JUDGMENT Rakesh Tiwari, J.
1. Tenant-petitioner has approached this Court for a writ in the nature of certiorari quashing of impugned judgment and decree dated 4.5.2001 passed by respondent No. 2 in Suit No. 94 of 1999 and judgment dated 20.3.2002 passed by respondent No. 1 in Revision No. 21 of 2001 dismissing the revision and writ in the nature of mandamus commanding the respondents not to evict him from the disputed shop.
2. Briefly stated, facts of the case as disclosed in the writ petition are that respondent No. 3 is the landlord of the disputed shop. He filed S.C.C Suit No. 94 of 1999 in the Court of Judge, Small Causes Court, Bijnor against the tenant-petitioner, inter alia, on the ground that the shop, In question, was given on monthly rent of Rs. 715 to the petitioner on 1.1.1996.
3. The tenant claims that the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') do not apply to the disputed accommodation and that a written rent note was executed between the parties on 1.1.1996 with condition that 10% of the rent will be enhanced after 3 years and in case of non-payment of rent for any month, it shall be paid alongwith 2% interest. It is further claimed that the tenant paid rent till 31.12.1998 and from 1.1.1999 onwards, he did not pay any rent; that registered notice dated 15.9.1999 was sent to the tenant demanding rent from 1.1.1999 till 15.9.1999 amounting to Rs. 6681 and terminating the tenancy and that the tenant neither paid rent nor vacated the disputed accommodation.
4. The petitioner claims that he sent his reply dated 7.10.1999 to the notice dated 15.9.1999 stating therein that rent note was executed on 3.10.1988 but he started his business from 1.10.1988; that the monthly rent of the accommodation was Rs. 650 which he has been paying regularly and the rent was increased to Rs. 715 from 1996 with the consent of the parties.
5. It is alleged that the landlord forged a new rent deed in 1996 and that the arrears of rent are being sent which the landlord has not accepted.
6. The case set up by the petitioner is that the shop, in dispute was constructed in 1983. It is stipulated in the old rent deed dated 3.10.1988 that the disputed shop was constructed in 1983 whereas in the forged rent deed dated 1.1.1996, the shop is allegedly constructed in 1991. The petitioner has drawn the attention of the Court to the appended zerox copies of rent receipts from 1.10.1988 to 31.2.1989; 1.10.1995 to 31,10.1995 and 1.12.1995 to 31.12.1995 as Annexures-6 to 8 to the writ petition to establish that he had paid the rent for the aforesaid period and is not in default thereof and also to his written statement reiterating the facts disclosed in the reply to the notice dated 15.9.1999. The petitioner pleaded that the landlord did not filed original copy of the rent deed dated 1.1.1996 but filed its zerox copy, which is inadmissible under Section 95 of the Evidence Act to establish that he did not pay rent from 1.1.1996 every month.
7. The further case of the petitioner is that the landlord never raised any objection when the aforesaid rent was paid to him in lump sum at one time.
8. It is submitted that arrears of rent of several months amounting to Rs. 6,435 was sent to the landlord the moment he received notice under Section 106 of the Transfer of Property Act and that the Money Orders for the aforesaid amount were received back undelivered hence he cannot be said to be a defaulter as thereafter he has deposited Rs. 8580 under Section 30 of the Act on 17.12.1999 which included all arrears of rent demanded by the landlord. Relying upon the rent receipts said to have been executed by the landlord, he submits that the tenancy started w.e.f. 1.10.1988 and not from 1.1.1996 as is evident from rent receipts appended as Annexures-6 to 8 to the writ petition. It is stated that otherwise the landlord ought to have alleged in his plaint that the disputed shop was constructed in 1991 as such was exempted under Section 2 of the Act but he merely stated that the provisions of the Act do not apply and that the landlord failed to prove default in payment of rent by the tenant.
