(C.M. Application No.63670 of 2020)
1. The applicant had filed a Small Causes Court Revision No.33 of 2020, which was taken up by this Court and disposed of by a detailed order on 19.10.2020. The order passed by this Court on 19.10.2020 is being quoted herein below:-
"Heard learned counsel for the parties.
This revision has been filed challenging the order dated 25.8.2020 passed by the Special Judge, P.C. Act/Additional District Judge, Lucknow in SCC Suit no.59/2016.
It has been submitted by Sri Devendra Mohan Shukla, who appears for the revisionist that the learned court below has failed to appreciate the statement of landlord and also of witness that make out that the revisionist had given security money of Rs.9000/- and that petitioner had stopped giving rent only when certain repairs that were needed badly over the rented property carried out by him and the landlord told him to deduct the amount of repairs from the rent that was admitted between the parties.
It is the case of revisionist that the rent of the property in question which is situated on first floor of a building situated on the Nishatganj main road for four rooms is Rs.3000/- per month and for the same building Nagar Nigam assessment carried out showed that annual rental value is rupees two lacs nine thousand and odd.
It has been submitted by the counsel for the revisionist that the landlord had admitted before the learned trial court that he was getting rent of Rs.18000/- per month for the second floor on which a Coaching institute was being run on 1800 square feet therefore, the petitioner who had rented only four small rooms that is on first floor i.e. around 608 square feet, was rightly taken on rent of Rs.3000/- per month.
Learned counsel for the caveator Sri Danish Rasheed has pointed out from statement of the revisionist that his electricity bill was around Rs.6000/- to Rs.7000/- per month. He has also pointed out from the statement made before the trial court that the petitioner had rented three large rooms and one small room admeasuring 20x12 feet, 20x10 feet, 12x10 feet and 8x6 feet. He has also pointed out that initially the revisionist had given surety amount and also rent for which Receipt nos.831 and 832 were issued by the landlord in 2015. Later on a cheque was issued by the revisionist of Rs.8000/- as monthly rent for December 2015, which cheque was dishonoured and the landlord has filed an application under Section 138 of the Negotiable Instrument Act which is pending before the appropriate court. Learned trial court has considered all relevant facts and also documentary evidence and has come to the conclusion that a four room tenanted accommodation on first floor of a building situated in the main Nishatganj market could not possibly be Rs.3000/- per month only as alleged by the tenant.
This Court has carefully perused the order impugned. It does not find any infirmity in the conclusion drawn by the trial court.
The revision is dismissed.
The revisionist shall handover vacant and peaceful possession of the property in question to the landlord within a period of six weeks from today and also comply with the directions issued by the learned trial court for payment of arrears of rent and damages as given in the order impugned."
2. After the said order was passed, the aforesaid recall/ review application was filed by the Revisionist with the pleading in the affidavit that because of technical glitch, the counsel for the revisionist could not complete his argument on 19.10.2020, and therefore, prayer was made to recall the order dated 19.10.2020 and hear the matter afresh.
3. The aforesaid recall/ review application was taken up on 10.11.2020 by this Court and it was found that the order dated 19.10.2020 had been passed on merits and there was no provision under the High Court Rules for recall of order passed on merits. The application was treated as a review application and notices were issued to the respondent.
4. I have heard learned counsel for the revisionist and the review applicant Sri Devendra Mohan Shukla and Sri Danish Rasheed, learned counsel for the respondent.
5. Learned counsel for the review applicant assails the order passed by the Additional District Judge dated 25.08.2020 in S.C.C. Suit No.59 of 2016: Raghav Ram Gupta Vs. Shiv Ram Tiwari.
