1. This Revision has been filed by the tenant praying for setting aside the judgment and order dated 24.02.2018 passed in SCC Suit No. 79 of 2016: Smt. Rati Chaturvedi Vs. Suraj Narayan Gupta, Director, Moti Mahal Talkies (Chamariha Talkies Private Limited) passed by Additional District Judge/Judge, Small Causes Court, Kanpur Nagar whereby the suit has been decreed for eviction and removal of Electricity Meter and Generator and other items from the property in dispute, and with a direction to pay rent at the rate of Rs.100/- per month w.e.f. 23.10.1998 to the date of the decision to the plaintiff, and to pay the damages @ Rs. 2,500/- per month for continued occupation after the judgment till the delivery of actual possession of the property in dispute.
2. The facts relevant for decision of this Revision have been mentioned in the Stay Application filed along with the Revision. House No. 77/153 situated at Latouche Road, Kanpur Nagar was owned by one Raj Kumar Dhawan. It was taken on rent by Moti Mahal Talkies since before 1950. A part of the said property i.e. one big hall divided into three small rooms was purchased by Smt. Mridula Chaturvedi wife of Manoj Kumar Chaturvedi, Smt. Shashi Chaturvedi wife of Rajiv Kumar Chaturvedi and Smt. Rati Chaturvedi wife of Sanjeev Kumar Chaturvedi through registered sale deed dated 23.10.1998 from the erstwhile owner Shri Raj Kumar Dhawan. The tenant revisionist was using one room in the said big hall as Generator Room where his electricity meter was also installed for the Cinema-hall. Whereas, the rest of two rooms were being used as shops in the name of Swadeshi Mill Store.
3. One Akhilesh Kumar filed an application for allotment before the Rent Control and Eviction Officer under Section 12 read with Section 15 of the U.P. Act No. 13 of 1972. Smt. Rati Chaturvedi also filed an application for declaration of vacancy before the Rent Control and Eviction Officer.
4. Both these applications were taken up together by City Magistrate, Kanpur Nagar as Prescribed Authority. After local inspection and report being placed on record, a preliminary objection was raised with regard to the maintainability of the application under Sections - 12 and 15 of the U.P. Act No. 13 of 1972 by Shri Suraj Narayan Gupta, Director of Moti Mahal Talkies saying that the Generator and Electricity meter of cinema-hall was housed in the property in dispute and the property being appurtenant to the cinema-hall, it should be treated as a part of the cinema-hall and thus exempted from the provisions of the Act under Section 2 (2).
5. The Rent Control and Eviction Officer found that the room in question admeasuring 15' x 12' was under occupation of Moti Mahal Talkies and was being used as its Generator Room. He, therefore, declared the said application under Sections 12 and 15 to be not maintainable as property of a Cinema-hall was exempted from the operation of the Rent Control Act.
6. Smt. Rati Chaturvedi as well as Shri Akhilesh Kumar both filed the Rent Revisions separately against the order dated 24.01.2009 passed by the Rent Control and Eviction Officer. The Rent Revision No. 17 of 2009 and the Rent Revision No. 18 of 2009 were both dismissed by the Additional District and Sessions Judge, Kanpur Nagar. The order of the Rent Control and Eviction Officer thus attained finality.
7. Smt. Rati Chaturvedi thereafter filed SCC Suit No. 79 of 2016 on 04.10.2016 for eviction of Shri Suraj Narayan Gupta, Director of Moti Mahal Talkies from the property in question and for award of rent @ Rs. 5,000/- per month and damages for unauthorized occupation.
8. The said suit was contested by the revisionist by filing his written statement denying that he was an unauthorized occupant and saying that he was a lawful tenant since before 1950 @ Rs. 100/- per month inclusive of all taxes, and that the agreed rent was last paid to the previous landlord in July, 1993. It was also alleged that the suit was not maintainable as it suffered from non-joinder of necessary party and also from misjoinder of parties and it was barred under the provisions of the Order 7 Rule 11 as no cause of action had arisen as no notice was allegedly served on the defendant on 09.08.2016 or on 13.08.2016. It was also stated that the remaining amount of admitted rent for 218 months with interest and cost of the suit was being deposited under Order 15 Rule 5 C.P.C.
