This is a defendants Civil Revision under Section 25 of the U.P. Provincial Small Causes Court Act 1887 against the order dated 16.08.2011 passed in SCC Suit No. 11 of 2009 (Kailash Chand Vs Rashid) by the Additional District Judge, Court no. 12 Bulandshahar whereby the suit has been decreed for ejectment and damages for use and occupation.
According to Sri Udayan Nandan learned counsel for the revisionist the opposite party plaintiff is owner and landlord of Shop No. 242/4 Mohalla Deputyganj Gali, Post Office, Bulandshahar and the revisionist is a tenant since 01.05.1996 wherefore a lease deed dated 17.05.1996 was executed between the revisionist and the wife of the plaintiff who was owner and landlord at that time. The lease provided that the rent of the shop would be Rs. 600.00p per month with a stipulation of 25% increase after expiry of five years of tenancy. The lease deed mentioned the purpose for which the shop was let out and it was for business of cloth and shoes but the purpose could be changed with the written consent of the landlord. The wife of the plaintiff died on 29.03.2005 hence by virtue of the will dated 20.01.2004 the plaintiff became owner and landlord of the shop and started receiving the rent from the revisionist.
The plaintiff filed the instant suit for a decree of ejectment of the defendant from the shop including any other person who may be found at the shop and for a decree of Rs. 43,593.75p rent and damages for use and occupation against the defendant including future damages at the rate of rent. The plaint allegations were that the defendant was not doing any business in the shop but was doing business in Delhi and was living in Delhi. He had sub-let the shop to his brother namely Adil who was doing the business of re-filling of gas cylinders etc. A Suit No. 299 of 2005 (Rashid Khan Vs Kailash Chand) was filed by tenant in the court of Civil Judge (Junior Division) Bulandshahar for permanent injunction against the owner landlord -2- (Kailash Chand) which was decreed on 14.12.2006 but on an Appeal No. 208 of 2006 (Kailash Chand Vs Rashid Khan) the decree of the Trial Court was set aside and the appeal was allowed on 13.02.2009 by the court of IX th Additional District Judge, Bulandshahar. A second appeal filed there against by Rashid Khan is pending. The plaintiff gave notice dated 28.04.2009 for arrears of defaulted rent of more than four months which was received on 01.05.2009 by Adil the brother of the tenant but no reply was given to the notice. The notice was to quit and the tenancy was terminated. The tenant neither paid the rent nor vacated the shop. The landlord claimed arrears of rent from 01.07.2005 to 30.04.2006 at the rate of Rs. 750/- per month and at the rate of Rs. 937.50p per month from 01.05.2006 upto date. He also claimed damages for use and occupation from 01.07.2009 to 15.07.2009 at the rate of Rs. 1,406.25p.
The defendant-revisionist filed written statement and denied that any valid rent deed was executed and since the rent deed relied upon by the plaintiff was unregistered and unstamped it was inadmissible in evidence. It was averred that the revisionist was doing business in the shop of re-filling of gas cylinders since inception and his brother Adil merely sat in the shop in the absence of the revisionist. Sub-letting was denied. The revisionist denied service of notice upon him and stated that service of notice on his brother Adil was not a proper service. The revisionist also claimed benefit of Section 20 (4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (herein after referred to as U.P. Act No. XIII of 1972) since he had deposited the entire rent and other dues on the date of first hearing of the suit.
In his evidence the plaintiff himself as P.W. 1 gave his statement and filed his affidavit (Paper No. 36-A-2) and also faced cross-examination by the defendant revisionist. He also filed documentary evidence as per List No. 7 C-2 to 03 and List 25 C-1 to 07.
The defendant revisionist also examined himself and filed affidavit (Paper No. 39 A-2) and was cross-examined. He also filed documentary evidence as per List 47 C-1.
The Trial Court framed eight issues. The issue no. 8 on valuation of the suit was not pressed.
Issue no. 1 was as to whether the lease deed dated 17.05.1996 was executed between the wife of the plaintiff and the tenant revisionist. The Trial Court found that -3- in Suit No. 299 of 2005 filed by the tenant revisionist he had himself alleged in that plaint that such a lease deed was executed and had in his oral statement admitted the execution of the lease deed. Therefore his denial in the present suit was not believed by the court and it held that the lease deed was executed.
However the Trial Court held that the lease deed was unregistered and unstamped hence it was not admissible in evidence.
