Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Revisional Court Should Hesitate To Compare The Signatures When Handwriting Expert Opinion Is Available Particularly When Trial Court Has Accepted It.
JUDGEMENT TITLE : Raja Ram Sharma Vs. District Judge And Others. On 23/02/2012 By Allahabad High Court
CASE NO : WRIT - A NO. 65231 OF 2006
CORAM : Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Judgment Reserved On 11.01.2012
Judgment Delivered On 23.02.2012
Court No.7

Civil Misc. Writ Petition No.65231 Of 2006
Raja Ram Sharma
Vs.
District Judge, Budaun & Ors.
~~~~~~~

Hon'ble Dilip Gupta, J.

The Plaintiff Of SCC Suit No.31 Of 1990 That Had Been Filed For Ejectment Of The Defendants And For Recovery Of Arrears Of Rent Has Filed This Petition For Quashing The Judgment And Order Dated 16th October, 2006 By Which The Revision Filed By Defendant No.2-Dev Pal (respondent No.3) For Setting Aside The Judgment And Order Dated 6th September, 2000 Of The Judge, Court Of Small Causes Has Been Partly Allowed. The Decree For Recovery Of Arrears Of Rent W.e.f. 12th January, 1989 Has Been Maintained But The Suit For Ejectment Of The Defendants From The Shop Has Been Dismissed.
SCC Suit No.31 Of 1990 Had Been Filed By The Plaintiff-petitioner For Ejectment Of Defendant No.1-Dori Lal (since Deceased) And Defendant No.2-Dev Pal From The Shop And For Recovery Of Arrears Of Rent With The Allegation That The Plaintiff Was The Owner And The Landlord Of The Shop; That Defendant No.1-Dori Lal Was The Tenant Of The Shop On Monthly Rent Of Rs.100/-; That Defendant No.1 Did Not Pay The Rent Of The Shop W.e.f. 12th January, 1989; That Defendant No.1, Without The Consent Of The Landlord, Had Put Defendant No.2-Dev Pal, Who Is Not A Member Of Family Of Defendant No.1, In Possession Of The Shop And Sublet It To Him On A Monthly Rent Of Rs.250/-; That The Defendants, Without The Permission Of The Landlord In Writing, Made Structural Alterations In The Building On 13th August, 1990; That Defendant No.1 Had Knowledge, From The Beginning, That Previously Pandit Anant Ram Who Was The Owner Of The Building Had Executed A Will In Favour Of Surendra Kumar, Brother Of The Plaintiff, Who By A Registered Sale Deed Dated 11th March, 1987 Sold The Property To The Plaintiff Whereafter The Plaintiff Became The Owner And Landlord Of The Premises; That The Defendants Were, Therefore, Also Liable For Ejectment As Defendant No.1 In Original Suit No.232 Of 1990 Instituted By Him Against The Present Plaintiff For Injunction Denied The Title Of The Landlord And Asserted That The Present Plaintiff Was The Co-owner Of The Property With His Brothers; That The Notice Dated 17th September, 1990 For Termination Of The Tenancy Was Served On Defendant No.1 On 18th September, 1990 But Defendant No.2 Refused To Accept The Notice; That The Tenancy Stood Terminated On Expiry Of The Period Mentioned In The Notice But The Defendants Did Not Pay The Arrears Of Rent And Nor Did They Handover The Possession Of The Shop To The Plaintiff.
Defendant No.1-Dori Lal Died Before He Could File The Written Statement. He Was Substituted By His Adopted Son Mohit Kumar (son Of Dev Pal) As Defendant No.1/1 And A Written Statement Was Filed On His Behalf Through His Mother But Defendant No.2 Did Not File Any Written Statement.
