Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5552 of 2018 Petitioner :- Sartaz Mohammad Respondent :- Smt. Suman And 2 Others Counsel for Petitioner :- Mahesh Narain Singh,M.N. Singh Counsel for Respondent :- Anil Kumar Pandey,Arvind Srivastava
Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri M.N.Singh, learned counsel for the petitioner and Sri Arvind Srivastava and Sri Anil Kumar Pandey who appears for the plaintiffs- respondents.
Petitioner is assailing the impugned order dated 9.7.2018 passed by the Additional District & Sessions Judge, Court No. 4, Kasganj and the order dated 22.11.2016 passed by the Judge Small Cause Court/Civil Judge (Junior Division), Kasganj.
Sri M.N.Singh, in support of his submissions, precisely submits that the entire proceedings for eviction, arrears of rent, damages and for possession, as were instituted before the Judge Small Cause Court/Civil Judge (J.D.), Kasganj at the instance of the plaintiff/respondent, were not maintainable in view of the provisions contained under Section 15(2) read with Schedule 2(4) of the Provincial Small Cause Court Act, 1887. The relief had been asked for ejectment as well as possession with respect to the premise in question as such, the relief prayed by the plaintiff-respondent could not have been accorded/granted by the Judge Small Cause Court inasmuch as the same was wholly beyond the jurisdiction of the said Court. In fact, the relief of possession could only be granted under the Code of Civil Procedure before a regular civil court. It has also been submitted that at no point of time, any document was executed inter se between the parties evidencing the terms and conditions of the tenancy/lease and as such, the lease/tenancy in question being referable to Section 108(1) of Transfer of Property Act, was for indefinite/uncertain duration and the tenant/petitioner cannot be evicted at the instance of plaintiff/landlord, more so when no default in payment of rent at any point of time, is being committed by the tenant/petitioner. It has also been submitted that at no point of time, any notice whatsoever terminating the tenancy, has ever been served upon the defendant/petitioner and as such by no stretch of imagination, the proceedings in question could have been maintained without terminating the tenancy and as such the orders impugned are per se bad, unsustainable and are liable to be set aside.
Per contra, Sri Arvind Srivastava states that the entire grounds and pleadings which have been set up by means of the present petition, is already answered by this Court in S.C.C. Revision No. -
438 of 2015 (Sanjay Kumar Vs. Shreyans Kumar Jain and Ors.) vide judgment and order dated 14.1.2016 wherein the revisional court has declined to interfere in the matter and the same view has been reiterated by this Court in MATTERS UNDER ARTICLE 227 No. - 5993 of 2017 (Manoj Kumar @ Chimma Vs. Sri Guru Vachan Singh) vide judgment and order dated 5.10.2017 and as such, it is contended, once the grounds so taken before this Court, is already answered in the aforementioned matters then there is no reason or occasion to take a contrary view by this Court.
Once, an objection is raised by Sri Arvind Srivastava, learned counsel for the contesting respondents, the Court has proceeded to examine the record in question and perused both the orders so cited by Sri Arvind Srivastava and finds that the grounds taken by the petitioner, were already answered by this Court in the aforementioned matters and the Court is not of the opinion to take a different view in the present matter. Consequently, present writ petition fails and is accordingly dismissed in same terms as in Sanjay Kumar (supra) and Manoj Kumar (supra).
However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 11.1.2019.
(2) The tenant-petitioner 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 tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioner shall pay damages @ Rs. 400/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 11.1.2019 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 tenant-petitioner 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 tenant-petitioner 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 the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
Order Date :- 12.9.2018 A.K.Srivastava