The second issue framed by the Trial Court was as to whether it was agreed between the tenant revisionist and the wife of the plaintiff that there will be a 25% increase in the rent of the shop after expiry of five years of tenancy. The Trial Court considered the oral statement of the plaintiff and his affidavit. The denial made by the tenant revisionist was tested on his averments made in his plaint of Suit No. 299 of 2005 and the written statement filed therein which were not denied by the revisionist. The Trial Court held that in the appeal filed against the judgment of Suit No. 299 of 2005 the appellate court had recorded its finding on the issue of 25% increase in rent every five years and had allowed the appeal filed by the plaintiff. Even in the present proceedings the tenant revisionist has only denied the fact by saying that in the earlier suit he had taken the plea on the advise of his counsel. On these evidence the Trial Court decided Issue no. 2 and held that the tenant revisionist had agreed to increase of rent at the rate of 25% every five years.
The third issue framed by the Trial Court was whether the tenant revisionist had taken the shop on rent for the purpose of doing business of cloth and shoes and without written consent of the landlord he changed his business. The tenant revisionist denied that there was any such agreement between him and the wife of the plaintiff. To such effect he filed his affidavit in evidence (Paper No. 39 A-2) whereas the plaintiff gave his oral statement as P.W. 1 and also filed his affidavit (Paper No. 36 A-2). The plaintiff also brought on record the pleadings of the parties in the tenant revisionist's Suit No. 299 of 2005. The Trial Court considered such pleadings and evidence of Suit No. 299 of 2005 in light of the fact that the tenant revisionist had failed in those proceedings when the appeal filed by the landlord (Appeal No. 208 of 2006) was allowed and such agreement was accepted by the court. It also found that in the present proceedings the tenant revisionist had admitted that the business of re-filling gas cylinders is being done in the shop. The issue was therefore decided by holding that the shop was taken on rent by the tenant revisionist for the purpose of doing business of cloth and shoes but had changed the business without written consent of the landlord which right he did not have.
Issue No. 4 was as to whether the tenant revisionist was in arrears of rent at the rate of Rs. 750/- per month for the period 01.07.2005 to 30.04.2006 and was in arrears of rent at the rate of Rs. 935.50 per month for the period 01.05.2006 to 31.05.2009. This issue was decided by the Trial Court on the pleadings made by the tenant revisionist in his written statement. The tenant revisionist had admitted that the rent was subsequently increased to Rs. 750/- per month under pressure. Moreover apart from a vague denial in paragraph 12 of the written statement he had not made a specific denial of the fact. The issue was decided in the affirmative in favour of the plaintiff.
Whether the tenancy of the tenant revisionist was terminated by a valid notice was the fifth issue decided by the Trial Court. It held that the notice was sent by the plaintiff to the tenant revisionist at the correct address and that was the address given by the tenant revisionist in his Suit No. 299 of 2005 filed against the landlord. The notice was sent by registered post acknowledgement due and the acknowledgement due receipt was on record as Paper No. 10 C-2. The registry receipt was Paper No. 9 C-2 and carbon copy of the notice was Paper No. 8 C-2. The notice was received by Adil the brother of the tenant revisionist. The Trial Court perused the statement given by the tenant revisionist in his earlier Suit No. 299 of 2005 and held that he himself had stated that during his absence from the shop his brother Adil sits in the shop. He had stated that he has a mobile shop business in Delhi where he lives with his family. The Trial Court held that Adil was the real brother of the tenant revisionist and it was no where stated that Adil was not living in the same house. It was the case of the tenant revisionist that he had estranged relations with his brother. But the said statement on affidavit was disbelieved and discarded by the Trial Court for the reason that when there are no pleadings on that point then evidence cannot be lead upon it. Hence paragraph 08 of his affidavit Paper No. 39 A-2 cannot be read in evidence. The Trial Court recorded that the tenant revisionist had made one statement in Suit No. 299 of 2005 on his brother sitting in the shop in his absence and a contrary stand was taken in the present suit regarding service of notice on his brother Adil as not a proper service on him. It was found to be a stand taken only for serving his purpose in this suit. The issue was decided in favour of the plaintiff.
The sixth issue was whether the tenant revisionist had sublet the shop to his brother Adil. The Trial Court relied upon the findings given in Appeal No. 208 of 2006 arising out of Suit No. 299 of 2005. The suit was filed by the tenant revisionist against the landlord. It was decreed. But in appeal the decree was set aside. The -5- appellate court considered the evidence of the parties and had concluded that Adil the brother of the revisionist was in unauthorized possession of the shop and that the tenant revisionist himself admitted that he alongwith his family was living in Delhi and that he was doing his business in Delhi. The Trial Court held that the brother of a tenant does not come in the family of a tenant. It held that sub-letting is a matter of secret arrangement between a tenant and sub-tenant hence it can be proved only by circumstances, surroundings and facts. Adil was not produced as a witness in this case and no evidence was filed by the tenant revisionist to show that he himself was doing business in the shop. The issue was decided by holding that the tenant revisionist had sub-let the shop to his brother Adil.
