HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the Case. W.P.No.800 m.s of 2004 Biddheshwar Pande Vs Swami Atma Prakash and another. Approved for reporting ______________________ Not approved for reporting Date of decision 27.9.2004 Initial of Judge Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 800 (M/S) of 2004 Siddheshwar Pande ……………………. Petitioner Versus Swami Atma Prakash and another. …………………. Respondent. ……….. Hon. Rajesh Tadnon, J. By the present writ petition the petitioner has prayed for a writ of certiorari praying for the quashing of the order dated 9.8.2004 passed by the respondent no. 2 in Revision No. 9 of 1999. Briefly stated, a suit was filed in the Court of Judge Small Cause Court, Haridwar by the plaintiff respondents praying for eviction of the petitioner on the ground of arrers of rent for the period between 01.09.1991 to 15.06.1993 at the rate of Rs. 200/- per month alongwith 10% water tax. The plaintiff-respondent has sent a notice claiming the rent from 01.08.1991 to 30.04.1993 amounting to Rs.4200/-. The defendant had filed a written statement and has denied that the rent was Rs. 200/- per month. It was stated that the agreed rent was Rs. 125/- including taxes. He has prayed for depositing the rent from 1st March, 1993 to 31st of July 1993. He was permitted to deposit the same amounting to Rs. 625/-. The defendant has also stated in the written statement that he has paid the rent to the plaintiff and he has also sent the rent by money order regarding March, April and May, 1993 to the extent of Rs. 375/- and the charge of electricity amount to Rs. 101. In Paragraphs 16 and 17 of the Written statement, it has been stated that for the months of April, May and June, 1993 the rent was sent to the extent of Rs. 500/-. So far as the rent from 1991 is concerned, the defendant has stated that he was prating the rent to the plaintiff per month and the rent upto 28- 02.1993 was paid to the plaintiff. Judge Small Cause Court has recorded a finding that the rate of rent is Rs. 125/- per month. So far as arrears are concerned, a finding was recorded that the defendant has paid the amount under order 15 Rule 5 C.P. C. and the finding was recorded that no rent was due. So far the other issues are concerned, the trial Court has decided the issues against the plaintiff. The plaintiff has preferred a revision before the District Judge. The learned District Judge has recorded a finding that the rate of rtent ws fixed as Rs. 125/- per month. So far as default is concerned the revisional Court has come to the conclusion that the defendant has been defaulter. The revisional Court has also recorded a finding tht the defendant has not paid the rent from 1.08.1991 and as such he is liable to be evicted from the premises in dispute. The petitioner has filed the present writ petition challenging the order passed by the revisional Court on the following grounds: 1. There has been no default, as the money order sent by the defendant has not been taken into consideration. 2. The revisional Court was not competent to enter into the re- assessment of evidence under section 25 of the Provisional Small Cause Court Act. Arrears of rent The plaint case of the landlord is that the defendant is in arrears from 01.08.1991 to 30.04.1993 and a demand of Rs. 4200/- was sent. The petitioner in his written statement has stated that the money order was sent before 28the February, 1993, which was sent by money order. The defendant could not produce any documentary evidence that the rent before 28th February, 1993 was ever sent to the plaintiff. Further it has been admitted by the defendant that the money order ws sent only for the month of Feb., March and April of 1993 and no money order was sent between 1991 to 1993. Paragraphs 16 and 17 of the written statement are being quoted below:- ^^;g fd blds Ik’pkr izfroknh mRrjnkrk ds iqu% oknh ds ikl cekg ekpZ &vizSy o ebZ 1993 bZ0 dk fdjk;k jkf’k rknknh eqcfyx 375@&#i;s ¼rhu lkS fipgRrj½ #Ik;s fd ftl jkf’k esa leLr dj o ikuh O;; lfEefyr gS] rFkk blh vof/k dk fo/kqRk O;; lc ehVj jhfMx vuqlkj rknknh eqcfyx 101@&#i;s ¼,d lkS ,d½ #Ik;s tqeyk eqcfyx 475@&#Ik;s ¼pkj lkS fN;sRrj #i;s½ ctfj;s euhvkMZj Hksts Fks] vkSj ml jkf’k dks Hkh Lokeh vkRe izdk’k ;fr oknh us izkIr u djds okfil ykSVk fn;k FkkA** ^^;g fd blds mijkar izfroknh mRrjnkrk us iqu% oknh ds ikl ekpZ@vizSy@ebZ o twu &1993 bZ0 dk fdjk;k jkf’k rknknh eqcfyx 500 #Ik;s ¼ikWp lkS #I;s½ fd ftl jkf’k esa leLr dj o ikuh O;; lfEefyr gS rFkk blh vof/k dk fo?kqr O;; lc ehVj jhfMax vuqlkj rknknh eqcfyx 641@#Ik;s ¼N% lkS bdrkfyl #Ik;s½ ctfj;s euhvkMZj Hksts Fks vkSj ml jkf’k dks Lokeh vkRe izdk’k ;fr oknh us izkIr u djds okfil ykSVk fn;k FkkA** In view of the aforesaid fact, the plaintiff has successfully proved tha the defendant is a defaulter within the meaning of Section 20 (a) of U.P.Act No. XIII of 1972. Interference under section 25 