9. The defendant also amended the written statement alleging that Smt. Rati Chaturvedi was not the sole owner/landlord and the notice allegedly given to the Director was defective. The plaintiff filed replication saying that all other co-owners were not required to be plaintiffs in the suit for possession of the property in question as the plaintiff was acting on behalf of the co-owners and on behalf of herself.
10. When the case was taken up Mr. Nirvikar Gupta, learned counsel for revisionist has challenged the judgment and order impugned on several grounds. According to him, a specific objection was taken as to maintainability of the SCC Suit filed by one of the owners of the disputed property only, and non-joinder of necessary parties as the revisionist was arrayed as Director of the Company and not the Company itself i.e., Moti Mahal Talkies Pvt. Ltd.
11. Learned counsel for the revisionist has also argued that notice given by the plaintiffs-respondents was specifically disputed by the tenant-revisionist and an issue with regard to validity of notice and sufficiency of service was also framed by the learned Trial Court. The tenant-revisionist had also alleged that the property in dispute was never taken in any Rent Agreement from the owners, the plaintiff-respondents at the rate of Rs. 5,000/- per month as claimed in the Suit, and therefore, the SCC Suit itself was not maintainable alleging arrears of rent.
12. Learned counsel for the tenant-revisionist besides pointing out several alleged discrepancies in the order impugned, has also pointed out that initially the plaint that was filed in Suit No. 79 of 2016 was with a prayer that Rs. 1,76,000/- should be directed to be paid by the tenant-revisionist to the landlord-plaintiff as Licence Fee, and Rs. 3,500/- per month should be paid as damages and Rs. 5,000/- per month should be directed to be paid as mesne profits. The pleadings were completed, and the case was heard at length and judgment was reserved by the learned Trial Court on 12.12.2017, and it was fixed for delivery of judgment on 12.01.2018. On 12.01.2018 an application for amendment of the prayer clause was filed, registered as paper No. 41 Ga and instead of "Licence Fee" of Rs. 1,76,000/- as claimed in the plaint, the said "Licence Fee" was described as "damages" for unauthorised occupation. It has been argued that The aforesaid application for amendment in the plaint was allowed wholly arbitrarily without looking into the proviso to Order VI Rule 17, which specifically bars amendment in such cases after the trial has started/concluded, unless the Court comes to a conclusion that inspite of due diligence, the parties could not have raised the matter before commencement of the trial.
13. Mr Gupta has argued that despite several objections raised, the learned Trial Court has confined itself only to decision of the case on the basis of judgment cited by the plaintiffs-landlords without even ascertaining whether the said judgments are applicable to the facts of the case.
14. Mr. Atul Dayal, learned counsel who appears for the landlords has pointed out that when the application for amendment of relief clause in the plaint was allowed by the learned Trial Court subject to payment of cost, treating it to be a typographical error, the tenant-respondent accepted the payment of cost, and did not think it fit to challenge the order dated 27.01.2018 any further. He is therefore estopped from raising such plea now. It is apparent that the relief clause was inadvertently drafted claiming Rs. 1,76,000/- as Licence Fee because the case set up by the landlords before the learned Trial Court was that the tenant was an unauthorised occupant as neither any Lease Agreement was signed with him, nor Licence was granted to him by the landlords to continue in possession of the property in question, after the same was sold to them by the erstwhile owner Shri Raj Kumar Dhawan.
15. With regard to the validity of notice served upon the tenant-revisionist, Mr Atul Dayal, learned counsel for the landlords-respondents has submitted that the tenancy or otherwise unauthorised occupation of the revisionist, was never recognized and he has pointed out the contents of the notice served upon the tenant to vacate the premises in question. This notice dated 09.08.2016 clearly says that the revisionist is under unauthorised occupation of the Hall/property in dispute, and a demand of rent at the rate of Rs. 5,000/- was made from the date of the sale of the property in question i.e. w.e.f. 23.10.1998 upto the date of issuance of notice, as also the tenancy was terminated, and a demand was made for delivery of vacant possession of the property in question within a month.
16. With regard to service of notice on Suraj Narain Gupta, Director of Moti Mahal Talkies Pvt. Ltd., the same was sent on his two known addresses, and was returned, as "not claimed". Under the Evidence Act, there is presumption as to service of notice, and the learned counsel for the respondents has also relied upon two judgments of the Hon'ble Supreme Court as well as judgments of Co-ordinate Benches of this Court holding such service to be proper.