In The Written Statement Filed On Behalf Of Defendant No.1/1, It Was Asserted That The Shop Was Let Out To Dori Lal About 30 Years Back On Monthly Rent Of Rs.37.50; That Before His Death, Dori Lal Had Broken His Leg And Was Unable To Move As A Result Of Which Defendant No.2 Dev Pal Started Looking After The Business On Behalf Of Dori Lal And Mohit Kumar And Even Prior To The Said Fracture, Dev Pal Was Assisting Dori Lal In His Business; That In Fact The Plaintiff And His Brothers Had Seen Dev Pal In The Shop Assisting Dori Lal In His Business Since The Last 20 Years And Had Not Raised Any Objection; That It Was Not Correct That Defendant No.1 Had Sublet The Shop To Defendant No.2 At The Rate Of Rs.250/- Per Month; That Since The Plaintiff Wanted To Demolish The Shop, Deceased Dori Lal Had Filed Original Suit No.232 Of 1990 For Injunction Which Is Pending; That No Structural Alterations Had Been Made In The Shop; That The Deceased Dori Lal Had Deposited The Rent Under Section 30(2) Of The U.P. Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972 (hereinafter Referred To As The 'Act'); That After The Death Of Pandit Ganga Dhar, The Plaintiff Was Collecting The Rent Since His Brothers Were Residing Outside But At Times Surendra Kumar, Brother Of The Plaintiff, Also Received Rent Which Was Rs.37.50 Per Month; That The Deceased Dori Lal Had Paid Rent Upto 24th July, 1990 To Surendra Kumar And Receipts Were Issued By Him; That The Plaintiff Or Surendra Kumar Never Informed The Deceased Dori Lal Or The Answering Defendant That The Plaintiff Was The Sole Owner/landlord Of The Shop; That The Arrears Of Rent Had Been Deposited On The First Date Of Hearing Under Section 20(4) Of The Act And, Therefore, The Decree For Ejectment Could Not Be Passed; That The Alleged Notice Dated 17th September, 1990 Is Incorrect And Illegal And Did Not Terminate The Tenancy And, Therefore, The Suit Was Not Maintainable; That The Rate Of Rent Was Rs.37.50 And, Therefore, The Question Of Rent Being Rs.100/- Per Month Does Not Arise And Only To Harass The Defendant It Was Mentioned In The Plaint That The Rent Was Rs.100/- Per Month.
The Judge, Court Of Small Causes Framed Following Points For Consideration:-
1. Whether There Was Any Relationship Of Landlord And Tenant Between The Plaintiff And The Deceased Dori Lal ?
2. Whether Defendant No.1/1 Mohit Kumar Is The Adopted Son And Heir Of Deceased Dori Lal ?
3. Whether The Plaintiff Had Any Cause Of Action Against Defendant No.1/1?
4. Whether The Deceased Defendant No.1-Dori Lal Had Sublet The Shop To Defendant No.2-Dev Pal ?
5. Whether The Defendants Had Made Structural Alterations In The Building, Without The Permission In Writing Of The Landlord ?
6. Whether The Defendants Were Tenants At The Rate Of Rs.37.50 Or Rs.100/- Per Month ?
7. Whether The Defendants Committed Default In Payment Of Rent ?
8. Whether The Defendant No.1/1 Was Entitled To The Benefit Of Section 20(4) Of The Act ?
9. Whether The Tenancy Of The Deceased Dori Lal Stood Terminated By The Notice Given By The Plaintiff ?

The First Point Was Decided By The Court Of Small Causes In Favour Of The Plaintiff And It Was Held That Relationship Of Landlord And Tenant Existed Between The Plaintiff And The Deceased Dori Lal. In This Connection, It Was Found That The Registered Sale Deed Dated 12th March, 1987 [Exhibit-1] Executed By Surendra Kumar In Favour Of The Plaintiff Had Been Proved And The Plaintiff Became The Owner Of The Shop. The Plaintiff Had Also Filed Counter Foils Of The Rent Receipts Issued By The Plaintiff To The Deceased Dori Lal Which Counter Foils Were Signed By Dori Lal And The Plaintiff Had Also Stated On Oath That Dori Lal Had Signed The Counter Foils Of The Rent Receipts. This Fact Was Also Stated By PW-3 Ram Prakash Sharma, Brother-in-law Of The Deceased Dori Lal And He Also Stated That Dori Lal Had Signed The Counter Foils Of The Rent Receipts Since He Recognised The Signatures Of Dori Lal. DW-2-Asha Devi Denied The Signatures Of Dori Lal On The Counter Foils Of The Rent Receipts But She Did Not State That She Had Seen Dori Lal Write Or That She Recognised The Signatures Of Dori Lal. The Parties Had Also Filed The Reports Of Handwriting Experts Who Had Also Appeared As Witnesses. The Plaintiff Produced The Handwriting Expert Vishan Kumar Sharma As PW-4 And The Defendants Produced The Handwriting Expert Anup Sinha As DW-1. Sri Anup Sinha, In His Statement, Stated That He Had Not Compared The Admitted Signatures With The Disputed Signatures With A Scale Though He Admitted That The Alignment Was The Same But He Did Not Mention This Fact In His Report. The Admitted Signatures A-2 To A-6 Were Of The Year 1974 Whereas The Disputed Signatures Were Of The Years 1987 To 1989. The Handwriting Expert Vishan Kumar Sharma Appeared As A Witness And Proved His Report 49-C Which Mentions That The Signatures On The Counter Foils Of The Rent Receipts Are Of Dori Lal. In His Report He Mentioned That The Distance Between The Words In The Disputed Signatures And The Admitted Signatures Was Not Same Because Of The Tremors Due To Advanced Age But The Report 55-C Submitted By Anup Sinha Only Mentioned The Distance Between The Words. The Expert Report Filed By The Plaintiff (Paper No.49-C) Gave Specific Details While The Expert Report (Paper No.55-C) Filed By The Defendant Did Not Give Specific Details. The Expert Report 49-C Submitted By The Plaintiff Is More Reliable And Should Be Accepted. The Counter Foils Of The Rent Receipts, Therefore, Contain The Signatures Of Dori Lal. There Is As Such No Doubt That After The Sale Deed Was Executed, Dori Lal Started Paying Rent To The Plaintiff Instead Of Surendra Kumar And The Plaintiff Became The Landlord So That The Relationship Of Landlord And Tenant Existed Between The Plaintiff And The Defendants.