9. Thus, the contention of counsel for the petitioner, in brief is that the courts below have erred in holding that the provisions of the Act do not apply to the disputed shop without there being any pleading regarding the year of construction of the disputed shop. He urged that the landlord did not file original rent deed dated 1.1.1996 as such, the zerox copy of the rent deed was inadmissible in evidence. He vehemently urged that the petitioner did not commit any default in making payment of rent as claimed by the landlord in his notice of demand. He submitted that the petitioner deposited the entire rent for the year 1999 under Section 30 of the Act in Court which was deliberately refused by the landlord. He dubbed the findings of the courts below as illegal on the question of applying provisions of Section 20(4) of the Act as the same does not apply to the facts of the present case. He also urged that the disputed shop is not exempted by Section 2 of the Act as it was constructed in 1983 and riot in 1991 and that the courts below have wrongly held that the tenancy commenced w.e.f. 1.1.1996 and not from 1.10.1988.
10. The case of the landlord before the courts below was that the shop was constructed in 1991 and tenancy was created vide rent deed dated 1.1.1996 on monthly rent of Rs. 750; that the tenant committed default in payment of rent of Rs. 6,681 for the period between 1.1.1999 to 15.9.1999 as such, notice dated 15.9.1999 terminating the tenancy of the petitioner was issued to the tenant which was replied by the tenant vide letter dated 7.10.1999. It is, therefore, the landlord instituted S.C.C Suit No. 94 of 1999 in the Court of Judge, Small Causes Court, Bijnore for eviction of the tenant and arrears of rent of Rs. 6,691 together with damages for unauthorized occupation from 15.9.1999 onwards.
11. Per contra, the contention of the counsel for the respondent-landlord that the disputed shop was constructed in 1991 and both the courts below have recorded concurrent finding of fact in this regard, as such, it is not open to the tenant to seek judicial review of such finding of fact. He urged that evidence cannot be led and arguments cannot be advanced contrary to the pleadings. He vehemently urged that the petitioner being an unauthorized occupant is not entitled to any relief.
No other point has been argued by the parties.
Conclusions:
12. It appears from the record that the landlord filed original rent deed dated 1.1.1996 (paper No. 26-Ga) and, the tenant filed zerox copy of rent deed dated 3.10.1988 (paper No. 54-Ga) before the court below and after appraisal of documentary and oral evidence, the trial court decreed the suit of the landlord which was upheld by the revisional court.
13. Having heard arguments advanced by counsels for rival parties and gone through the records, it is evident that the landlord had filed original rent deed (paper No. 26-Ga) which is also apparent from the following finding recorded by the trial court:
ih0 MCY;w0 &1 eks0 ekgflu us vius c;ku esa vius okn&Ik= dk leFkus djrs gq;s ;gk dgk gS fd esjh ,d nqdku iq[rk nf{k.k if'peh lkeuh ,d [kuheeSa&&&vQxkuku /kkeiqj esa gSA ftlesa izfroknh 1&1&96 ls 715 #I;s ekfld fdjk;s ij gSA fookfnr nqdku o"kZ 1991 dh cuh gSA fdjk;snkjh nsus ls iwoZ ,d e;nnk'r fdjk;kukek fn0 1-1-96 dks izfroknh us rgjhj djkdj vius gLrk{kj dj fn;k Fkk tks dkxt la0 x&26 Ik=koyh ij gSA ftls Ik<+us ds mijkUr izfroknh us vius gLrk{kj esjs lkeus fd;s Fks o eSus izfroknh ds lkeusa fd;s Fks vkSj xokgku eks0 eqLrQk vkkQ us nksuksa us gekjs lkeus gLrk{kj fd;s Fks ftUgsa eSa f'kuk[r