17. Learned counsel for the respondents has also pointed out the observation of this Court in Vandana Gulati vs Gurmeet Singh alias Mangal Singh, reported in 2013 (1) ARC 819, where this Court has considered all earlier precedents of the Hon'ble Supreme Court as well and presumption of law raised under section 114 of the Indian Evidence Act regarding due service of notice.
18. For the same proposition of law learned counsel for the respondents has also relied upon a decision in Santosh Kumari vs IVth Additional District Judge, reported in 2013 (1) ARC 308 (paragraphs 27 and 29) and a judgment of the Hon'ble Supreme Court in Ajeet Seeds Ltd. vs K. Gopala Krishnaiah, reported in 2014 (12) SCC 685 (paragraphs 9 and 10).
19. With regard to the ownership of property in question, the learned counsel for respondents has pointed out paragraph-1 of the written statement filed by the revisionist before the learned Trial Court, where he accepted the ownership of Shri Raj Kumar Dhawan of the property in question, and his tenancy since 1950 at the rate of Rs. 100/- per month, and also that the said property had been sold off by Shri Raj Kumar Dhawan not only to the plaintiff-respondents, but to several other co-owners. The revisionist had only disputed that all the owners had not been arrayed as plaintiffs.
20. Mr Atul Dayal has further submitted that with regard to the tenancy of the revisionist since 1950 of the Hall in question and some Agreement with Shri Raj Kumar Dhawan, the erstwhile owner, the plaintiffs-respondents were claiming title over the property in question from Shri Raj Kumar Dhawan through registered Sale Deed, if the revisionist was denying the tenancy, then obviously he was denying that he was a tenant of the property after 1998, and was thus in unauthorised occupation of the property in question, therefore, damages was claimed as well as the eviction.
21. Since, the Rent Control and Eviction Officer had accepted the objections made by the revisionist that the property in question was a Hall appurtenant to a Cinema Hall, where fixtures of the Cinema Hall like, Generator and Meter were installed, and therefore, was exempted from Rent Control Act altogether, then the only remedy available, for the landlord was to file the SCC Suit for eviction of the revisionist as unauthorised occupant. The revisionist cannot be allowed to approbate and reprobate at the same time. He cannot say that the Rent Control Act is not applicable and also that the SCC Suit is not maintainable in one and the same breath.
22. Learned counsel for the tenant-respondent has also referred to a judgment rendered by the Co-ordinate Bench of this Court in Waqf Allal Aula/Waqf Alkhair Allahtala Bijnor vs Ist Additional District Judge, Bijnor, reported in 2008 (3) ARC 428, wherein this Court held that if Rent Control Act does not apply, then the tenant is liable to be evicted simply after termination of tenancy. The fact of default or no default in payment of rent is wholly immaterial.
23. Learned counsel for the respondents has also referred to a judgment of Co-ordinate Bench in Sunita Gupta vs Prabhat Chandra Tandon, reported in 2010 (2) ARC 236, where a similar proposition of law has been laid down that once Rent Control Act was inapplicable and notice under section 106 of the Transfer of Property Act had been duly served terminating the tenancy, the tenant was liable for eviction.
24. Learned counsel for the respondent has further argued that the revisionist had accepted that he was the Director of Moti Mahal Talkies Pvt. Ltd. not only before the Rent Control and Eviction Officer, but also before the learned Trial Court in his written statement as well as oral evidence. The notice was served through registered post and in his oral evidence, the revisionist had stated that he did not remember whether he was in Kanpur in between 09.08.2016 to 20.08.2016. Besides, before the Trial Court, the revisionist had not said anywhere that the notice was invalid or had not been served in accordance with law.
25. It is the contention of Learned counsel for revisionist that even though he had made an objection to the application for declaration of vacancy and for release before the Rent Control and Eviction Officer and his objection was sustained that the Rent Control Act does not apply, his legal argument regarding applicability of U.P. Act No. 13 of 1972 cannot be just wished away as consent does not confer jurisdiction.
26. Learned counsel for the revisionist has also referred to a judgment of Supreme Court in Sushil Kumar Mehta vs Gobind Ram Bohra Dead, reported in 1990 (2) ARC 330, to the effect that any decree passed by a Court without jurisdiction is a nullity and will not operate as res judicata. Even if, the Rent Control and Eviction Officer had passed an order to the effect that the Rent Control Act was not applicable, since the revisionist was now disputing the applicability of the said Act, he could validly take such an objection, and failure to raise objection earlier, would not render a judgment rendered without jurisdiction binding upon the parties.