The Contention Of The Plaintiff That The Defendants Were Also Liable For Ejectment For The Reason That The Title Of The Landlord Was Denied By Dori Lal In Original Suit No.232 Of 1990 Instituted By Dori Lal Was Not Accepted For The Reason That In Original Suit No.232 Of 1990 Dori Lal Had Not Denied The Title Of The Landlord But Had Only Stated That Dori Lal Was The Co-owner With His Brother Surendra Kumar. The Contention Of The Defendants That The Suit Was Required To Be Presented Before The Appropriate Court As Question Of Title Of Immovable Property Was Involved, Was Also Rejected.
While Deciding Point Nos.2 And 3, The Court Of Small Causes Held That Mohit Kumar Was The Adopted Son Of The Deceased Dori Lal And The Plaintiff Had Cause Of Action Against Defendant No.1/1. Point No.4 Was Also Decided In Favour Of The Plaintiff And It Was Held That Defendant No.2 Had Sublet The Shop To Defendant No.2. Point No.5 Was Also Decided In Favour Of The Plaintiff And It Was Held That The Defendants Had Caused Structural Alteration In The Building Which Had Diminished Its Value And Utility. While Deciding Point No.6, The Court Held That The Deceased Dori Lal Was Paying Rent To The Plaintiff-landlord At The Rate Of Rs.100/- Per Month W.e.f. July, 1988 And Prior To This At The Rate Of Rs.37.50 Per Month. For Coming To This Conclusion Reliance Was Placed On The Counter Foils Of The Rent Receipts Which Had Been Discussed By The Court In Detail While Deciding Point No.1. Point No.7 Was Also Decided In Favour Of The Plaintiff And It Was Held That The Defendants Had Committed Default In Payment Of Rent From January, 1989. Point No.8 Was Also Decided In Favour Of The Plaintiff And It Was Held That Defendant No.1/1 Mohit Kumar Had Not Deposited The Amount Required To Be Deposited Under Section 20(4) Of The Act On The First Date Of Hearing. Point No.9 Was Also Decided In Favour Of The Plaintiff And It Was Held That The Tenancy Of Defendant No.1 Stood Terminated On The Expiry Of The Period Stated In The Notice Dated 17th September, 1990 Sent By The Plaintiff To The Defendant Which Notice Had Been Served On The Defendants. In View Of The Aforesaid Findings, The Suit For Ejectment And For Recovery Of Arrears Of Rent Was Decreed.
Dev Pal-defendant No.2 Alone Filed Revision No.50 Of 2000 For Setting Aside The Aforesaid Judgment And Decree Of The Judge, Court Of Small Causes And By The Judgment And Order Dated 11th April, 2001, The Revision Was Allowed And The Judgment And Decree Of The Judge, Court Of Small Causes Was Set Aside.
The Petitioner Filed Writ Petition No.16513 Of 2001 For Setting Aside This Judgment Which Was Allowed By The Judgment And Order Dated 2nd May, 2006 And The Matter Was Remitted To The Revisional Court To Decide The Same In Accordance With Law Afresh Within Six Months As It Was Found That The Revisional Court Had Exceeded Its Jurisdiction By Reassessing And Re-appreciating The Entire Oral And Documentary Evidence And Recording Its Own Finding After Upsetting The Finding Of The Trial Court. The Observations And Directions Of The Court Are As Follows:-
"From Perusal Of The Judgment Of Revisional Court It Is Clear That It Has Reappreciated And Appraised Entire Oral And Documentary Evidence And Recorded Its Own Finding After Upsetting The Finding Of The Trial Court.
In View Of Settled Legal Position It Is Clear That Revisional Court In Appreciating The Entire Evidence And Recording Its Own Finding Of Fact Has Exceeded Its Own Jurisdiction.
Accordingly, The Impugned Judgment Cannot Be Sustained And Is Hereby Quashed. The Writ Petition Stands Allowed.
The Case Is Remanded Back To The Revisional Court To Decide The Same In Accordance With Law Afresh Within A Period Of Six Months From The Date Of Production Of Certified Copy Of This Order Before Him."