6. The facts relevant for decision of the case are given in brief as follows:
7. The respondent had filed a S.C.C. Suit No.59 of 2016 for arrears of rent and eviction of the revisionist from house no.498/207/2/Lakshmi Bhawan between Nishatganj Lucknow stating therein that the building in question is a commercial building and facing Indira Bridge/ Fly over on one side and Nishatganj railway line on the other side situated in the main market and that the revisionist had taken four rooms on the first floor of the said building for commercial purpose at Rs.8,000/- per month. At the time of beginning of tenancy in November, 2015, the revisionist had paid Rs.8,000/- in cash for which receipt no.832 was issued by the landlord and also paid an amount of Rs.9,000/- in cash for which a receipt no.831 was issued to the revisionist. Thereafter, the revisionist established his business/ Customer Care Center for Bank of Baroda on the tenanted premises but failed to pay rent. On repeated reminders the revisionist paid Rs.8,000/- through cheque as rent for the month of December, 2015, which cheque was dishonored and the landlord had to initiate proceedings under Section 138 of the Negotiable Instrumental Act against the revisionist. Since no rent was paid for several months, a notice was sent by the landlord to the revisionist through Advocate on 11.08.2016 asking for arrears of rent for nine months i.e. from December, 2015 to August, 2016 and also terminating his tenancy. Copy of the postal receipt of said legal notice issued through speed post along with tracking report showing its delivery on the address mentioned was also produced as documentary evidence. It was contended by the landlord that even after receipt of the said notice, the revisionist failed to pay up the rent and also did not vacate the premises hence need arose to file the suit for payment of arrears of land and for eviction of tenant as aforesaid. The revisionist filed a written statement wherein he denied the rate of rent as being fixed at Rs.8,000/- per month. It was alleged that the revisionist had taken four rooms on the first floor of the building in question on rent for commercial purposes for running customer care center of Bank of Baroda at the rate of Rs.3,000/- per month. The tenant had also agreed to pay the electricity charges of Rs.3,000/- per month and an additional amount of Rs.2,000/- per month on the landlord facilitating the construction of one cabin on the ground floor near the stair case to enable the revisionist to deal with the need of old and disabled customers of the Bank.
8. It was further alleged that Rs.9,000/- was paid not as security money but as an advance for getting construction done as desired by the tenant on the ground floor and it was agreed upon by the parties that the said amount may be adjusted in rent to be later paid for the space by the revisionist. It was alleged that since no construction was done as promised by the landlord, nor any furnishing/ repair work done on the first floor of the tenanted premises, the revisionist carried out repair/ furnishing work on his own. The photocopies of certain bills of items purchased for such repair and furnishing work were filed as documentary evidence. It was further alleged that electricity as promised was not provided by the landlord and the revisionist managed to get an independent connection from the distribution company and he paid electricity bills on his own. It was further alleged that the revisionist had deposited Rs.89,600/- as arrears of rent and interest and cost in the court in terms of Order XV Rule 5 of C.P.C. on the date of first hearing.
9. In his replication, the landlord seriously disputed the contention made in the written statement by the revisionist and referred to two receipts issued by him, namely, receipt no.831 and 832 on 15.11.2015 only for Rs.8,000/- deposited as rent for the month of November, 2015 and Rs.9,000/- deposited as security money. It was further reiterated that after payment of Rs.17,000/- as aforesaid in cash, no other payment was done by the revisionist. The contention of the revisionist that it was agreed upon to build a cabin on the ground floor near the stair case was also denied on the ground that there was a toilet near the stair case and a common passage which was to be used by other tenants of the building also, hence there was no question of any promise having been made to construct a cabin on the common passage for the revisionist as alleged. It was also stated that the amount deposited by the revisionist of Rs.89,600/- on 21.12.2017 cannot be treated to be sufficient compliance of the Order XV Rule 5 of the C.P.C. It was reiterated that the building in question was commercial premises and the revisionist had taken on rent four large rooms on the first floor and the allegation that the said four rooms had been let out by the landlord only for Rs.3,000/- per month as rent was beyond imagination and liable to be rejected. No reasonable person could have let out the four large rooms at Rs.3,000/- per month in a building situated next to Indira Bridge, Nishatganj main market, as alleged by the tenant. Photographs of the building in question were also filed.
10. Oral evidence was led before the learned trial court in which the postal receipts and tracking report for the Legal Notice sent by the landlord's Advocate and also the rent receipts No.831 and 832 were proved by the landlord as also the original receipt book and the legal notice sent by the landlord to the tenant. Other documentary evidence like application under Section 138 of the Negotiable Instruments Act and a complaint made to the S.D.O. Mahanagar Division, Power Corporation, were also filed. The landlord was examined as also the tenant. The tenant also produced one of his friends as witness to the alleged oral agreement between the parties at the time of taking premises in question on rent and certain photocopies of receipts for purchase of material for repair undertaken by the tenant on the premises in question.
