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SRI THAKUR RAM CHANDRAJI JANKIJI THROUGH MANAGING TRUSTEE versus IVTH ADDL. DISTRICT JUDGE, VARANASI & OTHERS

High Court of Judicature at Allahabad

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Sri Thakur Ram Chandraji Jankiji Through Managing Trustee v. Ivth Addl. District Judge, Varanasi & Others - WRIT - A No. 43300 of 2001 [1998] RD-AH 2 (16 May 1998)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 28

CIVIL MISC.WRIT PETITON NO. 43300 OF 2001

Sri Thakur Ram Chandraji

Vs.

The IV Additional District Judge, and others.

Hon'ble Krishna Murari, J.

Heard Sri C.K. Parekh learned counsel for the petitioner.

Though the case has been taken up in the revised list, no one has appeared on behalf of respondents.

The dispute relates to shop situate in premises No. C-22/12 Jhhandawale Kabir Chaura, City Varanasi which is in the tenancy of the respondent nos. 3 to 5 at a monthly rent of Rs. 10/. The landlord /petitioner terminated the tenancy by means of notice and thereafter filed a JSCC Suit No. 186/1988 for arrears of rent and ejectment. The ejectment was also sought on the ground of sub-tenancy. The suit was contested by the tenant/respondents by filing written statement. It was contended in the written statement that neither notice terminating the tenancy was served nor they were in arrears of rent. The fact of sub-tenancy was also denied. The trial court vide judgment and order dated 4.1.1999 dismissed the suit. The appeal filed by the petitioner was also dismissed by the trial court and the findings of the trial court were confirmed. Feeling aggrieved the petitioner /landlord has approached this court by instant writ petition.

It has been urged by the learned counsel for the petitioner that the court below wrongly held that notice has not been served because if the notice is sent at correct address by registered post and is returned back with endorsement of refusal, such notice is deemed to be served. It has further been urged that the finding recorded by the courts below that the tenant/respondents are entitled to protection of Section 20 (4) of U.P. Act No. XIII of 1972 is also against the evidence on record.

I have considered the arguments advanced by the learned counsel for the petitioner and perused the record.

In so far as service of notice is concerned the trial court had recorded a finding that service of notice cannot be deemed to be sufficient. However, appellate court has upset the said finding and held that the notice was deemed to be served on respondent nos. 3 to 5.

In so far as benefit of Section 20 (4) of the Act No. XIII of 1972 is concerned both the courts below have categorically held that the arrears of rent etc were deposited by respondent /tenant on 29.9.1988 before the date fixed for hearing of the case. Both the courts below have also held that the monthly rent has also been deposited by the tenant.

In so far as ground of sub-tenancy is concerned, again a concurrent finding has been recorded by both the court below that landlord /petitioner has failed to prove that the shop in dispute has been sublet to respondent no. 6 and 7.

A perusal of judgment goes to show that concurrent findings of fact recorded by the court below are based on proper appraisal of evidence. It is well settled that such findings are not open to interfere by this court while exercising its jurisdiction conferred under Article 226 of the Constitution of India.

In view of the aforesaid, the writ petition being concluded by findings of fact must fail and accordingly stands dismissed. However the tenant /respondents are only paying a sum of Rs. 10/ per month as rent which is too meagre.

Considering the facts and circumstances of the case, the rent is enhanced to Rs. 1000/ per month payable with effect from June 2006.

Subject to aforesaid the writ petition stands dismissed.

16.5.2006.g.

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