On Remand, The Revisional Court Partly Allowed The Revision Filed By Defendant No.2-Dev Pal By The Judgment And Order Dated 16th October, 2006. The Decree For Ejectment Was Set Aside But The Decree For Recovery Of Arrears Of Rent W.e.f. 12th January, 1989 At The Rate Of Rs.37.50 Was Maintained.
The Reasons And Findings Given By The Revisional Court In The Impugned Judgment Are:-
1. The Finding Given By The Judge, Court Of Small Causes That Structural Alteration Had Been Made By The Tenant Which Had Diminished The Value And Utility Of The Building Needed To Be Set Aside As There Is No Averment In The Plaint That The Value And Utility Of The Building Had Been Diminished Because Of The Structural Alteration.
2. The Case Of The Plaintiff Was That The Shop In Question Had Been Sublet By The Tenant-defendant No.1 To Dev Pal-defendant No.2 Who Was Not A Member Of The Family But No Evidence Was Led By The Plaintiff To Establish That Defendant No.1 Had Sublet The Shop To Defendant No.2 And Nor Can The Presumption Contemplated In Section 12(2) Of The Act Be Drawn Since There Is No Averment In The Plaint That Defendant No.2 Was Admitted As A Partner In The Business. The Judge, Court Of Small Causes Committed An Illegality In Shifting The Burden On The Defendants Since The Presumption About Sub-tenancy Was Drawn For The Reason That Defendant No.2 Did Not Appear As A Witness. This Apart, The Court Of Small Causes Should Have Appreciated That The Presence Of Defendant No.2 In The Shop Was From The Time When Defendant No.1 Became Incapable Of Sitting In The Shop Due To Fracture In His Leg.
3. The Plaintiff Had Claimed That Defendant Was In Arrears Of Rent. According To The Plaintiff He Informed Defendant No.1 About The Sale Deed Executed In His Favour By His Brother Surendra Kumar And So Defendant No.1 Started Paying Rent To Him At The Rate Of Rs.37.50 But The Rent Was Enhanced To Rs.100/- Per Month From July, 1988 And In Support Thereof The Plaintiff Examined Himself And Also Produced The Counter Foils Of The Rent Receipts Which Bore The Signatures Of Defendant No.1-Dori Lal. The Signatures Of Dori Lal On The Counter Foils Of The Rent Receipts Were Denied By Defendant No.1/1 And Both The Parties Got The Disputed Signatures Examined By The Handwriting Experts. After Scrutinising The Admitted Signatures And The Disputed Signatures Of Dori Lal, It Is Seen From The Naked Eye That There Is A Difference In The Alphabet (Ra) In The Admitted And The Disputed Signatures. This Apart, The Plaintiff Got The Admitted Signatures Examined From The Admitted Signatures Made In 1974 Whereas The Admitted Signatures Of Dori Lal Of The Year 1990 Were Available In Original Suit No.232 Of 1990. Thus, The Irresistible Conclusion Is That The Finding Of The Court Of Small Causes With Respect To The Signatures Of Dori Lal On The Counter Foils Of The Rent Receipts Book (Paper No.34-C) Regarding Payment Of Rent To The Plaintiff And Enhancement Of The Rent With Effect From July, 1988 Is Not Correct. The Finding Of The Court Of Small Causes Regarding Point Nos.1 And 6 Is, Therefore, Set Aside.
4. The Notice Sent By The Plaintiff For Terminating The Tenancy Of Defendant No.1 Did Not Have The Effect Of Terminating The Tenancy For The Reason That If Both, The Earlier Landlord And The Subsequent Purchaser, Had Given Notice To The Defendant That In Future Rent Should Be Paid To The Purchaser, Then Purchaser Becomes The Landlord But As The Purchaser Alone Had Informed The Tenant That He Had Become The Landlord, The Attornment Is Not Immediate As The Tenant Will Take Some Time To Make Inquiries About The Sale Deed. This Apart, The Rate Of Rent Mentioned In The Notice Is Incorrect And The Other Grounds For Ejectment Are Also Not Correct.
5. The Court Has, Therefore, To Fall Back To The Position Existing Prior To The Termination Of The Tenancy By The Notice And The Institution Of The Suit When The Plaintiff And His Brother Were The Co-owners And The Defendant Was The Tenant At The Rate Of Rs.37.50.
6. The Case Of Defendants That They Have Paid Rent To Surendra Kumar From 12th January, 1989 Is Not Established Since The Rent Receipts Given By Surendra Kumar Have Not Been Proved. As Such, The Defendants Are Liable To Pay Arrears Of Rent To The Plaintiff At The Rate Of Rs.37.50 W.e.f. 12th January, 1989. This, However, Will Not Result In Ejectment Of The Defendants Since It Has Been Found That The Notice Did Not Have The Effect Of Determining The Tenancy.
