ORDER
1. The petitioner plaintiff had filed a suit seeking a decree for the eviction of the tenant respondents from the premises in dispute and for recovery of arrears of rent and damages for use and occupation pendent-lite and future, which suit was decreed by the Judge Small Cause Court on 3-8-1984. This decree was however, reversed by the revisional court vide its judgment and decree dated 8th November, 1985, whereunder the suit was dismissed. Feeling aggrieved, the plaintiff petitioner has now approached this Court seeking redress praying for the quashing of the revisional order and restoration of the judgment and decree passed by the Judge Small Cause Court.
2. The facts, shorn of details necessary for the disposal of the present writ petition lie in a narrow compass. The plaintiff petitioner had come up with the allegations that the defendant tenant was a defaulter in the payment of rent which had remained unpaid since 19-1-1975. Accordingly a notice as contemplated under S. 20 of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (hereinafter referred to as 'Act) read together with the provisions contained in S. 106 of the Transfer of Property Act was issued on 7-9-1981 terminating the tenancy of the tenant respondent which was duly served on 9-9-1981. It is asserted that the tenant neither paid the amount of arrears of rent nor vacated the premises in dispute, hence the suit. This suit was contested by the tenant respondent denying the assertions of the plaintiff about his being in arrears of rent. The case of the defendant was that the rent due up to 18-8-1981 was paid to the wife of the plaintiff and the rent was due since 19-8-1981 only. It was thus, asserted that on the date of service of the notice dated 9-9-1981, the rent for not less that four months was not in arrears as contemplated under S. 20(2)(a) of the Act and the suit therefore could not proceed and was liable to be dismissed on this ground alone. It was also pleaded that to avoid any dispute the tenant had deposited the amount contemplated under S. 20(4) of the Act in order to get relieved against any liability for eviction on the ground of default in the payment of rent.
3. The trial court after carefully considering the evidence and the materials on the record came to the conclusions that the defendant tenant was not entitled to the benefits available under S.20(4) of the Act inasmuch as he had failed to deposit the requisite amount contemplated thereunder and had not complied with the conditions prescribed therein on the fulfilment of which alone any such benefit could be extended. The Judge Small Cause Court further came to the conclusion that the defendant was a defaulter in the payment of rent and was in arrears of rent for not less than four months as contemplated under S. 20(2)(a) of the Act. The trial court on the appraisal of the evidence on record came to the conclusion that the defendant tenant had infact not paid any amount of rent subsequent to 18-1-1975. Consequently the suit was decreed.
4. The revisional Court endorsed the finding of the trial court on the question relating to the availability of the benefit contemplated under S. 20(4) of the Act and affirmed the decision of the trial court on this question and clearly negatived the claim of tenant respondent in this regard. However, on re-appraisal of evidence, the revisional court reversed the finding of the trial Court holding the defendant tenant to be a defaulter within the meaning of S. 20(2)(a) of the Act. The revisional Court expressed the view that the payment of rent by the tenant to the wife of the landlord was sufficient to discharge the liability which rested upon the defendant tenant In respect of the payment of rent for the accommodation in dispute.
5. The revisional court drew an adverse inference against the plaintiff for not producing his wife as a witness in the case holding that the production of the wife of the plaintiff was very material. Taking into consideration the pleading of the defendant tenant and on the assumption that this material evidence was withheld by the plaintiff without any justifiable reason the finding of the trial court on the question of default was thus, reversed and consequently the decree passed by the trial court was set aside and the suit dismissed.
6. I have heard Sri Ajeet Kumar, learned Counsel for the petitioner and Sri B. Dayal, learned counsel representing the tenant respondent and have carefully perused the record.
7. As observed by the Apex Court in its decision in the case of Madan Mohan v. Krishna Kumar Sood, reported in 1993 (1) JT SC 162 : (1993 AIR SCW 743), whatever protection the Rent Acts give, they do not give blanket protection for 'non payment of rent'. This basic minimum requirement has to be complied with by the tenants. The Rent Acts do not contemplate that if one takes a house on rent he could continue to enjoy the same without payment of the rent. The onus to show payment of rent lies on a tenant. I respectfully fully agree with the view taken by the learned single Judge in the decision of this Court in the case of Mahesh Chandra v. Smt. Angoori Devi, reported in 1989 (1) ARC 540. Further mere oral testimony is not sufficient in this connection. In a case where the tenant comes forward with the allegations that the rent was paid but no receipt was issued with no explanation whatsoever, for not sending the rent by money order, then, in such a situation, the oral testimony of the tenant in regard to the payment of rent claiming discharge of the liability in this regard cannot be deemed to be worth reliance at all.
8. The above principle is clearly attracted in the facts and circumstances of the cue in hand. Moreover, in the present cue the tenant respondent had not taken up any such case about payment of rent to the wife of the landlord in his reply which was given by him to the landlord after the receipt of the notice dated 19-1-1975. In his deposition recorded by the trial court, the tenant had clearly asserted that he had received the notice sent by the plaintiffs and bad given a reply to the same which was proved by him. In this reply, the tenant had never taken up any such case that he had paid the rent to the wife of the plaintiff. The trial court had noticed this fact and after considering various other materials on record had disbelieved the claim of the defendant tenant about the payment of rent as alleged by him.
9. The learned Counsel for the petitioner has urged that in the facts and circumstances of the case, the whole approach of the revisional court stood vitiated as it had proceeded to interfere in the findings recorded by the trial court on the question of default in payment by erroneously placing the burden of proof on the plaintiff which had led to manifestly erroneous conclusions. It has also been asserted that the revisional court had exceeded the jurisdiction vested in it "under S. 25 of the Provincial Small Cause Courts Act while deciding the revision filed by the tenant.
10. In its decision in the case of Ram Narain v. Kanhaiya Lal Vishwakarma reported in 1965 ALJ 989, a Division Bench of this Court had observed while deciding a revision under S. 25 of the Provincial Small Cause Courts Act, that the revisional court has the power to satisfy itself that a decree or order may in any case decided by Court of Small Causes was according to law. The Division Bench however, emphasised that the revisional court is not empowered to look into the evidence of the case and to decide whether finding of fact recorded by the trial court was justified by the evidence on record or not. Further as pointed out by this Court in its decision in the case of Ramesh Chandra Rana v. Shanti Devi, reported in 1992(1) ARC 52, a court while exercising the power under S. 25 of the Small Cause Courts Act has its own limitations. Relying upon an earlier decision of a Division Bench of this Court in cases of Laxmi Kishore v. Har Prasad Shukla repotted in 1981 ARC 545, it was pointed out that the revisional court did not possess the jurisdiction to determine an issue of fact itself by entering into evidence and assessing it.
11. In the circumstances of the present case, therefore, it is impossible to approve of the impugned judgment passed by revisional court and sufficient ground has been made out for the interference therein as it is not only in excess of the jurisdiction contemplated Under S. 25 of the Provincial Small Cause Courts Act but is even otherwise manifestly illegal.
12. In view of my conclusions indicated hereinbefore this writ petition succeeds and allowing the same the impugned order passed by the respondent No. 1 dated 8th November, 1985 is quashed and the order dated 3-8-1984, passed by Judge Small Cause Court, respondent No. 2 is restored.
13. There shall be however, no order as to costs.
14. Petition allowed.