JUDGMENT Prakash Krishna, J.
1. Raising two questions, the present revision under Section 25 of Provincial Small Causes Courts Act, has been filed by the tenant against the judgment and decree datedT. 5.2003 passed by the Additional District-Judge (Court No. 3) Kanpur Nagar, in SCC Suit No. 15 o 1998, under Section 25 of Provincial Small Causes Courts Act. The suit has been decreed for recovery of arrears of rent and ejectment.
2. Sri Lakshmi Chandra Agarwal, was the owner and landlord of Premises No. 31/105 Vishnupuri, Kanpur and the defendant, who is applicant in above revision, was tenant of ground floor of the aforesaid premises. The tenanted accommodation consists of one covered hall including two toilets and urinals having floor area of 3320 Sq. ft. and was let out on a monthly rent of Rs. 20,000. The relationship of landlord and tenant between the parties is not in dispute.
3. The defendant (hereinafter referred to as tenant) defaulted in payment of rent and by notice dated 11.7.1997 tenancy was terminated on the expiry of 30 days from the date of service and the tenant was asked to clear all arrears of rent due since August 1996. The notice was served on the tenant on 14.7.1997. The damages at the rate of Rs. 1,000 per day was claimed. The suit was filed for recovery of Rs. 2,48,387.10 paise inclusive of arrears of rent and damages.
4. It was contested by the defendant-tenant on the pleas inter alia, that the monthly rent is Rs. 2,000 (Two thousand) and the provisions of U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (here in after referred to as U.P. Act No. 13 of 1972) are applicable.
5. The Judge Small Causes Court has decreed the suit in toto by its judgment dated 7.5.2003 which is under challenge in the present revision.
6. This Court by order dated 23.5.2003, without admitting the revision granted interim relief, staying ejectment of the tenant on the condition that tenant will deposit a sum of Rs. 30,000 as rent damages and will also clear the amount due by 30.6.2003 and continues to deposit the rent by 10th of every succeeding months.
7. Heard Sri Pramod Kumar Jain, learned Counsel for the applicant, and Sri Narendra Mohan for the landlord-opposite party. Sri Jain in support of the revision made following two submissions :
8. Firstly, the landlord Lakshmi Chandra Agarwal died soon after institution of the suit. On his death his widow and two sons were substituted, on the basis of photostat copy of registered Will was filed along with substitution application. Elaborating the argument, he contends that the Will was not proved as its original was not filed and the Court below was not correct in decreeing the suit as the Will in question is not probated. He submitted that it was necessary for the heirs of the deceased- landlord to obtain succession certificate to claim arrears of rent which Is in the nature of 'debt'.
9. Secondly, on merit, with regard to rate of rent under issue No. 2 it was submitted that the Court below committed an illegality in holding that the rate of rent is Rs. 20,000 per month and not Rs. 2,000 as was pleaded by the tenant.
10. Besides the aforesaid two points, the judgment of the court below was not challenged on any other point.
11. Sri Lakshmi Chandra Agrawal, expired on 11.9.1998 and a substitution application to substitute the heirs was filed on behalf of present opposite party on 10.11.1998. Objections were invited by the Court on the aforesaid substitution applicant. The tenant put in appearance In the proceeding on 4.12.1998, but failed to contest the substitution proceeding in spite of time granted on 11.12.1998. The substitution application was ultimately allowed on 27.2.1999, there being no objection on behalf of the tenant. Another Misc., application to recall the aforesaid order, being Paper No. 20C, was filed which was rejected on 17.5.1999. These undisputed facts do disclose that proper opportunity of hearing was afforded to the tenant before allowing the substitution application, and no illegality or Irregularity was committed in allowing the substitution application.
12. A plea was sought to be raised that the present suit is not maintainable in view of Section 213 of the Succession Act and the Will is not proved as its photocopy, which is not admissible In evidence, was filed In the suit.
13. Reliance has been placed on the following cases for the proposition that photocopy of a Will is short of legal requirement to prove Will.
(1) Smt. Manorma Srivastava v. Smt. Saroj Srivastava AIR 1989 All 70, wherein it has been held by this Court in a Testamentary Suit, a letter by Plaintiff to Nazul department becomes public document and its photocopy is not admissible to prove the document.
(2) Jagdish Kumar Talwar v. IInd Additional District Judge, 1994 (1) ARC 557, wherein It has been held that photostat copy of the Will Is not admissible and cannot be proved.
(3) Ajai Bansal v. Prashant Gupta, 1996 (1) ARC 10, is also to the same effect that photostat copy of the Will is not admissible In evidence if original Will is not filed.
(4) Smt. Jaswant Kaur v. IInd A.D.J. and Ors. 1992 (2) ARC 65. In this case the plaintiff claimed himself to be the landlord on the basis of Will. The Will was not proved In accordance with law. This Court held that the suit is liable to be dismissed.