7. The Challenge To The Adoption Deed Is Immaterial Because Defendant No.2-Dev Pal Is The Heir Of The Deceased Defendant No.1.
8. Defendant No.1/1 Claims To Have Deposited The Entire Rent And Costs To Get The Benefit Of Section 20(4) Of The Act But As The Notice Terminating The Tenancy Of Defendant No.1 Is Not Valid, No Ejectment Can Be Ordered On Its Basis And So The Question Of Considering Whether The Defendant Is Entitled To The Benefit Of Section 20(4) Of The Act Does Not Arise.

Learned Counsel For The Petitioner Submitted That The Revisional Court Exceeded Its Jurisdiction In Recording A Finding That The Counter Foils Of The Rent Receipts (34-C) Did Not Contain The Signatures Of The Tenant-Dori Lal. It Is His Submission That On The Basis Of The Statement Of PW-3-Ram Prakash And The Report And The Statement Of The Handwriting Expert Vishan Kumar Sharma, The Court Of Small Causes Had Recorded A Categorical Finding Of Fact That The Counter Foils Of The Rent Receipts Bore The Signatures Of The Tenant Dori Lal But The Revisional Court Merely By Examining The Disputed And The Admitted Signatures Observed That The Counter Foils Of The Rent Receipts Did Not Contain The Signatures Of Dori Lal. It Is His Submission That Though The Court Can Compare The Disputed Signatures With The Admitted Signatures But Such Comparison By The Court Has Always Been Considered To Be Hazardous And Risky Particularly In A Case Where The Reports Of Handwriting Experts Have Been Filed And The Experts Have Been Examined. It Is His Submission That The Revisional Court Has Not Even Discussed As To Why The Evidence Of PW-3 Or The Report Of The Handwriting Expert Produced By The Plaintiff Should Be Discarded. He, Therefore, Submits That The Revisional Court Committed An Illegality In Reversing The Findings Of The Court Of Small Causes On Point Nos.1 And 6 Namely, Whether There Was Any Relationship Of Landlord And Tenant Between The Plaintiff And The Deceased Dori Lal And Whether The Defendants Were The Tenants At The Rate Of Rs.37.50 Or Rs.100/- Per Month.
Learned Counsel For The Petitioner Also Submitted That The Revisional Court Committed An Illegality In Holding That The Notice Sent By The Landlord To The Tenant For Termination Of The Tenancy Did Not Have The Effect Of Terminating The Tenancy. In This Connection He Pointed Out That The Said Notice Cannot Be Said To Be Illegal Merely Because Some Time Was Required To Be Given To The Tenant To Verify Whether The Plaintiff Was The Owner And Nor Can The Notice Be Said To Be Bad Because The Rate Of Rent Was Wrongly Mentioned In The Notice. He, Therefore, Submitted That The Judgment Of The Revisional Court Should Be Set Aside.
Learned Counsel For The Respondents, However, Submitted That The Findings Recorded By The Revisional Court Do Not Suffer From Any Illegality So As To Call For Any Interference By This Court Under Article 226 Of The Constitution. It Is His Submission That The Revisional Court Exercising Powers Under Section 25 Of The Provincial Small Cause Courts Act, 1887 (hereinafter Referred To As The ''1887 Act') Can Interfere With The Findings Of Fact In View Of The Decisions Of The Supreme Court In Jagdish Prasad Vs. Smt. Angoori Devi, 1984 (1) ARC 679 And Shyam Lal Vs. Rasool Ahmed (Dead) By LRs., (2002) 9 SCC 499. It Is Also His Submission That The Revisional Court Committed No Illegality In Itself Comparing The Disputed Signatures And The Admitted Signatures Of Dori Lal On The Counter Foils Of The Rent Receipts And The Finding Recorded By The Revisional Court Cannot Be Said To Be Perverse.
I Have Considered The Submissions Advanced By The Learned Counsel For The Parties.
It Is Seen That As Many As Nine Points For Consideration Were Framed By The Judge, Court Of Small Causes. The Judge, Court Of Small Causes Held That The Defendant-Dori Lal Had Sublet The Shop To Defendant No.2-Dev Pal And The Defendants, Without The Permission In Writing Of The Landlord, Had Made Structural Alterations In The Building Which Had Diminished The Value And Utility Of The Building But Both These Findings Have Been Reversed By The Revisional Court. There Is No Serious Challenge To These Findings Of The Revisional Court. What Has Been Challenged At The Time Of Hearing Is The Finding Recorded By The Revisional Court On Point Nos.1, 6, 7, 8 And 9. These Are Whether There Was A Relationship Of Landlord And Tenant Between The Plaintiff And The Deceased Dori Lal; Whether The Defendants Were Tenants At The Rate Of Rs.37.50 Or Rs.100/- Per Month; Whether The Defendants Committed Default In Payment Of Rent; Whether Defendant No.1/1 Was Entitled To The Benefit Of Section 20(4) Of The Act And Whether The Tenancy Of The Deceased Dori Lal Stood Terminated On The Expiry Of The Period Mentioned In The Notice Served By The Plaintiff.