On Issue No. 7 the Trial Court held that there was no evidence to prove that a sum of Rs. 7000/- was given by the tenant revisionist as a security deposit for rent of the shop. But on Issue No. 8 it held that even if the benefit of Section 20 (4) of U.P. Act No. XIII of 1972 was available to the tenant revisionist yet in view of the finding that there was a change in the nature of business in the shop without written consent of the landlord and that he had sub-let the shop, he cannot escape from a decree of ejectment. The suit was decreed.
Sri Udayan Nandan learned counsel for the revisionist has made three submissions. The first is that the lease deed being an unregistered document and unstamped was inadmissible in evidence, the second is that when the revisionist was entitled to the benefit of Section 20 (4) of U.P. Act No. XIII of 1972 then the decree of ejectment could not be passed and the third is that no sub-letting was done by the tenant since his brother was sitting in the shop due to temporary absence of the tenant.
In support of his submission he has placed reliance on the following decisions:-
(1) (1994) 5 SCC 9- United Bank of India Vs Cooks and Kelvey Properties and states that when the tenant is not receiving any monetary consideration and is paying the rent and paying electricity charges then it cannot be held that it had sub-let the premises to the Trade Union.
(2) (1985) 4 SCC 333- Harbans Lal Vs Jagmohan Saran- He states that when the tenant allows his agent to occupy the premises then it is not sub-letting and cannot be a deemed vacancy.
(3)1984 (1) ARC 679 - Jagdish Prasad Vs Smt. Angoori Devi, -6- (2005) 1 SCC 481- Mahendra Saree Emporium II Vs G.V. Srinivas Murthy. He states that the mere presence of a person other than a tenant at the premises is not sufficient to record a finding that sub-tenancy has been created. It has to be found out who is in legal possession.
(4) 2007 (2) AWC 1649-Mohd. Akram Husain Vs. Baijnath and 2009(2) AWC 1272 (SC) Avinash Kumar Chauhan Vs. Vijay Krishna Misra. He states that there is a difference in non-registration of a document under the Registration Act and its effect from an unstamped document that is compulsorily required to be stamped. An unstamped document is hit by Section 35 of the Stamp Act and cannot be read in evidence even for a collateral purpose.
Sri Manoj Kumar Sharma learned counsel for the plaintiff-opposite party landlord owner has argued that the issue of the lease deed as evidence is not involved in this case since the Trial court has itself held it to be inadmissible in evidence for being unstamped while deciding issue No.1. He submits that the other issues have been decided on the evidence lead by the parties and their pleadings as also on the findings recorded by the Appellate Court in the earlier litigation between the same parties. He states that the decree of ejectment has been granted when it has been held that the shop has been sub-let by the Revisionist.
In support of his submission he has cited the following decisions:-
(1)2004 JCLR-2-922: Ram Kunwar Vs. Iind Additional District Judge, Banda, 1978 ARC 103-Smt. Ram Sarni Devi Vs. Smt. Raisa Begum.
He states that a brother would not be a member of family of a tenant.
(2) 1979(5) ALR 245- Radha Raman Vs. Bhogi Ram, AIR 1963 Orissa 45 Harihar Rajguru Mohapatra Vs. Nabalkishore Rajaguru Mohapatra and AIR 1955 Allahabad 361 Mst. Ulfat Vs Zubaida Khatoon. He states that there will be a binding effect of an admission made in an earlier suit even if such admission is denied in a subsequent suit.
(3) 1998 (32) ALR 740-Tirumala Tirupati Devasthanam Vs. KM Krishnaiah to state that a previous judgment is admissible in evidence even if the other party was not a party in such case.
(4) AIR 1987 SC 1242-Ram Sarup Gupta Vs. Bishun Narain Inter -7- College, 1981 ARC 159-Sagir Ahmad Vs. Additional District Judge, Agra. According to him in case there is a question about lack of pleadings involved it is not desirable to place undue emphasis on form but the substance of the pleadings should be considered.
(5) 1977 SCC (3)-540-Thiru John Vs. Returning Officer. He states that when there is an admission of a party it is substantive evidence and is enough to shift the onus on the maker.