27. After the hearing was concluded before me while reserving the judgment on 25.04.2018 liberty was given to the counsel for either parties to file written submissions and case law in support of their arguments. Thereafter, written submissions were filed by counsel for both the parties i.e. Shri Nirvikar Gupta as well as Shri Atul Dayal.
28. I have carefully perused the written submissions so filed and have also gone through the judgment and order dated 24.02.2018 impugned in this revision under Section 25 of the Provincial Small Cause Court Act.
29. In the written submissions the revisionist has alleged that the suit was not maintainable as there was no agreed rent of Rs. 5,000/- per month and the learned Trial Court has also given a finding that the plaintiff could not prove the monthly rent being given at the rate of Rs. 5,000/-. Under Section 2 (1) (g) of the U.P. Act No. 13 of 1972 any building, of which monthly rent exceeds Rs. 2,000/-, is exempted from the applicability of the provisions of the Act. Since the lease rent of Rs. 5,000/- per month was not proved the suit filed under Section 106 of the Transfer of Property Act before the Small Cause Court was not maintainable.
30. It has also been submitted that the plaintiff did not state in the plaint that the defendant was a tenant of the disputed property and had repeatedly referred to the defendant as an unauthorized occupant, therefore, the suit was not maintainable before the Small Cause Court. Rather, it was maintainable before the Civil Court as a regular Civil Suit.
31. Several other grounds having been taken including the ground of exemption of the property from the Rent Control Act being part of the Cinema-hall and the same being accepted by the Rent Control and Eviction Officer, Kanpur Nagar had made the order itself to have been rendered without jurisdiction and could therefore have not acted as res-judicata and when the dispute was raised regarding the maintainability of the suit before the Judge, Small Cause Court, it should have been properly thrashed out by the Trial Court on the basis of the evidence on record instead of treating the property in dispute as exempted under the Act of 1972 placing reliance upon the earlier order passed by the Rent Control and Eviction Officer.
32. It has also been alleged that there was a misjoinder of the party, which was specifically averred, as also non-joinder of necessary party as Ganga Tarang Pictures was the owner of Moti Mahal Talkies and it was not arrayed as a party, but Director, Moti Mahal Talkies alone was arrayed as defendant. It has been argued that Smt. Rati Chaturvedi was not sole owner of the property in dispute and she could not have filed the suit. Moreover, she was never examined in person and on oath, but her husband Shri Sanjiv Kumar Chaturvedi appeared on her behalf in the examination-in-chief on the basis of a Special Power of Attorney, which was inadmissible. Since Shri Sanjiv Kumar Chaturvedi had admitted in his oral statement that defendant had not paid even a single rupee towards the rent even though the plaintiff has demanded Rs. 5,000/- per month as damages of the property in dispute from the date of its purchase; it was apparent that plaintiff-respondents were treating the defendant as an unauthorized occupant and not as tenant and as such, for eviction of an unauthorized tenant a regular suit alone was maintainable.
33. Further assailing the impugned order, it has been argued on behalf of the revisionist that the suit was not filed by lessor against lessee for eviction after determination of the lease. It was filed against an unauthorized occupant or against a licensee or a tress-passer. It was, therefore not maintainable.
34. It has also been submitted that the Trial Court wrongly allowed the amendment application after the arguments were heard and suit was posted for delivery of judgment by its order dated 27.01.2018. Hence, order dated 27.02.2018 should also be set aside by this Court in this revision. Several other grounds have been taken for challenge to the order dated 27.01.2018 which cannot be considered by this Court as the revision has been filed only against the decree dated 24.02.2018.
36. The written submissions filed by the revisionist run into 39 closely typed pages and copies of 36 judgments running into about 230 pages have also been filed in support of the arguments raised in the written submissions. Much of the written submissions that have been filed by the revisionist relate to factual dispute and this Court cannot go into such submissions that were never raised before the learned Trial Court in the first place. In view of the jurisdiction exercised by this Court under Section 25 of the Provincial Small Cause Court Act.