djrk gwWA ;s fdjk;kukek nksuksa i{kksa dh jtkeUnh ls lqjsUnz dqekj xqIrk us VkbZi fd;k Fkk vkSj vius gLrk{kj fd;s FksA ftUgsa eSa f'kuk[r djrk gwA fdjk;snkjh ekg o ekg izfroknh us fnukad 96 ls 31&7&96 rd dk 500 #I;s fdjk;k lkr ekg dk ckotwn ryc rdkts ds fd;k FkkA ftldh eSus jlhn izfroknh dks nh FkhA ,d dkcZu izfr ij izfroknh ds gLrk{kj djk;s FksA ftUgsa eSa f'kuk[r djrk gwA fdjk;s dh ewy jlhn izfroknh ds ikl gSA ckdh jlhnsa fn0 31&12&98 rd dh Ik=koyh ij x&28 yxk;r 31 gSaA ftl ij izfroknh ds gLrk{kj gSaA izfrokmnh dks eSaus fdjk;k vnk;xh u djus ij ,d uksfVl vius odhy lkgc Jh fgrs'k HkVukxj ls fn0 15&9&99 dks fn0 1&1&99 rd dk fdjk;k ryc fd;k Fkk tks izfroknh dks fn0 16&9&99 dks izkIr gks x;k FkkA &&&& vr% Ik=koyh ij miyC/k lk{; ds vk/kkj ij bl fu"d"kZ ij igqWprk gw fd izfroknh nqdku 1&1&96 ls 715 #I;s ekfld dh nj ls fdjk;snkj gS vkSj izfroknh 1&10&88 ls fookfnr nqdku dk fdjk;snkj ugha gS vkSj ;g nqdku 1991 dh cuh gS bl dkj.k bl eqdnesa esa ;w0 ih0 ,DV [email protected] ds izkfo/kku ykxw gksrs gSA
14. The trial court also found that the tenant had admitted in his cross-examination that he had not deposited the entire rent. Relevant finding of the trial court to this effect is as under:
oknh us ;g okn izfroknh ds fo#) fookfnr nqdku dk fdjk;k olwy djus o dCtk izkIr djus gsrq izLrqr fd;k gS vksj oknh us izfroknh ls 1&1&99 ls 15&9&99 rd ds cdk;k fdjk;s dh ekax rFkk bl ij 2 izfr'kr nsjh kqYd o [kpkz uksfVl vkfn dh ekax dh gSA bl laca/k esa izfroknh dks oknh us [email protected] uksfVl fnukad 15&9&99 dks fdjk;snkjh lekIr djus o cdk;k fdjk;s dh ekax ds lEcU/k esa fd;k ftldh jftLVh dh jlhn x&8 gS vkSj x&9 izkfIr Lohd`fr jlhn gSA blls Li"V gS fd izfroknh dks cdk;k fdjk;s ds laca/k esa fu;ekuqlkj oknh us uksfVl fn;k gS tks izfroknh ij rkehy gqvkA x&68 O;kikj dj vf/kdkjh [k.M&2 ?kkeiqj }kjk fn;k x;k izek.k Ik= gS ftlls Li"V gS fd 1&4&96 ls QeZ pkS/kjh cwV gkml iathd`r gqbZ gSA Ik=koyh ij tks jlhnsa oknh dh vksj ls dkxt la0 x&27 yxk;r 31 nkf[ky dh x;h gS mu jlhnksa ij Mh0 MCY;w0 &1 us vius gLrk{kj gksuk Lohdkj fd;k gS x&27 ls ;g Li"V gS fd izfroknh us 1&1&96 ls 31&7&96 rd dk 715 #I;s izfrekg dh nj ls 5005 #Ik;s fdjk;k pqdrk fd;k gS rFkk izfroknh us x&28 ds }kjk 1&8&96 ls 30&9&96 rd dk nks ekg dk fdjk;k] 1430 #Ik;k vnk fd;k rFkk x&30 ds ek/;e ls izfroknh us 1&6&98 ls 31&7&98 rd dk fdjk;k 1430 #Ik;s 715 #Ik;s ekgokj dh nj ls pqdrk fd;k gS x&31 ds ek/;e ls 1&12&98 ls 31&12&98 rd dk fdjk;k 715 #Ik;s pqdrk fd;k gS blls ;g fu"d"kZ fudyrk gS fd izfroknh us oknh dks 31&12&98 rd dk fdjk;k pqdrk fd;k mlds Ik'pkr~ oknh us izfroknh ls tks fdjk;k fnukad 1&1&99 ls ekaxk gS mldks izfroknh us oknh dks pqdrk ugha fd;k gSA Mh0 MCY;w0&1 us viuh ftjg esa ;g Li"V dgk gS fd eSaus bl eqdnesa esa [kpkZ eqdnek oknh ds odhy dh Qhl o fdjk;s ij 9 izfr'kr C;kt bl eqdnesa esa tek ugha fd;k gSA vr% ;fn izfroknh ds bl rdZ dks eku fy;k tk;s fd bl eqdnesa essa ,DV [email protected] ds izkfo/kku ykxw gksrs gSa rks Hkh izfroknh dks dksbZ ykHk ;w0 ih0 ,DV [email protected] dh /kkjk 204 ls ugha feyrk gSA D;ksafd izfroknh us ftjg ls ;g Lo;a Lohdkj fd;k gS fd eSaus eqdnes esa [kpkZ eqdnek oknh ds odhy dh Qhl o fdjk;s ij 9 izfr'kr C;kt bl eqdnes esa tek ugha fd;k gS vkSj mlus flQZ 715 #I;s ekgokj ds fglkc ls fdjk;k tek djuk crk;k gSA vr% Ik=koyh ij miyC/k lk{; ds vk/kkj ij eSa bl fu"d"kZ ij igqprk gw fd izfroknh ij fn0 1&1&99 ls fdjk;k cdk;k gksus ij oknh us izfroknh dks [email protected] uksfVl ds ek/;e ls fdjk;k o fdjk;snkjh lekIr djus dk uksfVl fn;k tks izfroknh ij O;fxr :Ik rkehy gqvk vkSj blds ckotwn Hkh mlus le; ds vUnj oknh dk cdk;k fdjk;s ij Hkqxrku ugha fd;kA vkSj bl izdkj uksfVl nsus ds 30 fnu ckn izfrknh dh fdjk;snkjh oknh us lekIr dj nh vkSj bl izdkj Ik=koyh ij miyC/k lk{; ds vk/kkj ij eSa bl fu"d"kZ ij igqprk gw fd izfroknh fdjk;k nsus esa uknsgUn jgk gS vkSj bl dkj.k fookfnr nqdku ls csn[kyh fd;s tkus ;ksX; gSA