(6) 1995(2) ARC 148- Mahadeo Vs. Vith Additional District Judge, Fatehpur. He states that when finding is recorded by the Trial Court after considering the evidence available on record and although there was no evidence showing payment of rent by the sub-tenant such finding cannot be interfered in a Revision under Section 25 of the Provincial Small Causes Courts Act.
The first submission of learned counsel for the revisionist is subject matter of the decision given by the Trial Court on Issue No. 1. The Trial Court has recorded that the lease deed was unregistered and unstamped. It recorded a finding that the lease deed was executed between the parties but because it was unstamped it could not be read in evidence.
Section 35 of the Stamp Act creates a bar for such unstamped document to be read in evidence. It cannot be read in evidence even for a collated purpose. The view of the Trial Court is clearly in accordance with law. The Trail Court did not base its findings on the lease deed. It considered the circumstances pleaded by the revisionist in his own earlier suit against the landlord and also his contradictory pleadings in the present suit and came to a conclusion that the parties did enter in a relationship of landlord and tenant. In fact that was the very basis of the earlier suit filed by the tenant revisionist and it is also the basis of the present suit. In the written statement the revisionist has not denied such relationship. In fact he has admitted the relationship of landlord and tenant and also that the rent was to increase by 25% every five years. Therefore to argue that the decision of the Trial Court on issue No.1 is illegal or that it has relied on the lease deed as an evidence is misplaced. Since the submission of learned counsel for the revisionist is exactly what the Trial Court has done there can be no error found in the finding or conclusion of the Trial Court on issue No.1. Clearly, when the lease deed was unstamped and under the Stamp Act it was required to be stamped then it was inadmissible in evidence for the reason of it -8- being unstamped. The Trial Court has declared that it is inadmissible in evidence. There is no error or illegality in the decision taken by the Trial Court on issue No.1.
The second submission of learned counsel for the tenant-revisionists is that the tenant has complied with the provisions of Section 20(4) of the U.P. Act No.XIII of 1972 hence he is entitled to the benefit thereunder. This submission is also quite misplaced. If it had been a case of a simplicitor suit for arrears of rent the tenant could be made entitled to the benefit of Section 20(4) of U.P. Act No. XIII of 1972. This is a proceeding of default in payment of four months rent as also of Sub-letting. The fact that the defaulted rent was deposited on the first date of hearing does not absolve the tenant of sub-letting. That is a totally separate ground available to the landlord to seek ejectment of the tenant. In case sub-letting is proved then it is a ground alien from his reason of seeking ejectment on the ground of default in payment of rent. Hence what has to be considered in this case is that although the tenant-revisionist has deposited the defaulted rent on the first date of hearing then whether he is liable to be ejected for sub-letting. Clearly, the deposit of defaulted rent under Section 20(4) of the U.P. Act No.XIII of 1972 can have no relation or concern with the conduct of sub-letting the premises. The benefit of Section 20(4) of the U.P. Act No. XIII of 1972 is available to a tenant but because he has sub-let the premises in violation of the terms of his tenancy he can be ejected on the ground of sub-letting. The Trial Court has rightly considered this issue and ruled against the tenant-revisionist on issue No.6 & 8. No error can be found in the decision of the Trial Court.
The third and last submission of learned counsel for the tenant-revisionist is that no sub-letting was done and hence the impugned judgment is liable to be set aside. This submission is advanced against the findings of fact recorded by the Judge, Small Causes Court. He has considered the evidence to give his conclusions. The evidence was that the brother of the tenant was found sitting in the shop. The tenant himself pleaded that he is doing business in Delhi. He also stated that he along with his family is living in Delhi. According to him only during his absence his brother Adil sits in the shop. The Trial Court has found that there was no evidence filed by him to prove that he was at all doing business in the shop. No evidence was filed to prove that the tenant revisionist was doing business in the shop although his brother was sitting in the shop. In case the tenant revisionist was still doing business in the shop he could have filed evidence to such effect. In fact no evidence was filed as to who was doing business in the shop. The brother of the tenant revisionist was not -9- produced as a witness to say that he was sitting temporarily in place of his brother in his brothers temporary absence. No record of transaction of business during the period of absence of the tenant revisionist was brought on record. Therefore the tenant revisionist failed to prove that his brother was sitting in the shop to do business of cloth and shoes on behalf of the tenant revisionist in his absence as a family member. Therefore to say that he was an agent or person sitting for the tenant revisionist would be incorrect in the absence of any evidence.
