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RAM KHELAWAN versus A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Ram Khelawan v. A.D.J. & Others - WRIT - A No. 30586 of 1990 [2005] RD-AH 2422 (6 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 29398 of 1990

Chhotey Lal       Vs.    Addl. District Judge, Fatehpur & others

                                         AND

Civil Misc. Writ Petition No.30586 of 1990

Ram Khelawan    Vs.  Addl.District Judge, Fatehpur & others

........

Hon'ble Vikram Nath J.

In both the writ petitions, the landlord is same and has been arrayed as respondent no.3. Similar notices were given by the landlord and the courts below have proceeded on similar grounds as the issues raised by the tenants were similar. In view of the fact that similar question of law and facts are involved in both the petitions, they are being heard and decided together.

Both the writ petitions are directed against the judgment and order dated 24.8.1990 passed by the revisional authority (Addl. District Judge, Fatehpur) exercising powers under section 25 of the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as 1887 Act ) whereby the revision of the landlord was allowed and the suit for arrears of rent and ejectment was decreed.

M/s Jwala Prasad Amar Nath (respondent 3) a partnership firm was the owner and landlord of the shops in dispute which was let out to the petitioners (one shop each). It is admitted to the parties that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) does not apply to the premises in dispute. The landlord after terminating the tenancy under section 106 of the Transfer of Property Act filed the suit for recovery of arrears of rent and damages and for  ejectment of the tenant respondent. The notice under section 106 of Transfer of Property Act was given through Sri R.P. Misra Advocate upon instruction from Jagdish Prasad partner of the firm on 13.11.1997 and was served upon the tenants on 14.11.1997. These facts are not disputed. The tenant replied to the notice and denied that Jagdish Prasad was partner of the firm. Thereafter the land lord filed the suit for the ejectment and recovery of arrears of rent, which was registered as JSCC Suit No. 9 of 1998 against Chhotey Lal and JSCC Suit No. 10 of 1998 against Ram Khelawan. Both the tenants contested the suit and the objection raised was that the tenancy had not been validly terminated and therefore, the suit must fail. The trial court after taking evidence of the parties and upon consideration thereof came to the conclusion that Sri R.P. Misra Advocate had no valid authority to give the notice terminating the tenancy as the person on whose instruction (Jagdish Prasad) he had given the notice was not partner of the firm and had no authority to give instruction. The trial court further found that there was no arrears of rent also and on these two grounds dismissed the suit.

The landlord filed revision under section 25 of the 1887 Act, which was registered as Revision Nos.41 of 1989, and 42 of 1989. The revisional court has decided both the revisions separately vide judgment dated 24.08.1990. The judgment in effect is the same. The revisional Court allowed both the revisions holding that the notice had been validly given and duly served upon the tenant and accordingly decreed the suit. It is against this judgment dated 24.8.1990 the present writ petitions have been filed by the tenant.

I have heard Sri N.D. Keshri learned counsel for the petitioner in both the writ petitions. Despite revision of list no one has appeared for the respondent landlord.

The counsel for the petitioner has attacked the revisional judgment on three grounds. Firstly that the contents of the notice was not proved as required under law and therefore, the suits could not have been decreed. Reliance has been placed upon AIR 1971 SC page 1949 Vishwanath Rai Vs. Sachchinanand Singh and 1961 ALJ page 353. The second contention is that the reply given to the notice has not been considered by the revisional Court thereby vitiating the impugned judgment. The third contention is that while exercising powers under section 25 of 1887 Act the revisional Court exceeded its jurisdiction in re-appreciating the evidence and arriving at a conclusion different from that of the trial court.

Considering the first contention it may be noted that the law is well settled that even if the revisional Court has exercised jurisdiction not vested in it but has arrived at a correct discretion, this Court will not interfere. The judgment of the revisional Court clearly record the findings that the notice given by lawyer of the firm was upon instruction from Sri Jagdish Prasad who is admitted to be the partner of the landlord firm and the notice having been proved to have been served upon the tenant there will be presumption under section 114 of the Indian Evidence Act. The sending of the notice and the receipt of the notice are proved by the admission by the defendant himself and therefore, the question of proving by evidence of the plaintiff would be necessary only upon denial of service of the notice. The tenant in his reply to the notice and also in his statement has admitted the receiving  of the notice, therefore, the presumption under section 114 of the Indian Evidence Act has to be inferred. The only ground taken in reply to the notice was that Jagdish Prasad was not partner of the firm and therefore, the notice was invalid also has been found to be without basis as in his written statement the tenant has admitted the fact that  Jagdish Prasad was the partner of the landlord firm. The finding recorded by the revisional Court are based upon the evidence on record and which could not have been interpreted in any other way. The findings recorded by the revisional Court was thus based on clear admission of the tenant. In view of the above discussions the first and second question raised by the petitioner cannot be sustained.

Coming to the third question with regard to scope of section 25, it is well settled that the evidence can always be looked into by the revisional Court under section 25 of 1887 Act and where ever there can be no other interpretation of the evidence the revisional Court could record its finding on the same. The Division Bench of this Court in the case of Luxmi Kishore and  others Vs. Har Prasad Shukla 1979 Allahabad Civil Journal page 473 has already propounded the law with regard to scope of section 25 and the said Division Bench has been consistently followed and still holds to be a good law. The exercise of revisional power in the present case was well within the scope of section 25 of the 1887 Act and the revisional Court has rightly allowed the revision and decreed the suit.

The authorities relied upon by the petitioner are not applicable and do not help the petitioner in the facts of the present case. Both are clearly distinguishable.

In view of the discussions made above, I do not find any error much less an error of law apparent on the face of record so as to invoke the jurisdiction under Article 226 of Constitution.

The writ petitions being devoid of merit are accordingly dismissed.

Dt.6/9/2005

Hsc/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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