11. The learned trial court framed five issues. Issue no.1 was related to whether the rent of the building in question had been agreed upon as Rs.8,000/- per month. Issue no.2 was related to whether there was any default in payment of rent. Issue no.3 was related to whether on the basis of such default in payment of rent, the plaintiff was entitled to the reliefs sought by him from the Court, of eviction of tenant and decree for payment of arrears of rent; and issue no.5 was related to whether legal notice demanding arrears of rent and terminating tenancy was served upon the revisionist.
12. The trial court after consideration of oral and documentary evidence decided all issues in favour of the plaintiff and directed that the revisionist should pay a sum of Rs.8,000/- as arrears of rent for each month with effect from December, 2015 up to August, 2016 and with effect from September, 2016 onwards till the date of vacation of the tenanted premises, damages to the tune of Rs.8,000/- per month. The tenanted premises were to be vacated within two months from the date of the judgment and order dated 25.08.2020.
13. Initially when the matter was argued by learned counsel for the revisionist, learned counsel for the revisionist had laid emphasis on the fact that a coaching institute was being run on the second floor of the same building on 1800 sq. ft. area for which the rate of rent of Rs.18,000/- per month had been admitted by the landlord and therefore, the revisionist who had rented only four small rooms of an area of 608 sq. ft. was right in his submission that the rent was agreed upon is Rs.3,000/- per month in November, 2015. The reason for non-payment of rent was also emphasized that there was an oral agreement between the landlord and tenant for carrying out certain repairs and construction which was not done, as a result whereof the revisionist had to carry out the said repairs and he withheld the rent to claim reimbursement.
14. When the matter was argued afresh on recall/ review application, learned counsel for the revisionist has raised three grounds of challenge. Firstly, that the dispute was with regard to the rate of rent as agreed upon by the landlord and the tenant and the said issue was not decided by the trial court on the basis of documentary and oral evidence produced before it, but was decided on the basis of conjecture and surmises. It was argued that since there was no direct evidence of any rent being agreed upon by the parties, it was the duty of the learned trial court to go through all documentary and oral evidence and give a finding of fact based thereupon. Secondly, it was argued that while deciding the issue of rate of rent, the trial court proceeded to assess the fair rate of rent of the premises in question instead of assessing the rent as agreed upon by the landlord and the tenant, thus far exceeding its jurisdiction and thirdly, it was argued that notice under Section 126 of the Transfer of Property Act was sent by the landlord deliberately on an incorrect address which notice having not been served, the filing of the said SCC Suit was itself vitiated and the Suit was liable to be dismissed on this ground alone.
15. The learned counsel for the revisionist argued that since the landlord had alleged that rent of Rs.8,000/- per month was agreed upon between the parties for four rooms on the first floor of the building in question which fact was denied by the tenant, it was the duty of the trial court to ask the landlord to prove his case and that the onus to prove otherwise was wrongly shifted upon the tenant by the learned trial court and the learned trial court resorted to conjucture and surmises in determining whether the landlord had truthfully revealed the correct rate of rent or that the tenant was truthful in his assertion.
16. The learned counsel for the revisionist has placed reliance upon a judgment of a Coordinate Bench of this Court rendered in S.C.C. Revision No.364 of 2014 on 18.01.2017, namely, Anil Kumar Verma Vs Smt. Manju Gupta, to say that when there was no documentary evidence in the form of rent agreement or a rent note or a rent receipt, the learned trial court was required to assess the oral evidence and to correctly appreciate the same and then give its finding regarding rate of rent. Learned counsel for the revisionist has placed reliance upon the observations made by the Coordinate Bench as follows:-
"No doubt as to what was the agreed rate of rent for the premises in question is a question of fact but a finding on a question of fact must be returned by appreciating the evidence that has been led by the parties and not by simply narrating what evidence has been led. A finding returned after consideration of all relevant evidence on question of fact is not ordinarily to be interfered with by a revisional court unless the same is perverse or is based on taking inadmissible evidence into consideration or is based on misreading of evidence. But for there to be a consideration of relevant evidence, the evidence led must be appreciated by application of a judicial mind. When both sides in a suit or proceeding lead their evidence, the court is required to appreciate the evidence and, thereafter, to draw its conclusion on the issue."
17. The learned counsel for the revisionist has led this Court through the finding recorded regarding rate of rent by the learned trial court and says that it is based only on the fact that building in question was situated in Nishatganj main market adjacent to Indira Bridge, Faizbad Road, and that four large rooms on the first floor of the said building had been rented out by the landlord and it was hard to believe that any reasonable man on the basis of the location of the building and the area of the tenanted premises, would have agreed to meager rent of Rs.3,000/- per month only.
