Heard learned counsel for the tenant-revisionist and Sri S.C. Tiwari, learned counsel appearing for the landlord-respondent.
Counter affidavit filed today is taken on record.
Present revision has been filed challenging the judgment/decree dated 17.10.2019 passed by Small Causes Judge / Additional District Judge, Court No. 9, Kanpur Nagar in SCC Suit No. 172 of 2011 (Smt. Ambika Devi and others vs. Sri Om Prakash).
According to the plaint allegation the premises in question measuring 17 x 10 ft. was let out to the tenant-revisionist herein pursuant to the agreement dated 28.4.2009 @ Rs. 3200/- per month. It is alleged that the default was committed by the tenant-revisionist and therefore, a notice dated 19.5.2011 was given to the tenant but the same was returned with the endorsement of refusal.
The trial court framed five issues; (1) regarding landlord and tenant relationship, (2) regarding applicability of Act 13 of 1972, (3) regarding validity of notice, (4) regarding applicability of Order 15 Rule 5 CPC and (5) regarding relief, if any.
The landlord and tenant relationship was admitted between the parties and as such issue no. 1 was decided in affirmative. On issue no. 2 it was found that rent agreement dated 28.4.2009 paper no. 46 Ga/1 and 46 Ga/2, which was produced in original and original counterfoil of rent receipt dated 30.8.2009 paper no. 47Ga/1 was proved by PW-1 Raj Kumar whereby it was proved that the premises was rented out @ Rs. 3200/- and as such it was further found that although handwriting expert report was produced as paper no. 91Ga/1 and 91/Ga/17, however, witness was not produced for cross-examination, therefore, such evidence was not acceptable. In such view of the matter, it was found that UP Act 13 of 1972 is not applicable in the present case. On issue no. 3 regarding validity of notice it was found that the notice dated 19.5.2011 was sent to the tenant, which was returned with the endorsement of refusal. The tenant-revisionist herein himself in his cross-examination admitted that envelop 9Ga was tried to be handed over to him by the Postman but since he was not aware of the contents of the envelop he had not received the same, therefore, it is admitted that the registered post was received by him but he refused to accept the same and therefore, returned with the endorsement of refusal. In such view of the matter, it was held that the notice was validly given to the tenant-revisionist. Insofar as benefit of Order 15 Rule 5 CPC is concerned, it was found that the case has proceeded ex-parte and subsequently he moved an application for condoning the delay in making deposit but the same was rejected vide order dated 15.1.2011. It was further found that amount lesser than the amount due was deposited, therefore, the tenant-revisionist was not entitled for benefit of Order 15 Rule 5 CPC. The relief was accordingly granted in favour of the applicant that since the Act is not applicable and the notice was duly served directing for eviction and also directing for payment of arrears of rent.
Learned counsel for the revisionist submitted that the rent was Rs. 1,000/- per month with electricity charges of Rs. 300/- per month. It is submitted that the trial court has incorrectly held that the rent was @ Rs. 3200/- in view of the agreement dated 28.4.2009. He submits that the landlord has failed to prove the alleged agreement dated 28.4.2009. To highlight this he placed cross-examination of PW-1 Raj Kumar Mishra and submitted that the landlord in his cross-examination has stated that he is not aware, who had written the agreement and who were the witnesses thereof, which was executed in 2009. Submission, therefore, is that the agreement was not proved by the landlord. It is further submitted that the rent receipt was never issued to the tenant-revisionist. Submission, therefore, is that the Rent Control Act applies; agreement could not be proved; notice was not served; and there was no default in payment of rent or in deposit as the enhanced rent could not be proved by the landlord.
Per contra, learned counsel for the landlord-opposite party has supported the impugned order.
I have considered the submissions and have perused the record.
It is admitted that handwriting expert was not produced by tenant-revisionist before the court below for cross-examination to prove his expert report submitted by him. As such, the court below has rightly rejected his affidavit. I have also gone through the affidavit annexed at page no. 68 of the paper book. Prima facie, on comparison this Court finds that the signatures on the agreement are of the tenant-revisionist himself if compared with the signatures made on pages of agreement in original before this Court at page 69 and 70. Insofar as service of notice is concerned, it is admitted by the tenant-revisionist himself that the envelop was handed over to him by the Postman as reflected from internal page 8 of the judgment but he has refused to accept the same.
Once the Act is not applicable and notice was duly served, no other ground is required to be seen.
In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.
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 tenant-revisionist shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.8.2021;
(2) The tenant-revisionist shall file the undertaking before the Court below to the said effect within two weeks.
(3) The tenant-revisionist shall pay entire decretal amount within a period of two months from the date of receipt of copy of this order.
(4) The tenant-revisionist shall pay damages @ Rs. 5,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2021 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-revisionist 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-revisionist 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 revisionist, he shall also be liable for contempt.
Learned counsel for the landlord-opposite party undertakes to inform his client that six months' time has been granted by this Court, therefore, the execution proceedings shall remain in abeyance for that period provided the conditions that are imposed by this Court are fullfilled by the tenant-revisionist.
There shall be no order as to costs.
Order Date :- 17.2.2021 Lalit Shukla