Court No. - 30
Case :- S.C.C. REVISION No. - 79 of 2018 Revisionist :- Neelu Rana Opposite Party :- Anju Jain Counsel for Revisionist :- Anubhav Chandra Counsel for Opposite Party :- Chetan Chatterjee
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the revisionist and Sri Chetan Chatterjee, learned counsel for the opposite party and perused the record.
Present revision has been filed challenging the impugned order dated 17.11.2017 passed by the Additional District Judge, Court No. 7, District Saharanpur in SCC Case No. 10 of 2016 (Smt. Anju Jain vs. Neelu Rana).
SCC suit filed by the plaintiff-respondent for rent and eviction was allowed by the trial Court. The suit was filed on the ground that in the premises in question the defendant is tenant on monthly rent of Rs. 14,000/- including tax and as such, the provisions of UP 13 of 1972 are not applicable. It was further alleged that a notice dated 2.4.2016 was sent to the defendant by registered post on her correct address, which was duly received by her and she had also replied the same on incorrect facts. The suit was filed also on the ground that the tenancy has been terminated and there is default in payment of rent, which is Rs. 2,42,666/-. Written statement was filed denying the allegations made in the plaint and it was asserted that no notice was received by the defendant terminating her tenancy. She however admitted that her late husband was tenant in the premises in question for rent of Rs. 7,500/- including taxes, which was subsequently increased to Rs. 14,000/- and the defendant is payment Rs. 15,000/- as rent. It was asserted that a sum of Rs. 3,00,000/- was given to the plaintiff and she had also filed a suit for injunction against the plaintiff. An application for amendment to include counter claim filed by the defendant was rejected. In reply to the application for counter claim, specific case of the plaintiff is that no such amount of Rs. 3,00,000/- was given to the plaintiff. In documentary evidence the plaintiff filed registry receipt, notice, the original reply dated 25.4.2016 given by the defendant and two cheques given by the defendant towards payment of arrears, which were dishonoured.
It also appears that initially the application filed by the defendant under Order 15 Rule 5 CPC was allowed, however, the same was not honoured by her and ultimately her defence was struck out.
Six issues were framed by the trial Court. On issue no. 1 it was found that there is a relationship of landlord-tenant. On issue no. 2 it was found that rent is Rs. 14,000/- per month since 2015, which did not include the electricity charges. On issue no. 3 it was found that UP Act 13 of 1972 is not applicable in the case. Issue no. 4 was regarding service of notice and default in rent. On this issue it was found that notice was given to the defendant and she has also given the reply of the same in which she has admitted the tenancy. The Court below found that the written statement was filed and the counter claim was established as per the notice given to the defendant. It was also noticed that when the defence of defendant was struck out on 25.7.2017, on the same day she supplied two cheques, however, since it did not contain the name of the plaintiff, the same were returned and thereafter the same were again given to the plaintiff and received by the plaintiff, which was accepted under protest and subsequently cheques were dishonoured as a direction to the bank was given by the defendant to stop payment. Thereafter, since the defendant did not appear, therefore, her counter claim was also rejected on 13.3.2018. It was claimed by the defendant that she had given loan of Rs. 3,00,000/- to the plaintiff in cash, however, there is no evidence of the same on record. As such, it was found that notice was duly served on the defendant and she had submitted her reply and she was in default of rent. On issue no. 5 the plaintiff was found to be entitled to payment of arrears of rent and issue no. 6 regarding relief was accordingly decided in favour of the plaintiff.
Submission of the learned counsel for the revisionist is that an amount of Rs. 3,00,000/- advanced to the plaintiff is still lying with the plaintiff and the same is liable to be adjusted in compliance of Order 15 Rule 5 CPC. It was further submitted that notice dated 2.4.2016 was never served upon the defendant-revisionist and in the alleged notice her father's name was not shown and the service of notice was not proved by producing evidence. A ground has further been taken that once service of notice was denied by the defendant in her written statement, then merely filing of copy of alleged reply of defendant will not be sufficient to prove the service of notice. It was further submitted that mere averment of sending of notice on correct address is not sufficient to presume service of notice unless the same was received or refused. Thus, crux of the argument of learned counsel for the revisionist is that once the service of notice was disputed and denied by the defendant, burden was on the plaintiff to prove the same. In support of his submissions, he has placed reliance on the judgements of this Court rendered in the cases of Ashraf vs. Kailash Prasad (Since Dead) & another, 2017 (1) ARC 292 and in Satish Chandra @ Satish Pandit vs. Manohar Lal Gera, 2016 (3) ARC 338.
Per contra, learned counsel for the opposite party has supported the impugned order and submitted that notice was duly served on the defendant-revisionist and the same was replied by her. As such, finding of fact is not liable to be disturbed in the revision.
I have considered the rival submissions and perused the record.
On perusal of the record, I find that in paragraph 15 of the written statement entire contents of plaint including the assertions made by the plaintiff that notice was received by the defendant and was replied by the defendant on incorrect facts, is denied and is not accepted, has been made. In paragraph 18 of the written statement, it has been asserted that the notice dated 2.4.2016 was not received by the defendant, however, in the entire written statement or even in the revision it has not been asserted that reply of the notice given by the defendant as placed on record was a forged document and no prayer for hand writing expert etc. was made. No such pleading was made in the written statement. In paragraph 15 of the written statement reply of the notice has been denied generally. Although in paragraph 26 of the written statement it has been stated that once notice was not received, there was no occasion to reply the same, however, it has nowhere been asserted that the reply filed by the defendant on record a forged document. The handing over of Rs. 3,00,000/- as loan is not supported by any evidence. Undisputedly, cheques were issued by the defendant but the same were dishonoured as the Bank was directed to stop payment of the same. Case of the plaintiff was supported by documentary evidence and statement of the plaintiff and thus she discharged her initial burden and there is nothing on record contrary to the same.
All such findings have been appreciated on the basis of documentary and oral evidence on record and therefore, I do not find any legal infirmity or jurisdictional error in the order impugned herein.
In such view of the matter, I do not find any good ground to interfere in the order of the court below in the present revision and the same is accordingly dismissed.
At this stage, learned counsel for the revisionist prays that some time may be granted to vacate the premises.
Having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that:
(1) The revisionist-tenant shall handover the peaceful possession of the premises in question to the landlord- opposite party on or before 31.1.2019.
(2) The revisionist-tenant shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The revisionist-tenant shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The revisionist-tenant shall pay damages @ Rs. 15,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the revisionist-tenant shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the revisionist- tenant shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
There shall be no order as to costs.
Order Date :- 25.7.2018 Abhishek