It Is Not In Dispute That The Plaintiff Had Purchased The Disputed Property From His Brother Surendra Kumar By The Registered Sale Deed Dated 11th March, 1987 And That The Defendant Was A Tenant Prior To The Execution Of The Sale Deed. It Is Also Not In Dispute That Prior To July, 1988 The Monthly Rent Of The Shop Let Out To The Defendant Was Rs.37.50. In Order To Establish That The Plaintiff Had Informed The Defendant That He Had Become The Owner/landlord Of The Shop, Reliance Was Placed By The Plaintiff On The Counter Foils Of The Rent Receipts Which He Had Issued To The Defendant And On Which The Defendant Dori Lal Had Signed In Token Of Having Received The Receipts. The Counter Foils Of The Rent Receipts Which Had Been Filed By The Plaintiff Are Dated 15th May, 1987, 12th July, 1987, 20th November, 1987, 18th March, 1988, 12th July, 1988, 15th August, 1988, 20th October, 1988, 25th December, 1988 And 20th January, 1989. They Were Collectively Marked As Paper No.34-C. Defendant No.1 Had Died Before Any Written Statement Could Be Filed And The Written Statement Was Filed By Defendant No.1/1-Mohit Kumar (adopted Son Of The Deceased) Through His Mother. Defendant No.2-Dev Pal Who Is Also The Father Of Mohit Kumar Did Not File Any Written Statement. It Was Asserted In The Written Statement Filed By Defendant No.1/1 That The Monthly Rent Of The Shop Was Rs.37.50 And Not Rs.100/- As Claimed By The Plaintiff And It Was Also Asserted That The Plaintiff Or His Brother Surendra Kumar Did Not Inform The Deceased Dori Lal Or Defendant No.1/1 That The Plaintiff Had Become The Sole Owner/landlord Of The Premises. According To The Defendants The Plaintiff And His Brother Surendra Kumar Were Co-owners/landlords Of The Shop.
The Judge, Court Of Small Causes, Recorded A Categorical Finding Of Fact That The Relationship Of Landlord And Tenant Existed Between The Parties. For Determining This Issue, The Court Was Required To Ascertain To Whom The Rent Was Being Paid By The Tenant Because ''landlord' Has Been Defined In Section 3(j) Of The Act To Mean A Person To Whom The Rent Is Payable. The Plaintiff Claimed That He Informed The Defendant Dori Lal That He Had Purchased The Shop And Had Become The Landlord And The Defendant Dori Lal Started Paying Rent To Him For Which He Issued Receipts And Dori Lal Signed On The Counter Foils Of The Rent Receipts. Dori Lal-defendant No.1 Who Was The Tenant Died Before Written Statement Could Be Filed By Him. Defendant No.1/1, Who Was Substituted, Denied The Signatures Of Dori Lal On The Counter Foils Of The Rent Receipts. The Court Of Small Causes Was, Therefore, Required To Examine Whether The Deceased Dori Lal Had Actually Signed On The Counter Foils Of The Rent Receipts Because If He Had, Then It Would Clearly Establish That The Plaintiff Was The Landlord Since The Rent Was Being Paid To The Plaintiff. This Would Also Determine Whether The Monthly Rent Was Raised To Rs.100/- Per Month With Effect From July, 1988 Because The Rent Receipts Issued From July, 1988 Are Of Rs.100/- Per Month. In This Connection The Court Of Small Causes Noticed That The Plaintiff Had Filed The Report Of Handwriting Expert Vishan Kumar Sharma (Paper No.49-C) Who Had Also Appeared As A Witness (PW-4) To Prove The Said Report While The Defendant No.1/1 Had Filed The Report Of Handwriting Expert Anup Sinha (Paper No.55-C) Who Had Also Appeared As A Witness (DW-1) To Prove His Report. The Report Of The Handwriting Expert Vishan Kumar Sharma Clearly Mentions That Dori Lal Had Signed On The Counter Foils Of The Rent Receipts But The Report Of The Handwriting Expert Anup Sinha Mentions That The Signatures On The Counter Foils Of The Rent Receipts Are Not Of Dori Lal. The Court Of Small Causes Also Considered The Statement Of PW-3 Ram Prakash, Who Was None Other Than The Brother-in-law Of The Deceased Dori Lal, Who Stated That The Signatures On The Counter Foils Of The Rent Receipts Were Of Dori Lal Since He Recognised The Signatures Of Dori Lal And Had Also Seen Him Writing. The Court Of Small Causes Also Considered The Statement Of DW-2-Asha Devi Who Had Denied The Signatures Of Dori Lal On The Counter Foils Of The Rent Receipts. The Statement Of Asha Devi Was Not Accepted Because She Had Not Stated That She Recognised The Signatures Of Dori Lal Or Had Seen Him Write. The Court Of Small Causes Gave Specific Reasons As To Why The Report Of The Handwriting Expert Vishan Kumar Sharma Filed By The Plaintiff Should Be Accepted And Why The Report Of The Handwriting Expert Anup Sinha Filed By The Defendant Should Not Be Accepted.