of the Provincial Small Cause Court Act: Counsel for the plaintiff-respondent has submitted that the revisional court has no right to interfere with the findings of facts recorded by the trial Court. Here in the present case the revisional Court has considered the default of the defendant as contemplated under section 20(1) (a) of the U.P.Act No. XIII of 1972. Admittedly the defendant-petitioner has failed to give any proof of the payment of the rent. In Madan Mohan and another Vs. Krishan Kumar Sood reported in Supreme Court and Full Bench Rent Cases, 1993, the Apex Court has observed as under: “In such cases it will be advisable if the Controller while passing the order of eviction on the ground specified in clause (i) of sub-section (2) of Section 14 of the Act specifies the “amount due” till the date of the order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due. Surely the Rent Control Acts, no doubt, are measures to protect tenants from eviction except on certain specified grounds if found established. Once the grounds are made out and subject to any further condition which may be provided in the Act, the tenants would suffer ejectment. Again the protection given in the Acts is not to give licence for continuous litigation and bad blood. Surely the legislature which made the act could not have envisaged that after the parties fininsh of the one round of litigation for recovery of the rent which accrued pendente lite. Whatever, protection Rent Acts give they do not give blanket protection for “non-payment of rent”. This basic minimum has to be complied with by the tenants. Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent.” The above case Madan Mohan (supra) has been followed in the case of Mohd. Siddiqui Vs. IInd Additional District Judge, Unnao and others reported in Allahabad Rent Cases, 1997(2). It has been held as below: “21. As pointed out by the Apex Court in its decision in the case of Madan Mohan and another Vs. Mohan Kumar Sood, reported in 1993(1) JT 162: 1993 SCFBRC 133 (SC), whatever protection the Rent Acts give they do not give blanket protection for non-payment of rent. This basis minimum has to be complied with by the tenants. The Rent Acts do not contemplate that if one takes a house on rent he can continue to enjoy the same without payment of rent. 22. In the aforesaid view of the matter, the petitioner once having been informed that he had fallen in arrears in regard to payment to rent for more that the requisite period, was duty bound to clear the arrears if any tendering the same to the landlord or deposit the same in Court as provided under the Act, if he wanted the protection of the Act. He could not just ignore the notice on the ground that it contained an inflated demand and on that ground continue to enjoy the accommodation let out to him without payment of rent, it may be observed that once after receiving the notice informing the tenant that he has been defaulting in payment of rent for the prescribed period and he may be evicted, the tenant in order to save his default, if there be any, must pay the rent due according to him, to the landlord or deposit the same in accordance with the provisions of the Act otherwise he has to face the consequence. This it seems to me is the underlying policy of the Act and amply safeguards the interests of both the landlord and the tenant, maintaining a just balance between their competing interests. 23………….In the present case, the landlord had come up with the definite allegation that the tenant was in arrears of rent for more than the prescribed period and no rent had been paid by him for the period 1.11.1974 to 30.05.1978. In view of the assertion of the landlord on oath in this regard, the onus of proof stood shifted on the tenant to show payment or rent as claimed. The trial Court recorded a clear and categorical finding to the effect that the defendant has failed to prove the payment of rent for the period prior to 1.4.1978. This finding stands affirmed in revision. In face of the aforesaid finding based on an appraisal of evidence on the record which finding does not appear to suffer from any such infirmity which may justify any interference therein, while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India, there could be no impediment in the grant of the decree for ejectment against the petitioner as prayed for specially when the rent for the period subsequent to 1.4.1975 which was admittedly due was not tendered or paid within the time prescribed.” Since the respondent has proved that the defendant was in arrears of rent, therefore, the jurisdiction has been rightly exercised. The revisional Court can always examine the question pertaining to legal aspect of the matter and the restrictions will not come in the way of the plaintiff to claim the decree for eviction in case he has proved that the defendant is in arrears of rent within the meaning of Section 20(1)(a) of the Act. The Division Bench of the Allahabad High Court in the case of Laxmi Kishore and another Vs. Har Prasad Shukla reported in A.R.C. 1981 page 545 specifically provides as under: “19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the Court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The Court can also decide the revision if only a question of law or some preliminary point of law, viz.. validity of notice, is sufficient for its decision. 