wazir , AIR 1989 SC 60 (paragraph 6)

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Gokaran Singh vs First Additional District

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& Sessions Judge Hardoi and others, reported in 2000 (1) ARC 653

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Kamaladevi vs Additional District Judge, reported in 2018 (1) ARC 751 ( paragraphs 20 and 23 )

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Ram Prasad Shukla vs Suraj Lal and others, 2015 (2) ARC 65

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Bhola Ram Kushwaha vs Shanker Lal, Matter under Article 227 No. 2795 of 2016 decided on 26.04.2016

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In M/s Madan and Company vs Wazir, AIR 1989 SC 60 (paragraph 6), once it is proved that the landlord has sent notice by registered post on the correct address of the tenant, then it will be presumed to have been delivered to the addressee under section 27 of the General Clauses Act.

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The notice for demanding rent had been sent by registered post to the correct address of the tenant. The learned Revisional Court has found that although there is a dispute regarding service upon the tenants there is no dispute that the notice was sent through registered post at the correct address of the tenants, and therefore, service has been presumed.

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Learned counsel for the respondent-landlord

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has also referred to a Full Bench decision of this Court in Gokaran Singh vs First Additional District & Sessions Judge Hardoi and others , reported in 2000 (1) ARC 653 and paragraph 37 thereof, wherein this Court has observed that after receipt of notice, it was the duty of the tenant to tender the rent to the landlord, and had no right to deposit the same under section 30 (1) of the Act. The initial burden of proof with regard to arrears of rent lies upon the landlord. Once the burden is discharged, the tenant will have to prove the payment of rent, where the landlord and the tenant both produce evidence with regard to existence of arrears and payment of rent, the question of burden of proof loses its importance and then the Court concerned has to weigh the evidence of both the side and take and inform decision in the matter.

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The rent receipts that had been relied upon by the petitioners-tenants with regard to deposit of rent of Rs. 400/- in SCC Suit No. 18 of 1999 are in compliance of the interim order passed by this Court in Writ A No. 55059 of 2005, and thereafter, continued payment before the learned Judge,

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Small Causes Court in the said SCC Suit No. 18 of 1999. No receipts of payment of rent in Suit No. 18 of 1999 before September, 2005 have been filed, and there is a clear finding recorded that the rent was deposited by the tenant in the earlier Suit No. 6 of 1995, which stood already dismissed on 26.08.1996.

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Learned counsel for the respondent-landlord has also relied upon a judgment by the Coordinate Bench in Kamala Devi vs Additional District Judge, reported in 2018 (1) ARC 751 and paragraphs 20 and 23 thereof, wherein this Court after considering earlier binding precedents has held that where the tenant has not deposited the entire rent due along with cost etc. on the first date of hearing, the tenant is not entitled to get the benefit under section 20(4) of the U.P. Act No. 13 of 1972.

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To similar effect are other judgments relied upon by the learned counsel for the respondentlandlord in Ram Prasad Shukla vs Suraj Lal and others , 2015 (2) ARC 65 and Bhola Ram Kushwaha vs Shanker Lal , Matter under Article

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227 No. 2795 of 2016 decided on 26.04.2016.

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Learned counsel for the respondent-landlord has also argued that in the earlier Suit, the predecessor in interest of the petitioners late Mahaveer Prasad had denied that temple Thakur Ji Maharaj was the owner of the property, but had alleged that Rajkumar in his personal capacity was the owner of the property. The rent was being allegedly deposited in Suit No. 6 of 1995, which was filed by Temple deity Thakur Ji Maharaj as owner of the property in question. After the Trial Court and the Revisional Court found that Thakur Ji Maharaj, the deity was not the owner and landlord of the tenants, rent being deposited in the name of the deity could not be said to be rent being deposited in favour of the landlord Rajkumar.

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Having heard the learned counsel for the parties, I have perused the order impugned passed by the Revisional Court. The Revisional Court has rightly exercised his jurisdiction, and set aside the findings found perverse and against the record of the learned Trial Court.

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I do not find any factual or legal infirmity in the order passed by the learned Revisional Court.

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23. This petition is dismissed.

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No order as to costs.

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Learned counsel for the petitioners-tenants has prayed for time to be granted to the tenants to vacate the premises in question.

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The petitioners-tenants are enjoying the property in question since 1960. The father of the petitioners late Mahaveer Prasad was in possession of the property in question. Initially, the landlord had filed a Suit in 1995 praying for arrears of rent and for eviction. After the said legal proceedings went against the respondent-landlord, he filed a second Suit, namely, SCC Suit No. 18 of 1999, which had remained pending till it was finally disposed of by the order impugned. For the past 20 years, the tenants have been in continued possession despite unwillingness of the landlord to continue them as tenants.

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Since, this Court has affirmed the order passed by the learned Revisional Court, only six weeks' time is given to the petitioners-tenants to vacate the premises in question, subject to an undertaking being given before the learned

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Additional District Judge of vacation of the premises in question, and subject to deposit of entire decreeted amount before the learned court below, which shall be released in favour of the landlord on an application be made in this regard. In case, vacant possession of the property in question is not delivered to the landlord by 30th of June, 2018, the respondent-landlord is free to resort to proceedings for the eviction.

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Order Date :- 9.5.2018 Sazia

Sanjay and 4 Ors. v. Rajkumar

Case brief

What is this about?

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Sanjay and 4 Ors. v. Rajkumar

Case brief

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