The Revisional Court Has Reversed The Findings Of The Court Of Small Causes And Has Held That The Relationship Of Landlord And Tenant Did Not Exist. The Revisional Court Noticed That While Deciding Point No.1, At One Stage, The Court Of Small Causes Held That The Plaintiff Had Not Informed The Defendant-Dori Lal That He Had Purchased The Shop While At Another Stage Held That The Plaintiff Was The Landlord. Thus, Contrary Findings Had Been Given By The Court Of Small Causes And To Find Out Which Finding Was Correct, It Was Necessary For The Court To Examine The Facts And Record Its Own Finding. It Would, Therefore, Be Appropriate To Refer To These Observations Of The Revisional Court For Determining Whether The Relationship Of Landlord And Tenant Existed Between The Plaintiff And The Defendant And It Is As Follows:-

"The Learned J.S.C.C. Has Failed To Appreciate That He Is Giving Contradictory Finding On The Two Issues. On One Hand He Has Held That The Defendant No.1 Was Not Informed Upto August, 1990, About The Sale Deed Executed By Sr Surendra Kumar And He Is Not Liable To Ejectement By Denying The Sole Title Of The Plaintiff. On The Other Hand, The Learned J.S.C.C. Has Held That There Exists Relationship Of The Landlord And Tenant Between The Plaintiff And The Defendant No.1 And The Counter-foils Filed Contain The Signatures Of The Defendant No.1 And The Rent Has Been Enhanced To Rs.100/= Per Month By Way Of Mutual Agreement In July, 1988. Only One Finding Can Be Correct. The Correctness Of One Finding Excludes The Truthfulness Of The Other Issue. Either The Defendant No.1 Didn't Know That Sri Surendra Kumar Had Executed The Sale Deed In Favour Of The Plaintiff And He Continued To Treat The Plaintiff As The Co-owner Till August, 1990, Or The Plaintiff Met The Defendant No.1 And Informed About The Sale Deed And The Defendant No.1 Started To Pay Rent To The Plaintiff And Agreed To Enhance It In July, 1988. In A Revision, The Revisional Court Can Not Appreciate The Evidence On Record Nor Can Make Its Own Conclusions But Certainly Where There Are Two Contradictory Findings On Two Issues And Only One Finding Can Be Correct, The Revisional Court Can Go Into Evidence To Find Out Which Of The Two Findings Is Correct. The Learned J.S.C.C. Has Given A Definite Finding That The Plaintiff Rajaram Did Not Inform The Defendant No.1 About The Sale Deed Dated 12-03-1987 Either Orally Or In Writing. It Has Also Been Held By The Learned J.S.C.C. That The Defendant No.1 Has Mentioned The Plaintiff As The Co-owner In Original Suit No.232/1990 Because He Was Not Informed About The Sale Deed Dated 12-03-1987. This Finding Is Based On Cogent Reasons And Is Fully Substantiated From The Evidence Available On The Record. On The Other Hand, The Findings About The Relationship Of The Landlord And Tenant In Respect Of Signatures Of The Defendant No.1 On Paper No.34/C And Enhancement Of Rent Are Not Based On Proper Appreciation Of Evidence And Of Facts. ...................... The Learned J.S.C.C. Has Held At Page-19 Of His Judgment That The Plaintiff Is The Sole Owner Of The Shop In Question After The Execution Of The Sale Deed Dated 12-02-1987 And On The Basis Of It Issue No.1 Has Been Decided In Favour Of The Plaintiff By Holding That There Is Relationship Of Landlord And Tenant Between The Parties. It Is, Thus, Manifestly Obvious That The Learned J.S.C.C. Has Committed Mistake By Treating The Ownership And Landlordship As The Same.