37. This Court is aware of the judgment of the Constitution Bench in Hindustan Petroleum Corporation Ltd. Vs. Dilbahar, (2014) 9 SCC 78 where the Supreme Court has observed that the revisional jurisdiction under Section 25 of the Provincial Small Cause Court is somewhat wider than the revisional jurisdiction exercised under Section 115 of C.P.C. However, it could not be treated to be so wide as to turn the Court into an Appellate Court. The High Court is not conferred with the status of Second Court of First Appeal and High Court should not enlarge the scope of revisional jurisdiction to such an extent. It has been observed that re-appreciation of evidence cannot be undertaken in revisional jurisdiction and the High Court should confine itself to finding out whether the finding of facts recorded by the Court below is according to law and it does not suffer from any error of law. A finding of fact recorded by the Court/Authority below if perverse or has been arrived at without consideration of material evidence or such findings is based on no evidence, or misreading of evidence, or is grossly erroneous that if allowed to stand, it would result in grave miscarriage of justice, is open to correction. However, to satisfy itself to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein, the High Court should not exercise its power as an appellate power to re-appreciate and reassess the evidence for coming to a different finding on facts. The revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as Court of First Appeal.
38. Keeping in mind the revisional jurisdiction under Rent Control matters as defined by the Hon'ble Supreme Court in its Constitution Bench decision, this Court has gone through the judgment and order dated 24.02.2018 in its entirety. The learned Trial Court after stating the facts as mentioned aforesaid has framed 11 issues with regard to (1) whether the plaintiff was owner of the property?; (2) whether the suit suffers from non-joinder of necessary party?; (3) whether the suit suffers from misjoinder of parties?; (4) whether the defendant ought to have been arrayed as a company by the plaintiff?; If not so, whether the suit is not maintainable? (5) whether the plaintiff sent the notice to defendant in accordance with rules and the service of said notice was sufficient according to law? (6) whether the defendant was a lawful tenant or an unauthorized occupant?; (7) whether the defendant complied with Order 15 Rule 5 of C.P.C. according to law? (8) whether defendant is a tenant of plaintiff at the rate of Rs. 5,000/- per month? (9) whether the production of her husband as PW - 1 for his examination by the plaintiff who herself is a competent witness is in accordance with law?; (10) whether the suit was maintainable under Section 106 of the Transfer of Property Act?; and (11) whether the plaintiff was entitled to any relief? If yes, to what?
39. With regard to the issue No. 1 it was undisputed that the plaintiff was one of the owners of the property on the basis of the registered sale deed dated 23.10.1998. There may have been several other owners also. The plaintiff was certainly one of the owners. With regard to the nonjoinder and misjoinder of parties and whether Ganga Tarang Pictures ought to have been arrayed as a defendant, the learned Trial Court has found that the defendant had never stated in his written statement that Moti Mahal Talkies was owned by Ganga Tarang Pictures Private Limited. He had admitted that he was the Director of Moti Mahal Talkies which was a Firm and not a Company. A partnership Firm could be arrayed through one of its Directors. In this case Mr. Suraj Narayan Gupta was admittedly the Director of the partnership Firm. The other members of the Firm were his sons, daughters and other relatives. The fact of Moti Mahal Talkies being owned by Ganga Tarang Pictures Private Limited company was stated for the first time by the defendant in his oral statement. The learned Trial Court rightly found that being Director of Moti Mahal Talkies and the property in dispute being one where the Generator and Electricity meter of Moti Mahal Talkies was housed, the suit did not suffer from nonjoinder or misjoinder of parties.
40. It was settled law that one of the owners could issue a notice for determination of rent and for eviction of tenant as long as other co-owners of the property did not object to such notice being issued and tenancy being terminated and demand being made for vacant peaceful possession. The Supreme Court has time and again reiterated that the co-owner in a jointly owned property where shares are not demarcated by metes and bounds, can issue a notice and file a suit on behalf of not only himself as the owner but as a representative of other co-owners also. The judgements relied upon by the learned Trial Court in this regard cannot be disputed to be stating the correct position in law. In India Umbrella Manufacturing Company Vs. Bhagabandei Agarawalla, (2004) 3 SCC 178 the Supreme Court has observed that when one co-owner filed a suit for eviction against the tenant he does so on his own behalf in his own right and as an agent of other co-owners, the consent of other co-owners is assumed as taken unless it is shown that the co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. It also observed that one of the co-owners cannot withdraw his consent midway in the suit so as to prejudice the other co-owners. Similarly, in Om Prakash and another Vs. Mishri Lal (Dead) represented by his LR. Savitri Devi, (2017) 5 SCC 451 the Supreme Court has referred to several of its decisions rendered earlier and held that the suit for eviction of a tenant can be maintained by one of the co-owners. The property being jointly owned, every co-owners owns every part and every bit of joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property.
