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PRAKASH CHANDRA versus THE DISTT. JUDGE BANDA & OTHERS

High Court of Judicature at Allahabad

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Prakash Chandra v. The Distt. Judge Banda & Others - WRIT - A No. 7542 of 1998 [2006] RD-AH 13913 (21 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.25

Civil Misc. Writ Petition No.7542 of 1998

Prakash Chandra

Vs.

The District Judge, Banda and others

Hon. Sanjay Misra, J.

Heard Sri Rakesh Kumar, learned counsel for the petitioner and Sri S.K.Srivastava, learned counsel appearing on behalf of the respondents tenants.

The petitioner had filed S.C.C. Suit No.13 of 1993 for eviction of the respondent tenant on the ground of arrears of rent. The trial court found that the rent of the premises was Rs.100/- per month and respondent had defaulted in payment of the same. Consequently, it decreed the suit for arrears of rent and eviction.  The tenant filed S.C.C. Revision No.7 of 1996 wherein the revisional court concurred with the finding of trial court with respect to validity of notice. On the question of rate of rent the revisional court had set aside the finding of the trial court and held that the rate of rent payable by the respondent tenant was Rs.35/- per month. Having recorded the aforesaid finding it was held that since the respondent tenant had deposited the rent at the rate of Rs.35/- per month hence he was not in arrears of rent and consequently proceeded to allow the revision and set aside the order of J.S.C.C.

Learned counsel for the petitioner has contended that the finding recorded  by the trial court on issue no.2  to the effect that rent of accommodation was Rs.100/-per month is  based on any cogent evidence in as much as the trial court has considered that a portion of the building was under the tenancy of brother of the respondent no.2 namely  Prem Chandra and after the death of Prem Chandra his son

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Mukesh Kumar is living in the said tenancy on the rent of Rs.35/- per month. It is the case of the petitioner that rent of the accommodation at Rs.35/- per month was with respect to Prem Chandra and to that effect the relevant record was produced.  The trial court while considering the aforesaid record  has recorded a finding   that there are four rooms  in the  occupation of the respondent no.2 which is situated in the heart of the  city and hence  rent of the same would  be  Rs.100/- per month. Learned counsel for the petitioner has submitted that the aforesaid finding has been illegally set aside by the revisional court   on the basis that in the extract of tax assessment for the year 1986 to 1991 the rent payable by the  respondent tenant has been shown tobe Rs.100/-per month. He submits that the  revisional court while discussing the extract of tax assessment has illegally held that the entry is fictitious. The relevant portion is quoted hereunder:-

" It appears that the plaintiff when got mutated his name on the basis of the will, which is alleged to have been executed by Smt. Mewa Bai in his favour, he got mentioned Rs.100/- as rent and this entry of rent of Rs.100/- appears to be fictitious and to have been got made  only for the purpose of this case."

It has been submitted by learned counsel for the petitioner that the aforesaid reasoning was the  only basis  for the revisional court to  set aside the  finding of the trial court.  He submit that such a finding could not have been recorded  by the  revisional court. He further submits that in case  the revisional court was of the view that the  trial court had  failed to consider the evidence then  the only course open to it was to remand the matter for re-decision.

Learned counsel for the respondent has argued that the finding of the trial court on the quantum of monthly rent was not based on any evidence and was merely based on conjectures and surmises. The revisional court has considered the statement of witnesses where it was clearly stated that the rent of the portion occupied by Prem

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Chandra was Rs.35/- per month. He submits that the finding  of the trial court was illegal and the decree for eviction has been rightly set aside.

Upon considering the respective submissions and after perusing the records it appears that the revisional court has based its conclusion on the presumption that the tax assessment entry was fictitious and got made only for the purpose of the case.  There appears to be no material on record to establish such a conclusion . The revisional court was exercising its jurisdiction under section Small Causes Court Act and not as an appellate court. The findings of the trial court could be set aside only if the same were not based on any evidence or upon mis-appreciation of evidence on record. The genuineness  or otherwise of an entry in the tax assessment extract could be determined only if evidence was available. In the absence of any evidence such a finding could not be recorded by the revisional court. It could remand the issue for being decided on the basis of evidence which the parties could lead.  The  submission of learned counsel for the petitioner therefore  has substance.  

For the reasons  stated above, the impugned judgment and order dated 28.11.1997 passed in S.C.C. Revision No.7 of 1996 is quashed. The matter is remanded back to the trial court to decide the question of the amount of  monthly rent  payable by the respondent tenant in accordance with law.

The writ petition is accordingly allowed. No order is passed as to costs. As the matter is very old, the trial court shall decide the same expeditiously preferably within a period of six months from the date a certified copy of this order is produced before it, after giving full opportunity of hearing to the parties.

21.8.06

Gc.


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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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