20.But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires, but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself, if it cannot dispose of case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines, it cannot inter into the evidence, assess it and determine an issue of fact.” As will appear from the facts on record that the default has been fully established by the defendant for more than four months, therefore there cannot be any other conclusion except which has been recorded by the revisional Court to the following effect: ^^bl rjg ls Ik=koyh ij miyC/k lk{; ds vk/kj ij ;g Li"V gks tkrk gS fd izfroknh Qjojh 93 rd dk fdjk;k oknh dks fn;s tkus dk F; lkfcr djus esa vlQy jgk gSA ;gkW rd dh vxLr 91 ls Qjohj 93 rd dk fctyh ehVj jhfMxa ds vuqlkj ;fn dksbZ fctyh pktsZp izfroknh ds dFkukuqlkj vnk fd;k Fkk rks mlds lEcU/k esa izfroknh ds ikl ehVj jhfMax gksrh rkfd og ;g rF; lkfcr djrk fd ehVj jhfMax ds vuqlkj mlus izfrekg fdrus :I;s fctyh pktsZp ds vnk fd;s gSA bl rjg ls Ik=koyh ij miyC/k lk{; ls ;g Li V gks tkrk gS fd izfroknh iz’uxr lEifRr esa 125@:Ik;s izfregkg dh nj ls fdjk;snkj Fkk vkSj fdjk;s ds vfrjDr tydj vkSj leLr VSDl nsus dh ftEesnkjh izfroknh dh Fkh rFkk fdjk;s dh /kujkf’k esa leLr dj lfEefyr ugh FksA Ik=koyh ds voyksdu ls ;g Li"V tkrk gS fd izfroknh ds mij 1-8-1991 ls fdjk;k e; leLr dj cdk;k gS vkSj izfroknh }kjk fdjk;k vnk djus esa fMQkYV ,oa pwd dh x;hA** Interference under Article 226/227 of Constitution of India: The jurisdiction under article 226/227 of the Constitution of India is limited and High Court cannot act like a Court of appeal so as to interfere with the findings of the revisional authority. The Apex Court in the case of Shyam Lal Vs. Rasool Ahmed (dead) by L.Rs. reported in (2002) 9 SCC 499 has observed as under: “Lastly, it was submitted that the District Court exercising revisional jurisdiction did not have jurisdiction to interfere with the findings of fact arrived at by the trial Court. This submission is also liable to be rejected. Firstly, it was a revision preferred under section 25 of the Provincial Small Cause Court Act, the jurisdiction whereunder is not so limited as it may be under section 115 of the Code of Civil Procedure. Secondly, as we have already pointed out the learned District Judge had assigned convincing reason for arriving at a finding different from the one arrived at by the trial Court and on the material available on record, the District Judge though exercising revisional jurisdiction was fully justified in interfering with findings of fact arrived at by the trial Court which overlooked the weighty relevant material available on record and clinching the issue.” Relying upon the earlier judgment in the case of Surya Dev Rai Vs. Ram Chander, SCC 2003 Vol. 6 page 675, the Apex Court has held in the case of Ranjit Singh Vs. Ravi Prakash (2004) 3 Supreme Court Cases 682 as below: “In Surya Dev Rai Vs. Ram Chander Rai this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self- evident. An error, which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form tow opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Devi Rai that the jurisdiction was not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a Court of appeal. The High Court has itself recorded in its judgment that- “ considering the evidence on the record carefully” it was inclined not to sustain the judgment of the appellate Court. On its own showing, the High Court has acted like an appeal Court which was not permissible for it to do under Article 226 or 227 of the Constitution.” There being no evidence on record to prove with regard to payment of rent prior to 1993, the writ jurisdiction, therefore, under Article 226 and 227 of the Constitution of India cannot be invoked to give relief to a defaulter. In view of the aforesaid, writ petition lacks merit and is hereby dismissed. There will be no order as to costs. However, time is granted by 31st of December, 2004 to vacate the premises provide and undertaking is given in the following terms by the petitioners: (i) to vacate to premises upto 31st of December 2004 (ii) to pay entire damages for use and occupation upto 31st December, 2004 by 30th October, 2004. (iii) The undertaking shall be furnished by 15th of October, 2004. (iv) In case of default the decree for eviction shall be executed forthwith. September 27 ,2004 (Rajesh Tandon, J.) A