15. The revisional court also found that the landlord specifically pleaded that the provisions of Act do not apply to the disputed shop which was specifically not denied by the tenant. It found that the trial court rightly relied upon the original rent deed dated 1.1.1996. It held that the finding of the trial court that the disputed building was constructed in 1991 is based on relevant and cogent evidence and that in the cross-examination the tenant admitted to have committed default in payment of rent. In State of West Bengal v. Atul Krishna Shaw and Anr. 1991 Supp (1) SCC 414, it has been held that finding based on cogent reasons is binding before superior courts. Same view has been reiterated in Brij Nandan Sahai Hajela v. IIIrd Additional District Judge, Shahjahanpur and Ors. (1996) 1 ARC 165 : 1996 (1) AWC 2.42 (NOC). In the facts when the landlord had specifically pleaded that the provisions of the Act do not apply to the disputed shop, which was not specifically denied by the tenant, it is not open to the petitioner to assail such finding in the writ petition as has been held in Bhim Singh (dead) by L.Rs. and Anr. v. Kan Singh and Ram Swamp Gupta (dead) by L.Rs. v. Bishun Narain Inter College and Ors. . Since both the courts below have recorded a concurrent finding of fact that the petitioner is an unauthorized occupant, he is not entitled to any equitable relief in the writ jurisdiction as has been held by Hon'ble the Apex Court in E. Parasuraman (deceased by LRs.) v. Doraiswamy AIR 2005 SC 376 : 2006 (8) SCC 658.
16. No other point has been argued.
17. The petitioner has failed to show any illegality or infirmity in the impugned judgments and decree passed by the courts below warranting interference in the writ jurisdiction.
18. For all the reasons stated above, the writ petition fails and is dismissed. Tenant-petitioner will handover peaceful possession of the disputed shop to the respondent-landlord within a month from today and make payment of arrears of rent, if any, within two months from today. In case the disputed shop is not vacated and payment of arrears of rent is not made within the aforesaid stipulated period, he will be evicted by Police force and arrears of rent will be recovered as arrears of land revenue.
Costs:
19. In so far as cost is concerned, Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India , has held that:
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
20. Thus, from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra), it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted Or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
21. Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006 Nizamuddin v. Shakoor Ahmad after considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter-XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of Civil Procedure has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.
22. Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of arrears of rent, the petitioner will also pay cost of Rs. 10,000 which shall be deposited by him before the District Judge, Bijnore within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlord without furnishing any security within two months from the date of deposit. In case the petitioner fails to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.