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SMT. OMWATI & OTHERS versus D.J. HATHRAS & ANOTHER

High Court of Judicature at Allahabad

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Smt. Omwati & Others v. D.J. Hathras & Another - WRIT - A No. 54689 of 2002 [2006] RD-AH 14233 (23 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

 Court No.7

       Civil Misc. Writ Petition No. 54689 of 2002

Smt. Omwati  and others           versus      District Judge, Hathras and

                                                                   another.

                                             

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition has been filed with a prayer for quashing the impugned judgment and order dated 28.10.2002 passed by the District Judge, Hathras in J.S.C.C. Revision No. 19 of 2001, Jabbar Beg Versus Smt. Omwati and others.

 Brief facts of the case are that the petitioners filed a suit against respondent no.2   for arrears of rent due from 11.11.1987 to 18.1.2000 at the rate of Rs.300/- per month in addition to house tax and water tax as well as eviction from the shop in dispute. Written statement was filed by respondent no.2 controverting the plaint allegations. He denied rent @ of Rs.300/- per month including the house tax and water tax. It was stated that respondent no.2-tenant deposited Rs.14, 712/- as rent under Section 20(4) of Act No. 13 of 1972.

The Judge Small Causes Court, Hathras decreed the suit with cost vide order dated 26.4.2001 holding that the rent was due to the tenant from 18.11.97 to 17.5.2000.

Aggrieved by the aforesaid order dated 26.4.2001 of the trial Court, respondent no.2 filed a revision before the District Judge, Hathras which was allowed vide order dated 20.11.2002, hence this writ petition.

The counsel for the petitioners submits that the revisional Court has no jurisdiction to interfere with the findings of fact recorded by the Judge Small Causes Court and has committed an error apparent on the face of record in holding that the amount deposited by the tenant is correct but has erred in recording a finding that the entire rent, counsel fee plus expenses etc. have not been deposited as such respondent no.2 can not claim benefit under Section 20(4) of U.P. Act No. 13 of 1972.

          It appears from the judgment of the Revisional Court that there was admitted shortfall of Rs.24/- in deposit by the tenant which according to the landlord was short by Rs.850/- which was spent on sundry notices etc. to the tenant.

The counsel for the respondent no.2 submits that there is no illegality or infirmity in the impugned order of the Revisional Court. The bonafide need and comparative hardship are the findings of facts hence no interference is required by this Court unless any illegality or perversity could be shown.

In the instant case shortfall is only of Rs.24/-, which is due to un-explain details of expenses in sending the notice. The tenant claims that he had deposited Rs.415.50 in excess.

The parties had filed the calculation chart of expenses before the Revisional Court, which described the amount claimed by the petitioners in sending of notices etc. as highly excessive.

 In case of shortfall the rule of Maxim Minimis Non Curat Lex come into operation in the case of Dinesh Chandra Gupta Vs. Kashi Nath Seth, 1976 ALJ-124 in which it was held that the aforesaid rule can be applied to a case of shortfall. This view has been distinguished in Gopal Das Vs. Ist Addl. District Judge, 1982(1) ARC-28 and by a Division of this Court in Amar Nath Agarwal Vs. Ist Addl. District Judge, 1982(1) ARC-734.

In Gopal Das ( supra) it was found that the tenant claimed immunity form ejectment on the ground that he had deposited on the first date of hearing the entire amount contemplated by Section 20(4) of the Act. The Judge, Small Cause Court, held that there was deficiency of Rs. 95/- but he was given the benefit of the provision of the section on the ground of substantial compliance. In revision, the order and judgment of the Judge Small Cause Court was set aside and it was held that the full amount was admittedly not deposited and the benefit of the section was not available to the tenant. However, the High Court has confirmed the view taken by the revisional Court and held that the default was in the sum of Rs.95/- as such default could not obviously be ignored by applying the rule contained in the maxim de minimis non curat lex.

The Division Bench thereafter while interpreting the rule of be de minimis non curat lex drew a distinction between a case of substantial compliance and the rule of de minimis. The Court has held that-

          " Although we have expressed our agreement with the view taken by Prem Prakash,J., in  Dinesh Chandra Gupta Vs. Kashi Nath Seth that the rule of de minimis applies to a case of deposit under section 39 for an insignificant shortage in the deposit, the tenant will not be deprived of the benefit of the same. But we are unable to subscribe to the opinion expressed by him in the aforesaid case that where a tenant has made the deposit in substantial compliance with section 39, he will become entitled to get its benefit. We have found above that the question of substantial compliance is completely ruled out, that no tenant can get the benefit of Section 39 on that basis. It is only in a case of very small and trifling matter that the principle of de minimis can be brought into aid. As in our opinion such a small error would have no consequence at all, the same can not be regarded as false or misleading in a material respect, hence a tenant is required to prove his bonafide by bringing evidence of the reason e.g. clerical mistake in calculation etc. for getting the advantage of this rule."

             Thus, if there is some short fall in the deposit under Section 20(4) due to calculation mistake or otherwise a bonafide mistake, the tenant should not be deprived of benefit of Section 20(4) of the Act. In my opinion, in this case the petitioners are entitled to the benefit of Section 20(4) of the Act, as the rule of Maxim Minimis Non Curat Lex will apply in the case of the petitioners.

Finding of bona fide need and comparative hardship being finding of fact, reference in this regard may be made to the decision rendered by Hon'ble the Apex Court in E.Parasuraman (deceased by L.Rs) vs. Doraiswamy- A.I.R2006 S.C-376 = 2006(8) S.C.C-658 wherein it has been held by Hon'ble Supreme Court that High Court should not interfere in any finding of fact under Article 226 of the Constitution unless patent illegality or perversity is established.  

From a perusal of order passed by the Revisional Court, it is apparent that after considering the bona fide need as well as comparative hardship of the landlord and the petitioners, it has given a finding of fact that the need of the landlord is bona fide and genuine.

         No illegality or perversity has been shown by the petitioners in the orders of the Court below.

For the reasons stated above, no case for interference is made out. There being no illegality or infirmity in the impugned order of the Revisional Court, the writ petition is dismissed. No order as to costs.

Dated 23.8.2006

CPP/-


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