It is very difficult for a landlord to prove sub-letting where a brother of the tenant is sitting in the shop. Sub-letting is a private affair between the tenant and the sub-tenant. The landlord is not privy to such an understanding. The circumstances of such a sub-letting can be gathered from the surrounding events and facts. In this case the tenant admittedly lives with his family in Delhi and is doing his own business there. His brother was found in the shop in dispute. The tenant-revisionist accepts that when he is absent his brother sits in the shop. This circumstance indicates that the tenant revisionist is doing business in Delhi and his family lives with him in Delhi. When he is earning his livelihood in Delhi with his family then he is definitely settled in Delhi and is not doing business in the shop in dispute. He has not filed any evidence to show as to when he sits in the shop in dispute. In the absence of such evidence the circumstance is that his brother Adil is doing business in the shop. Whether he is getting any monetary consideration from his brother for using the shop is privy to him. The landlord cannot lead any evidence on a fact privy to the tenant and his sub-tenant. Therefore the circumstances indicate of a sub-letting by the tenant to his brother. The brother is not a member of the family of a tenant. Hence it cannot be held that a family member of the tenant was found sitting in the shop in dispute. The tenant revisionist took the shop on rent for doing business of cloth and shoes where as his brother Adil is doing the business of re-filling of gas cylinders. Clearly sub-letting is proved on the circumstances of this case. The submission of learned counsel for the tenant revisionist is against the record hence it cannot be accepted.
Insofar as the decision in the case of Bank of India (supra) is concerned there is no evidence in this case that the sub-tenant is paying the rent. But since a finding is recorded that the tenant is doing business in Delhi and living in Delhi with his family he is clearly not doing business in the shop in dispute. Moreover the above case related to the Bank and the premises used by the Trade Union of the employees of the Bank.
The case of Harbans Lal (supra) related to a tenant and his agent. The present -10- is not a case of the tenant revisionist and his agent. The business of the tenant was of cloth and shoes. He shifted to Delhi. The brother Adil is doing the business of re-filling gas cylinders. Therefore he was not an agent of the tenant in the tenants business of cloth and shoes but was a sub-tenant doing his own independent business of re-filling gas cylinders.
In the case of Jagdish Prasad (supra) it was held that mere presence of a person in the shop is not sufficient to record that sub-tenancy has been created but it is to be found as to who is in legal possession. In the present case admittedly the revisionist was the tenant. He shifted to Delhi with his family. He admittedly is doing his business in Delhi. He does not say that he is living in Bulandshahar. He may have his ancestral house in Bulandshahar but that is not a circumstance to hold that he is doing business in Bulandshahar. He had taken the shop in dispute on rent. He started the business of cloth and shoes. But then he shifted to Delhi with his family. He started another business in Delhi. He started living in Delhi in connection with his business. The shop in dispute is at Bulandshahar. His brother occupied the shop and started business of re-filling gas cylinder therein. Therefore although the tenant revisionist was the tenant he could have been in legal possession till he did business in the shop. But when he has moved away from Bulandshahar with business and family he was no longer in legal possession of the shop. Even the business of cloth and shoes is not being done in the shop. His brother Adil is not the tenant. Therefore Adil is not the person legally in possession of the shop. He is an unauthorised occupant and started business of re-filling gas cylinders. Hence sub-letting is proved by the circumstances, surroundings and facts in this case. The tenant revisionist is therefore not in possession of the shop hence he cannot be held to be in legal possession although he was given the shop on rent at the first instance but he dispossessed himself.
Brother is not a family member of a tenant. Therefore no benefit can be given to the revisionist when he pleads that a family member was sitting in the shop during his absence. There is admission made by him in the earlier suit filed by him against the landlord. There is an appellate court judgment arising out of that suit where in findings of fact have been recorded. Such judgment has not been set aside nor stayed. The findings are therefore admissible in evidence in these proceedings.
The jurisdiction under Section 25 of the Provincial Small Cause Court Act are limited and are not as if it is an appeal. Therefore it has to be seen whether the judgment impugned is in accordance with law. When the findings of the Trial Court -11- are not perverse then no interference is required therein. The findings are based on evidence and are also based on the findings given in the earlier proceedings between the parties which were started by the tenant revisionist and he failed at the appellate stage.
For the aforementioned reasons there is no merit in this Revision under Section 25 of the Provincial Small Cause Court Act.
The Revision is therefore dismissed.
Costs on parties.
Order Date :- 06.01.2012 Pravin