41. With regard to the issue whether the defendant was a tenant or an unauthorized occupant, the learned Trial Court has referred to the contents of the notice dated 09.08.2016 and 13.08.2016 and the contents of the plaint as well as the contents of the written statement and the oral examination of the defendant. In the notice sent by the landlady the fact of buying the property from its erstwhile owner Raj Kumar Dhawan on 23.10.1998 through registered sale deed has been mentioned clearly. It has also been mentioned that the landlady had demanded rent @ Rs. 5,000/- per month repeatedly, which was not given and it was also stated that vacant possession of the property in dispute be given. The notice clearly stated "vkius esjh vknsf'kdk dks 23 vDVwcj 1998 ls u rks mDr gkyuqek dejs dk fdjk;k fn;k gS u gh [kkyhdj dCtk fn;k gSA vkius esjh vknsf'kdk ds mDr Hkkx ij voS/k rjhds ls tujsVj o fctyh dk ehVj yxk j[kk gSA** Further it states in paragraph - 5 thus: ";g fd vkius 23 vDVwcj 1998 ls vkt rd gkyuqek dejs dk fdjk;k [email protected]& :i;s izfrekg ds fglkc ls vkt rd vnk ugha fd;k gSA ckj&ckj ekaxus ij fdjk;k vnk ugha dj jgs gaSA"
It goes further to state in paragraph - 6 ";g fd vkidh fdjk;snkjh bl uksfVl izkfIr ds rhlosa fnu lekIr dh tkrh gSA** and thereafter directs the defendant to remove his effects from the property in dispute.
42. The learned Trial Court also considered the fact that the defendant in his written statement had averred that he was tenant of the property in question since before 1950 @ Rs. 100/- per month and till July, 1993 had tendered the rent to the erstwhile owner. He had submitted rent receipts dated 27.05.1991 and 28.05.1993 as documentary evidence marked as Paper Nos. 30-C and 31-C. Since August, 1993 onward the defendant has not been paying any rent to the erstwhile owner and later on, when the property was bought on 23.10.1998, he did not offer any rent either through money order or by deposit under Section 30 of the Rent Control Act before the competent court, and only after the suit was instituted on 04.10.2016 the defendant had deposited the rent @ Rs. 100/- per month for 23 years and two months all together. The registered sale deed was not disputed. The settled position of law is that the current owner of the property steps into the shoes of the erstwhile owner. Since the erstwhile owner was the landlord, even without attornment, the current owner became the landlord.
43. The learned Trial Court has found that the defendant cannot be said to be an unauthorized occupant as he did not take forcible possession and did not also claim adverse possession. He claimed that he was tenant of the erstwhile owner and had been tendering the rent to the erstwhile owner. It was only after the property was bought, he became "a tenant at sufferance". The defendant was claiming himself to be the tenant and therefore, the SCC Suit could have been filed against him for eviction by the landlords. A SCC Suit for eviction can also be filed against a person who claims himself to be a tenant as has been held by the Hon'ble Supreme Court in Smt. Pushpa Devi and others Vs. Milkhi Ram, (1990) 1 ARC 280, paragraphs - 17, 18, 22 and 26.
44. The learned Trial Court while considering whether deposit under Order XV Rule 5 of CPC was adequate and legal found that there was no written or oral agreement between the plaintiff and the defendant after purchase of property on 23.10.1998 for fixing of rent @ Rs. 5,000/- per month, thus, Rs. 63,000/- deposited for 218 months of arrears of rent and the alleged rate of rent of Rs. 100/- per month could not be said to be deposit of agreed rent between the landlord and tenant. However, at the same time, the learned Trial Court has found that Rs. 5,000/- as rent could not be claimed by the plaintiff as no agreement had been entered into either oral or written between the parties. Here, the one pragmatic view of the matter cannot be overlooked that the plaintiff being owner after the purchase of the property can demand the enhanced rent of the property in question at its market value and if enhanced rent is not paid, the purchaser can ask the tenant to vacate the premises in question even if there is no such agreement between the parties. In this case the fact was otherwise i.e. the tenant had failed to deposit even the admitted rent of Rs.100/- per month either in Court under Section 30; nor did he make any attempt to tender it by money order to the current landlord.