18. The learned counsel for the revisionist has also read out the findings recorded by the learned trial court with regard to the service of legal notice under Section 106 of the Transfer of Property Act by learned trial court and has referred to a judgment rendered by Coordinate Bench in Sagar Vs. Vth Additional District Judge, reported in 1986 4 LCD 304. It was argued that when the defendant has categorically stated that the address noted on the notice in question was incorrect and that the notice was not received by the defendant, the onus lay upon the plaintiff to prove that the notice was actually served. It was observed that there may be a case where notice was sent through Registered Post to an addressee, the address noted on the letter may also be correct and the addressee may also be at his house but even then the notice may not be tendered to him at all. If the notice was not actually tendered, the addressee may say that notice was not tendered and in order to rebut the said contention, the sender may have to prove such delivery. The court had observed that presumption under Section 114 of the Evidence Act or under Section 27 of the General Clauses Act, may be rebutted by the solitary statement of the defendant provided that it is convincing.
19. Learned counsel for the revisionist has read out the oral statement of the revisionist and of the plaintiff before the learned trial court. It has been submitted that since the defendant had denied service of notice upon him, the onus lay upon landlord to prove that the said notice was served. Learned counsel for the revisionist alleged that the legal notice was sent on the old address of the revisionist and not on his current address i.e. the building in question where besides running a Customer Care Center for Bank of Baroda, the revisionist also resided.
20. Learned counsel for the respondent on the other hand has pointed out that landlord had submitted the original copies of the speed post receipt and the tracking report before the learned trial court which showed delivery of notice and the onus was upon the defendant to prove that such legal notice was never served. Learned counsel for the respondent has also pointed out from the statements made during the examination-in-chief and cross-examination of the landlord and the defendant before the learned trial court that it had not been disputed that the tenant had taken three large rooms and one small room ad-measuring 22x12 feet, 20x10 feet, 12x10 feet and 8x6 feet on rent on a commercial building situated in the main Nishatganj market next to the Indira Bridge, Faizabad Road.
21. Learned counsel for the respondent has also pointed out the finding recorded by the learned trial court that the building in question had a restaurant, a coaching institute and other shops situated in it. It was emphasized that no reasonable person could have let out such a huge commercial space on such meager rent as alleged by the tenant.
22. Having heard the learned counsel for the parties, this Court has carefully perused the judgment and order dated 25.08.2020 challenged in this Revision. It finds that learned trial court while deciding the issue no.1 with regard to whether Rs.8,000/- had been agreed upon as rent by the landlord and the tenant, had considered in detail, the situation of the building, the covered area of the tenanted premises and also the photographs of the building and its situation as produced before the trial court. The rent reciepts were also produced in original. The trial court emphasized also the fact that for the same premises the tenant had taken an independent electricity connection for which he was paying Rs.6,000/- to Rs.7,000/- per month as electricity charges to the distribution company. The learned trial court has observed after referring to the oral statement of the landlord as also the tenant and his witness, that it was quite improbable that the landlord would have agreed to accept merely Rs.3,000/- as electricity charges for the tenanted premises whereas in ordinary course, Rs.6,000/- to Rs.7,000/- was liable to be paid as electricity charges by the tenant. The trial court has given finding of fact on the basis of actual photographs of the building produced before him that there was no space on the ground floor near the stair case and toilet for construction of cabin as alleged to have been promised to the tenant by the landlord and for agreement by the tenant to pay Rs.2,000/- as rent for a cabin to be so constructed.
23. The oral statement of the defendant's witness that he had accompanied the tenant and was witness of the oral agreement between the tenant and the landlord was also rejected on the basis of the statements in cross-examination, as being an afterthought, because in the written statement initially filed by the defendant, there was no reference at all to such defendant's friend having accompanied him at the time of taking of the tenanted premises on rent, and having witnessed the oral agreement.