These cases have absolutely no application to the facts of the present case for the simple reason that it Is not in dispute that Lakshmi Chandra Agarwal was the original landlord and after his death his widow and two sons who have been substituted In his place are also otherwise natural heir and representative in their own rights succeeded to the estate of deceased, even if the Will in question Is ignored. Significantly, the suit was instituted by Lakshmi Chandra Agarwal during his life time. After his death his estate was represented through his widow and two sons in the suit for the purposes of further proceedings In the suit. Even if the plea of Will is ignored and it is taken that Lakshmi Chandra Agarwal left daughters also it would not in any way make the suit defective, inasmuch as the estate of Lakshmi Chandra Agarwal is duly represented by his widow and two sons. The observation made by this Court in the case of Jaswant Kaur was made in a different context and should be read in the context of the fact of that case. It nowhere lays down that If a person is otherwise entitled to claim a right, he must necessarily establish the Will of the deceased in his favour.
(5) Ram Bilas Mishra v. Ram Sagar Mishra and Ors. 1998 (1) ARC 88. In this case the Court has laid down as follows :
It was a suit for eviction after terminating the licence. The title of the plaintiff was set up on the basis of registered Will. In such a suit there was no necessity for obtaining probate on the strength of a Will under Indian Succession Act. The Will therefore, could be acted upon without obtaining probate under Indian Succession Act. If due attestation and execution of the Will Is proved there is no necessity for obtaining the probate and the suit cannot be dismissed on this ground.
The aforesaid observation on which reliance has been placed by the learned Counsel for the applicant run counter to his submission and it rather supports the contention of the landlord. So far as continuance of the suit Is concerned it has been held that there is no necessity for obtaining probate. The emphasis of the learned Counsel is that "if due attestation of the Will is proved". The said phrase has no application so far as the substitution of the deceased Laxmi Chandra Agarwal is concerned.
14. The cases relied upon-, as aforesaid, by the learned Counsel for the applicant, has no application to the facts that the present case, inasmuch as the estate of the deceased Lakshmi Chandra Agarwal Is duly represented by his widow and sons.
Alternatively, the above contention of the applicant is also liable to be rejected inasmuch as it is established beyond doubt that co-landlord is entitled to sue for ejectment and recovery of arrears of rent and damages against the tenant. (See Indian Umbrella Manufacturing Co. v. B. Agarwal ).
15. The other cases relied upon by the learned Counsel for the applicant are Rameshwar Lal Gaur v. Jagdish Prasad, 1967 ALJ 123 ; Ghasitey Ram v. Pt. Parmeshwari Dayal, 1969 ALJ 950 and Bhaiyaji v. Jageshwar Dayal , have no application to the facts of the present case and it is not necessary to discuss them in detail as they are tangent to the issue raised in the present case. Interestingly, in the case of Bhaiyaji v. Jageshwar Dayal (supra) it has been held that a combined reading of the provision of Sections 12, 13 and 57 of the Succession Act would show that where the parties are Hindu and the property in suit are not in Bengal, Mumbai and Madras the Probate of Will, will not be required to obtain by Hindu in respect of a Will made regarding immovable properties.
16. The next point urged was with regard to rate of rent. The trial court under Issue No. 2 has examined the question of rate of rent with reference to the evidence on record. It has taken into account that the tenant has been paying rent @ Rs. 20,000 per month and Paper Nos. 38-Kha, 39-Kha, 40-Kha, 41-Kha, 42-Kha, 43-Kha and 44-Kha (T.D.S. = Tax Deducted at Source Certificates) are the certified copies issued by the Income tax department to show that the defendant- tenant deducted tax at source. These documents show that the defendant tenant deducted tax at source of Rs. 20,000 per month as rent paid by it to the plaintiff-landlord. The court below has also taken into account that the tax per month was deducted @ Rs. 3,000. The trial court has examined this question very meticulously and in depth and found that from overwhelming documentary evidence on record which includes the documents executed by the defendant-tenant, such as tax deduction certificates and cheques and letters show beyond doubt that the rate of rent was Rs, 20,000 per month. The rent used to be paid by cheques after deducting income-tax at source as per statement of Subhash Chandra Agarwal, P.W. 1. The only reply given to overcome the whelming documentary evidence is that admission contained in the Income tax return are made for specific purposes and cannot be treated as admission. The said reply is only for the sake of reply. Had rate of rent being Rs. 2,000 per month as alleged by the tenant-applicant, there would have been no question of deducting Income tax at source @ Rs. 3,000 per month. The trial court has also noticed that in the cross-examination the defendant-tenant has admitted his signatures on these tax on deduction certificates. He has also admitted that rent was being paid through Account payee cheques. On the face of voluminous documentary evidence, the irresistible conclusion is that the defendant-tenant has come out with a false case that rate of rent was Rs. 2,000 per month on the face of it. He has raised the dispute of rate of rent for the sake of dispute without there being any substance therein. Sri Pramod Kumar Jain, learned Counsel for the applicant admitted that he cannot make any submission regarding the finding recorded under Issue No. 2 except that admission made in the Income tax proceeding is no admission in the eyes of law. The finding recorded by the trial court thus, on issue No. 2 is based on clinching evidence and it is crystal clear that the tenant has come out with a palpably false and incorrect defence. The finding under issue No. 2 is on terraferma needs no interference and the same is hereby confirmed.
