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Arvind Kumar v. A.D.J. And Others - WRIT - A No. 9573 of 1986 [2006] RD-AH 2317 (31 January 2006)


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(Court No. 51)

Civil Misc. Writ Petition No. 9573 of 1986

Arvind Kumar Versus III Additional District Judge, Bijnor and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

This is landlord's writ petition arising out of suit for eviction filed by him against respondent No.3 and 4 mainly on the ground of subletting. Suit was registered as SCC Suit No. 29 of 1980 on the file of JSCC/ Munsif Bijnor. In the suit it was alleged that the shop in dispute was let out in the year 1972 to Pradeep Kumar Gupta defendant No.1/ respondent No.3 and he had sub-let the same in the year 1982 to defendant No.2/ respondent No.4 Jagdish Prasad Sharma. It was further stated that tenancy in favour of defendant No.1 was created through a rent deed of one year however the said rent deed was not registered. At that time respondent No.3 was aged about 13 or 14 years and his father was also alive still rent deed was executed on behalf of minor respondent No.3 by one of her aunts as guardian. Rent of the shop in dispute is Rs. 65/- per month.

In the suit respondent No.3 did not appear. Respondent No. 4 contested the proceedings and asserted that he was the tenant in his independent right since 1975. Landlord filed some counter foils of the rent receipts showing the tenant of the shop to be Pradeep Kumar Gupta. However in those counter foils rent was actually paid / tendered by different persons. For most of the time rent was shown to be paid/ tendered by Jagdish Prasad Sharma respondent No.4. Taking all these things into consideration, JSCC held that respondent No.4 was the tenant. Accordingly suit for eviction was dismissed through judgment and decree dated 11.5.1984. Suit for recovery of arrears of rent was decreed and it was directed that the amount deposited by respondent No.4 under section 30 or section 20(4) of the Act should be adjusted. Against the said judgment and decree petitioner filed Civil Revision No. 78 of 1984, which was heard and dismissed on 20.12.1985 by III Additional District Judge, Bijnor. This writ petition has been filed by the landlord against the judgment and order of the revisional court as well as judgment and decree of the trial court.

The revisional court unnecessarily entered into the controversy as to whether defendant No.2 had been able to prove through direct evidence creation of tenancy in his favour. Revisional court firstly disbelieved the version of respondent No.4 in this regard and then held that " however due to continuous payment of rent of the disputed shop by the defendant No.2 to the plaintiff vide rent receipts on record it may be inferred that the landlord has consented in the possession of the defendant No.2." Whether tenancy was directly created in between petitioner and respondent No.4 or afterwards petitioner accepted respondent No.4 as tenant will not make much difference.

After hearing learned counsel for the parties I do not find any error in the findings of the subletting recorded by the courts below. Courts below particularly the trial court meticulously considered this aspect and arrived at the finding that it was not respondent No.3 but respondent No.4 who was the tenant.

However by way of abundant precaution, it is clarified that in spite of slightly confusing finding of the revisional court, respondent No.4 shall be treated to be the tenant.

I do not find any error in the impugned findings, which are basically findings of fact.

Writ petition is therefore dismissed.

I have held in Khursheeda Vs. A.D.J 2004(2) ARC 64 and H.M.Kichlu Vs. A.D.J 2004(2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.

Property in dispute is a shop situate in Bijnor. Rent of Rs.65/- per month is highly inadequate.

Accordingly, it is directed that with effect from February 2006 onwards, tenant respondent No.4 shall pay rent to the landlord petitioner at the rate of Rs. 500/- per month.




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