Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 5152 of 2018 Petitioner :- Devendra Upashyay Respondent :- Bhudev Prasad Sharma Counsel for Petitioner :- Madhav Jain Counsel for Respondent :- Rishi Chadha
Hon'ble Vivek Kumar Birla,J.
Supplementary affidavit filed on behalf of the petitioner and the affidavits of facts filed on behalf of the respondents today are taken on record.
Heard Sri Madhav Jain, learned counsel appearing for the petitioner and Sri Rishi Chadha, learned counsel appearing for the respondent.
Present petition has been filed seeking setting aside of the judgment and decree dated 13.4.2018 passed by the District Judge, Agra in S.C.C. Revision No. 02 of 2018, Devendra Upadhyay Vs. Bhudev Prasad Sharma and the judgment and decree dated 27.11.2017 passed by the Judge, Small Causes Court, Agra in S.C.C. Suit No. 82 of 2002, Bhudev Prasad Sharma Vs. Devendra Upadhyay filed as Annexures 11 and 9 respectively to the petition.
By the impugned judgment and order dated 27.11.2017 the trial court has allowed the suit filed by the defendant landlord herein. The revision filed against the same was dismissed by the impugned judgment dated 13.4.2018 passed by the District Judge, Agra.
A suit for rent and eviction was filed on the ground that in spite of registered notice no rent has been given and since O.S. No. 276 of 2001 was filed by the defendant against the plaintiff respondent herein for injunction, which was subsequently converted into suit for specific performance, claiming his right on the basis of agreement to sell dated 1.2.1996 and thereby denying the status of plaintiff as a landlord and he has also not paid a single penny towards rent, the relief prayed for is liable to be granted.
The trial court framed eight issues.
On Issue no. 1 regarding landlord and tenant relationship a detailed discussion was made as the plaintiff was claiming that he is in possession on the basis of agreement to sell dated 1.2.1996 and therefore, he is the owner of the house. The trial court found that the agreement to sell was not a registered document and therefore, the same cannot be looked into in evidence and as such there exists landlord and tenant relationship between the parties.
On Issue no. 2 it was found that the defendant has not paid any rent on the ground that there was an unregistered agreement to sell, however, the same cannot be read in evidence and there is default in payment of rent.
Issue no. 3 regarding material alteration was decided against the plaintiff. Issue no. 4 was framed regarding denial of title by the defendant and it was found that defendant has taken a plea that there was an unregistered agreement to sell between the parties which has no evidentiary value and therefore, it is clear that the defendant has denied the title of plaintiff.
On Issue no. 5 it was found that the rent was payable at the rate of Rs. 400/- per month and the water tax was separately payable.
On Issue no. 6 it was found that the notice was validly given which was sent on the correct address given and was returned also and therefore, it was found that there was a valid service of notice.
On Issue no. 7 it was found that although the plaintiff is claiming damages at the rate of Rs. 1500/- per month, but he is entitled for payment of rent at the rate of Rs. 400/- per month and ultimately the relief was granted in favour of the plaintiff accordingly.
The revision was dismissed upholding the aforesaid grounds.
Submission of learned counsel for the petitioner is that even if the agreement to sell was an unregistered piece of document, the defendant shall not be entitled for payment of rent in view of agreement to sell which also provides that no rent shall be payable and as such he is not in default. It was further submitted that non-registration of document, in so far as present proceedings are concerned, will have no adverse effect. It is further submitted that there was no compliance of second part of Section 20 (2) (f) of U.P. Act 13 of 1972 and therefore, in view of the law laid down by this Court in the case of Harswaroop Nigam Vs. A.D.J. 1999 (2) ARC 224 (paragraphs 13 and 14), the suit was not maintainable and the same could not have been allowed. It was submitted that the impugned notice was not in regard to termination of tenancy and as such both the courts below have committed mistake of law in dismissing the same.
Per-contra, learned counsel appearing for the respondent has submitted that Original Suit No. 276 of 2001 was initially filed by the defendant- petitioner herein for injunction which was subsequently converted into suit for specific performance. The said suit was dismissed by the trial court, however, the trial court directed that the amount received by the plaintiff respondent herein be refunded. The first appeal was filed by the landlord respondent herein and his claim was allowed in toto and the defective second appeal filed by the defendant petitioner herein is still pending and no interim order is operating. It was further submitted that the first appellate court has categorically held that the so-called unregistered agreement to sell dated 1.2.1996 is a forged document and this finding is still holding field. He has submitted that admittedly, even as per the defendant-respondent, he was inducted in the premises as tenant and now a finding has come that the agreement to sell was a forged document. He has further submitted that a forged document cannot be relied upon by the defendant petitioner herein.
I have considered the rival submissions and have perused the record.
On perusal of record, I find that in the notice which was validly served on the petitioner, the intention of termination of tenancy of the petitioner has been clearly given in categorical terms, as such, it was a valid notice of termination of tenancy. In so far as the other documents are concerned, suffice to note that admittedly the alleged agreement to sale dated 1.2.1996 was an unregistered document and it has now been held to be a forged document by the civil court of competent jurisdiction. The defendant- petitioner was admittedly inducted in the accommodation in question as a tenant. He is claiming that subsequently agreement to sell was entered into. In such circumstances, I do not find any legal infirmity in the orders impugned herein by which concurrent findings of fact have been recorded.
A reference may also be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited.
This petition is devoid of merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 27.8.2018 p.s.