17. Before parting with the case, it may be noted here that this case was heard by another learned single Judge of this Court, who released the case and it was assigned thereafter by the Hon'ble senior Judge to brother Justice V. C, Mishra, who heard the matter on number of occasions such as on 30.9.2005, 10.11.2005 and 22.11.2005 etc. On 21.2.2006 Sri Pramod Kumar Jain learned Counsel appearing for the tenant submitted that his client took away papers on 14.2.2006 and another counsel was engaged. The newly engaged counsel refused to proceed with the argument and submitted that he was not ready with the case and needs time for preparation. Brother Justice V. C. Mishra, released the case on 21.2.2006 by passing following orders :
Sri P. K. Jain, Sri A. C. Pandey, and Sri Dhananjay Awasthi advocates are counsel for the revisionist, and Sri Narendra Mohan learned Counsel for the respondents are present in the court. The case is shown today in the computer cause list as date fixed as well as in the main cause list Sri P. K. Jain, learned Counsel for the petitioner has submitted that his client took away the papers on 14.2.2006 and has engaged Sri Dhananjay Awasthi. On being questioned as to who would argue the case Sri Awasthi said that he would argue the case and on being asked to proceed with the arguments he submitted that he was not ready with the case, and for quality arguments it was necessary that the case be passed over and that Sri P. K. Jain still continues as counsel for revisionist. Since Sri P. K. Jain is present, no valid ground exists for passing over the case at the stage of conclusion of the arguments. On asking the learned Counsel to proceed with argument, Sri Awasthi commented that it was very unfair not to pass over the case for today. It is unethical and against legal propriety that firstly Sri Awasthi has been inducted at the fag end of the lengthy arguments advanced by Sri Jain on earlier dates with obvious reasons and secondly to pass comments on the Court.
Under present circumstances, it would be better in the interest of justice that the case be not heard by me any further. Let the papers of this case be laid before His Lordship Hon'ble the Chief Justice for nomination of a Bench of which I am not a member.
18. Thereafter the case was listed before me on 24.4.2006. In the meantime S.L.P. (Civil) No. 6081 of 2006 was filed before the Apex Court by disgusted landlord. The S.L.P. has been disposed of by the Apex Court by passing the following order:
We have heard counsel for the petitioner.
It is really unfortunate that such incidents take place in the High Court. However, we wish to say no further on the conduct of the concerned counsel appearing in the matter. Having regard to the facts of the case and that the landlady is an old person and about 73 years we request the High Court to hear the civil revision as early as possible preferably within two months from the date on which a copy of this order is either communicated to the High Court or produced before the Registrar General of the High Court by the petitioner.
19. The Special Leave Petition is dismissed.
20. When the case was listed before me on 24.4.2006 copy of order of Apex Court was made available by the learned Counsel for the landlady. Again request for adjournment on behalf of tenant-applicant was made by Sri Pramod Kumar Jain, learned Counsel for the tenant. The short adjournment In the interest of justice was granted and the matter was finally heard on 1.5.2006. It may be placed on record that newly engaged counsel Sri Dhananjay Awasthi, advocate whose subsequent engagement was Instrumental for getting the case released after such a long hearing by Justice V. C. Mishra, did not turn up and the case was argued by Sri Pramod Kumar Jain. The object of the engagement of new counsel at the fag end of the case, is writ-large and this Court does not wish to add anything further. The tenant-applicant succeeded In getting the case released by taking the recourse of unhealthy steps. It is distressing to note that sometime unscrupulous litigant by manoeuvring the things succeed in getting hearing of the case postponed. Such a practice should be curbed at its very thresh-hold and cannot be approved even for a moment.
21. In view of the above discussion there is no force in the revision. The revision Is hereby dismissed with special cost of Rs. 20,000 for abusing the process of Court.
22. At the end learned Counsel for the applicant prayed for some time for vacating the premises in question on the ground that the applicant-tenant is a company. The applicant tenant is granted more than three months time, i.e., up to 30.8.2006. The tenant will vacate the premises on or before 30.8.2006 subject to the fulfilment of following conditions cumulatively :
(1) An undertaking on affidavit is furnished within ten days from today before the court below that it shall vacate the premises within aforesaid period and hand over peaceful vacant possession to the landlord's opposite parties without inducting anyone in the premises.
(2) It clears the decretal amount, if not already deposited or paid within period of one month from today and also damages @ Rs. 30,000 per month as fixed by this Court in its interim order dated 23.11.2003 for the period ending 30.4.2006.
(3) In addition to the above deposits a sum of Rs. 1,60,000 within one month towards damages as consideration of grant of time, within period of one month from today.
It is made clear that in case of default of any of the conditions stipulated above, the time granted by this order shall stand discharged.