IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 5273 of 2001 (Old CMWP No. 29256 of 1991) Fatesh Ram Gaur S/O Sri Bhola Dutta Gaur, Prop. Gaur Hotel, Duggada Town, Tahsil-Kotdwar, District Pauri Garhwal. … Petitioner. Versus 1. District Judge, Pauri Garhwal and others. … Respondents. Mr. J.C.Belwal, Advocate, learned counsel for the petitioner. Mr. Rahul Consul, Advocate, learned counsel for the respondent no.2. Date April 18, 2011. Hon’ble B.S.Verma, J. (Restoration Application No. 224 of 2011.) (Delay Condonation Application No.2732 of 2011) (Application for substitution No. 2733 of 2011) (Delay condonation application in filing substitution Application No. 2734 of 2011) (Application for setting aside abatement No. 2735 of 2011) This writ petition was dismissed for want of prosecution by order dated 30-7-2010. The petitioner has moved restoration application to recall the order dated 30-7-2010. Along with the restoration application, the petitioner has filed delay condonation application no. 2732 of 2011, which is accompanied by an affidavit, to condone the delay in filing the restoration application. Heard learned counsel for the parties and perused the record. Grounds are sufficient to condone the delay in moving the restoration application. Delay condonation application is allowed. Delay in filing the restoration application is condoned. 2 The order of dismissal dated 30-7-2011 is hereby recalled. The restoration application is allowed accordingly. The writ petition is restored to its original number. A perusal of the record shows that the respondent no. 2 had died on 20-8-1992 during the pendency of the writ petition. The substitution application has been filed by the petitioner to substitute the legal heirs of the deceased respondent no.2 in place of respondent no.2 (since deceased). The petitioner has also filed delay condonation application to condone the delay in moving the substitution application. Petitioner has also filed an application for setting aside abatement along with the substitution application. Heard and perused the record. Grounds are sufficient to condone the delay in moving the substitution application. The delay condonation application no. 2734 of 2011, substitution application No. 2733 of 2011 as well as application for setting aside abatement no. 2735 of 2011 are allowed. The respondent no. 2 shall be substituted by his legal heirs as respondent nos. 2/1, 2/2, 2/3, 2/4, 2/5, 2/6 and 2/7 in the array of respondents. The petitioner is directed to file amended memo of parties during the course of the day. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 12- 9-1990 passed by the Judge, Small Causes Court, Pauri Garhwal (for short J.S.C.C.) in S.C.C. Suit No. 26 of 1986, Lalita Prasad 3 Vs. Fateh Ram and the judgment and order dated 25-9-1991 passed by the District Judge, Pauri Garhwal, in S.C.C. Revision No. 8 of 1990. By the order dated 12-9-1990, the learned J.S.C.C./Civil Judge Pauri Garhwal had decreed the suit for recovery of rent and ejectment of the respondent no.2-plaintiff against the petitioner. By the order dated 25-9-1991, the revision filed under Section 25 of the Provincial Small Causes Court Act was dismissed by the revisional court. Brief facts giving rise to the present writ petition are that the plaintiff-respondent no. 2 Lalta Prasad Sundriyal filed a suit for rent and ejectment against the petitioner-Fateh Ram Gaur on the ground that the plaintiff is owner of disputed premises as mentioned in the plaint and the defendant-petitioner was a tenant in a portion of the said premises at the rate of Rs. 120/- per month. The defendant defaulted in payment of rent from May 1986. A notice dated 27-6-1986 was given to the defendant-petitioner thereby the tenancy of the defendant was terminated but the defendant despite service of notice neither paid the rent nor vacated the premises in question. Ultimately, the respondent no.2-plaintiff filed S.C.C. Suit No. 26 of 1986 in the court of the J.S.C.C. for recovery of rent and damages and for eviction of the defendant. The defendant-petitioner contested the suit by filing his written statement alleging therein that no rent was due against him. Service of notice was denied and it was alleged that no legal notice was served, therefore, the suit is not maintainable. It was asserted that the alleged tenancy was terminated on 31-7-1986 but the rent was demanded by the plaintiff upto August 1986. The defendant had paid rent till April 1986. The defendant repaired the premises in question under the instructions of the plaintiff- respondent no. 2 and it was agreed that the cost thereof shall be adjusted in the rent. After adjusting the said cost towards payment of rent, the defendant is not a defaulter. 4 The learned J.S.C.C. recorded evidence of the parties and after hearing them, decreed the suit vide judgment and decree dated 12-9-1990. Aggrieved, the defendant-petitioner filed revision bearing S.C.C. Revision No. 8 of 1990 before the revisional court. The revisional court also did not find favour with the petitioner and dismissed the revision by its order dated 25-9-1991, which gave rise to the present writ petition. Learned counsel for the parties ready to argue the writ petition finally today itself without counter version. The main ground of challenge raised in this writ petition is that the courts below have committed manifest error of law in not considering the fact that the rent of the premises in question was paid by the petitioner till April 1986 and at the time of filing of suit, the defendant-petitioner was not in arrears of rent for more than 4 months, therefore, the suit of the plaintiff-respondent no. 2 was not legally maintainable and that no legal notice was served upon the petitioner-defendant. I have heard learned counsel for the parties and perused the material placed before this Court. At the outset it may be mentioned that it is well settled that in writ jurisdiction this Court cannot sit like a court of appeal and cannot re-appreciate or re-evaluate the evidence led by the parties so as to arrive at a different conclusion. Only the perversity in the impugned judgment can be examined. So far as the question whether the defendant-petitioner had paid the rent to the plaintiff-respondent no. 2 and that the petitioner is not a defaulter in payment of rent is concerned, the learned J.S.C.C. on the basis of evidence led by the parties has 5 already recorded a finding of fact that rent amounting to Rs. 2102/- was due against the defendant, which was not paid by the defendant either before filing of the suit or on the first date of hearing in the Court. It was also held that the defendant is not entitled to the benefit of the provision of Section 20(4) of the U.P. Act No. 13 of 1972 to escape his eviction from the premises in question. The finding on this point, recorded by the learned J.S.C.C. is based on appraisal of evidence and it is a finding of fact, which cannot be interfered with in exercise of writ jurisdiction. So far as the contention of the petitioner that no legal notice was served upon him is concerned, the learned J.S.C.C. has found that the plaintiff filed postal receipt of registered notice sent by the plaintiff-respondent. It appears that the petitioner could not discharge his burden to prove that no notice was served upon him. I have perused the impugned judgment and decree passed by the learned J.S.C.C. and the order passed by the revisional court. There is concurrent finding of fact recorded by the two courts below on the point of default in payment of rent. Both the courts below have elaborately dealt with the controversy involved in this writ petition. I do not find any perversity or manifest error of law in the impugned orders. The writ petition being devoid of merit is liable to be dismissed outright. The writ petition is dismissed with no order as to costs. However, the petitioner is granted six months’ time to vacate the premises in question, provided the petitioner furnishes an undertaking in writing to the effect that he shall vacate the premises in question before the expiry of the said period of six months and shall handover vacant and peaceful possession to the plaintiff- respondent no.2 within a period of two months and provided further that the petitioner deposits the entire decretal amount before the J.S.C.C. within a period of two months and he continues to pay/deposit the rent/damages month to month by the seventh day of 6 . In case of default by the petitioner-defendant, as directed above, the respondent no. 2-plaintiff would be at liberty to get the premises in question vacated in accordance with law. The interim order dated 11-10-1991 is vacated. (B.S.Verma, J.) RCP