24. With regard to the issue of service of notice, the learned trial court has referred in detail to paragraph-10 of the plaint wherein the plaintiff stated clearly that legal notice dated 11.08.2016 was sent through speed post and was served upon the defendant. He has found from the written statement of the defendant that although there was a bald denial of receipt of such notice, there was no further pleading in the additional pleas. In the oral statement and in the cross-examination, no doubt the tenant had stated that he was living on a different address and the notice was sent on a different address and was therefore not served, there was no such pleading made in the written statement and hence the trial court rejected the said oral statement as it could not be given any credence, in the absence of any pleading to support such assertion. Mere denial of receipt of notice, when the Post Office tracking report in original was filed by the plaintiff, was rightly not believed by the trial court. Regarding the question of service of notice under Section 106 of the Transfer of Property Act; the said Section requires only that notice to quit has to be sent either by Post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence, or if such tender or delivery is not practicable, affixed to a conspicuous part of the property.
In the case of the revisionist, the plaintiff had filed original documents to show that notice was sent by Speed Post and the tracking receipt was also filed. The judgement cited by the counsel for the revisionist in Sagar vs Vth Additional District Judge (Supra) is clearly distinguishable on facts.
25. This Court has carefully gone through the statement of the revisionist. The relevant extract of which has been filed at page-86 to page 87 of the application for interim relief. It finds that there is no contention raised by the tenant before the learned trial court that notice was not served as it was sent on a wrong address; rather the tenant had stated that the notice was not served upon him because he may have been out of station as he worked as a Recovery Agent also for the Bank of Baroda and had to undertake certain recoveries for the Bank in different towns as well. Moreover, in the plaint also, as has been pointed out by learned counsel for the respondent, the same address of the tenant has been mentioned as was mentioned in the legal notice, and it is improbable that summons were served of the plaint on the defendant on the same address to which he responded by filing a written statement; while at the same time the legal notice dated 11.08.2016 was not served.
26. This Court finds no perversity or infirmity in the findings recorded on all the issues by learned trial court to interfere in this S.C.C. Revision. More so, taking into account the limited jurisdiction exercised by the High Court in S.C.C. Revisions as has been settled by Hon'ble Supreme Court in its various judgments referred to by the learned counsel for the revisionist.
27. The Hon'ble Supreme Court in Ram Murti Devi Vs. Pushpa Devi and others 2017 (15) SCC 230, has relied upon the exposition of Section 25 of the Provincial Small Causes Court given by Hon'ble Chief Justice Beaumont in Bell and Co. Ltd versus Waman Hemraj AIR 1938 Bombay 223; Which is as follows:-
"3.....The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
4. The section does not enumerate the cases in which the court may interfere in Revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed upon the wrong shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the court can interfere. But, in my opinion, the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."
28. The question regarding the scope of a Revision before the High Courts in various Rent Control legislations in different States was considered by a Constitution Bench of Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs Dilbahar Singh 2014 (9) SCC 78; the Supreme Court in the said judgment has referred to several state Acts but has concluded that none of the Acts conferred on Revisional Authority the power as wide as that of the Appeal "despite such statutory revisional power being wider than that provided in section 115 of the C.P.C.", the provision in a revision does not permit the High Court to invoke its revisional jurisdiction under the cloak of an appeal in disguise. The Revisional Court is not entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the Trial court. The decision emphasises that the examination of findings of fact by the High Court is limited to satisfy itself that the decision is "according to law". The High Court has only to satisfy itself as to the legality, regularity, or propriety of the decision or that it is according to law and does not suffer from any error of law. Whether or not a finding of fact recorded by a subordinate court is according to law is required to be seen on the touchstone, whether such finding of fact is based on some legal evidence, or it suffers from any illegality like misreading of the evidence or overlooking and ignoring the material evidence altogether, or suffers from perversity, or any such illegality or such finding has resulted in gross miscarriage of justice.
29. The findings returned by the learned trial court with regard to the agreed rate of Rent or with regard to service of notice upon the defendant, do not suffer from any perversity for this Court to show any interference in revisional jurisdiction.
30. This court had heard the matter at length on earlier occasion as is apparent from the observations made here in above. By way of a review petition, new grounds have been argued which have also been considered by this Court. It does not find any factual or legal infirmity in the order impugned dated 25.08.2020 passed by the Special Judge PC Act/Additional District Judge, Lucknow in SCC Suit No.59/2016 to show interference.
31. The Review/recall application is rejected.
32. The revisionist shall vacate the premises in question and give peaceful possession to the landlord, the respondent herein within a period of one month from today. He shall also deposit the arrears of rent as determined by the learned trial court along with damages in the trial court to be released to the plaintiff on an application being made by him in this regard.
Order Date: 8th Jan, 2021 Rahul [Justice Sangeeta Chandra]