45. Now, I proceed to examine the finding of the learned Trial Court returned with regard to the non appearance of the plaintiff for examination-in-chief and giving Special Power of Attorney to her husband Sanjeev Kumar Chaturvedi in this regard who appeared as PW-1. The learned Trial Court has rightly considered Section 120 of the Evidence Act. The husband of the plaintiff was looking after the affairs of the property since the very beginning and he had been authorized to appear and depose before the Court. A husband can appear before any Court and depose on behalf of his wife, and vice versa. In AIR 1999 SC 3089: Smt. Ramkubai Since Deceased By LRS and others Vs. Hajarimal Dhokalchand Chandak & others the Supreme Court has observed that there is no requirement of law that plaintiff landlord or landlady shall necessarily examine himself or herself to prove his or her case. In this case, there were no special facts within the personal knowledge of the landlady/plaintiff which were not known to her husband who was looking after the affairs of the property in dispute since the very beginning. Hence, the finding of the learned Trial Court in this regard cannot be said to be suffering from any infirmity.
46. The learned Trial Court has referred to several judgements of the High Court also rendered in this regard namely AIR 2017 Karnatka 835; AIR 2017 Gauhati 131: ; (2015) 3 JCLR 31 (All), besides referring to the judgments of the Supreme Court in Mankaur Vs. Hartar Singh Sangha, AIR 2010 SC 209 and Vidyadhar Versus Manikka Rao, AIR 1999 SC 1441.
47. The issue with regard to the maintainability of the suit under Section 106 of the Transfer of Property Act has also been decided in favour of the plaintiff by the learned Trial Court by referring to the demand of Rs. 5,000/- per month as rent from the defendant by the plaintiff. The defendant had repeatedly alleged in his written statement and in his oral statement that he is not in unauthorized occupation, but had lawful tenancy over the property in dispute since before 1950. Since Moti Mahal Talkies which was a Cinema-hall had its Generator and Electricity meter placed in the property in dispute, and in Rent Control Eviction proceedings under Section-12 and Section-15 of the Act, the defendant had accepted that the property was part of the cinema-hall, it could not now be said by the defendant that the property in question was not part of the cinema-hall and thus, not exempt from the provisions of the U.P. Act No. 13 of 1972.
48. On the basis of the findings given in favour of the plaintiff on 8 out of 10 issues so framed, when the Trial Court considered the question of relief to be granted under the issue No. 11, it took into account the finding of rate of rent of Rs. 100/- being admitted by the tenant and the deposit of Rs. 63,000/- for 218 months towards arrears of rent as adequate and directed its adjustment as arrears of rent admissible to the landlady.
49. From the date of judgment i.e. 24.02.2018 however Rs. 2,500/- has been directed to be paid as damages per month, till the delivery of vacant and peaceful possession to the landlady. The defendant has been directed to hand over the vacant and peaceful possession of the property within two months to the plaintiff.
50. This Court does not find any good ground to show interference in the said relief granted by the learned Trial Court. Although in the written submissions an argument has been raised that the format of the decree made out thereafter i.e. 27.02.2018 is defective. Since there is no pleading as to how it is defective, as also to what extent it prejudices the revisionist, this Court does not find it necessary to take into account the same.
52. This Court finds from a perusal of the judgment and order under Revision that the learned Trial Court has rightly determined the arrears of rent @ Rs. 100/- per month till the date of the judgment, and also rightly directed the payment of damages @ Rs. 2,500/- per month for the room in question admeasuring 15' x 12'.9'' in the heart of the city of Kanpur till delivery of actual possession to the landlady.
53. This Court finding this revision to be devoid of merit, dismisses the same and directs the revisionist to hand over the vacant and peaceful possession of the property to the plaintiff-respondent within one month from today.
54. Since this Court has not interfered with the learned Trial Court's order, all benefits arising out of the judgment and order dated 24.02.2018 shall also be available to the respondents.
Order Date :- 20.12.2018 LBY