It Is, Therefore, Necessary To Find Out From The Judgment Of The Court Of Small Causes As To Whether A Contrary Finding Was Given. It Is Seen That The Court Of Small Causes Recorded A Categorical Finding Of Fact On The Basis Of The Registered Sale Deed Dated 12th March, 1987 (Exhibit-I) Executed By Surendra Kumar In Favour Of The Plaintiff, Which Deed Was Proved, That The Plaintiff Became The Sole Owner Of The Shop And To Determine Whether The Relationship Of Landlord And Tenant Existed, The Court Of Small Causes Examined Whether The Tenant-Dori Lal Had Signed The Counter Foils Of The Rent Receipts Issued By The Landlord. On The Basis Of The Statements Of PW-1, PW-3, PW-4 And The Report Of The Handwriting Expert (Paper No.49-C), The Court Of Small Causes Concluded That The Defendant Dori Lal Had Signed The Counter Foils Of The Rent Receipts And, Therefore, Held That The Relationship Of Landlord And Tenant Existed Since Defendant-Dori Lal Was Paying Rent To The Plaintiff. However, The Court Of Small Causes, While Deciding Point No.1 Also Considered Whether The Contention Of The Plaintiff That The Defendant Was Liable To Be Ejected Under Section 20(2)(f) Of The Act Because The Tenant Had Denied The Title Of The Landlord. The Court Of Small Causes Rejected This Contention Of The Plaintiff For The Reason That Dori Lal Had Not Denied The Title Of The Plaintiff But Had Merely Asserted That The Plaintiff Was The Co-owner Of The Property With His Brother Surendra Kumar. It Is While Deciding This Issue That A Casual Observation Was Made By The Court Of Small Causes That It May Be Possible That The Plaintiff Had Not Informed Dori Lal About The Said Sale Deed But The Reason For Rejecting The Contention Of The Plaintiff Was That Dori Lal Had Not Denied The Title Of The Plaintiff But Had Merely Asserted That He Was The Co-owner With His Brother Surendra Kumar And In This Connection Reliance Was Placed By The Court Of Small Causes On The Decision Of The Supreme Court In C. Chandramohan Vs. Sengottaiyan (dead) By Lrs. & Ors., AIR 2000 SC 568 Wherein It Was Held That Mere Assertion By The Tenant That The Landlord Is A Co-owner Of The Tenanted Property Does Not Amount To Denial Of Title.
On The Other Hand, As Noticed Hereinabove, The Court Of Small Causes Had Recorded A Categorical Finding Of Fact Based On The Signatures Of The Defendant On The Counter Foils Of The Rent Receipts Issued By The Plaintiff That The Relationship Of Landlord And Tenant Existed Between The Parties As The Defendant (tenant) Was Paying Rent To The Plaintiff (landlord).
The Revisional Court Was Conscious Of The Observations Made By The High Court In Its Judgment While Remitting The Matter That The Revisional Court In Appreciating The Evidence And Recording Its Own Finding Of Fact Exceeded Its Jurisdiction But In Its Anxiety To Still Appreciate The Facts, The Revisional Court Placed Uncalled For Emphasis On The Casual Statement Of The Court Of Small Causes To Make Out A Case That A Contrary Finding Of Fact Had Been Recorded By The Court Of Small Causes While Deciding Whether The Relationship Of Landlord And Tenant Existed Between The Parties. There Is In Fact No Contrary Finding And The Revisional Court Again Exceeded Its Jurisdiction In Re-appreciating The Evidence.
Learned Counsel For The Respondents Has Submitted That The Revisional Court Could Have Interfered With The Findings Of Fact And In This Connection, He Has Placed Reliance Upon The Decision Of The Supreme Court In Jagdish Prasad Vs. Smt. Angoori Devi, 1984 (1) ARC 679 (SC) Wherein It Was Observed:-

"The Revisional Jurisdiction Under Section 25 Of The Provincial Small Cause Courts Act Is Not As Wide As The Appellate Jurisdiction Under Section 96 Of The Civil P.C.; Yet In A Case Of This Type We Do Not Think Fault Could Be Found With The Revisional Court For Pointing Out The Legal Error Committed By The Trial Court In Its Approach To This Material Aspect. The Legal Position Having Been Totally Misconceived By The Trial Court And There Being An Assumption Of The Position Which The Landlord Was Required To Prove By Evidence, The Revisional Authority Was Entitled To Point Out The Legal Error And Rectify The Defect. This Is All That Had Been Done By The Additional District Judge."

Learned Counsel For The Respondents Has Also Placed Reliance Upon The Decision Of The Supreme Court In Shyam Lal Vs. Rasool Ahmed (Dead) By LRs., (2002) 9 SCC 499 Wherein It Was Observed:-

"Lastly, It Was Submitted That The District Court Exercising Revisional Jurisdiction Did Not Have Jurisdiction To Interfere With The Findings Of Fact Arrived At By The Trial Court. This Submission Is Also Liable To Be Rejected. Firstly, It Was A Revision Preferred Under Section 25 Of The Provincial Small Causes Courts Act, The Jurisdiction Whereunder Is Not So Limited As It May Be Under Section 115 Of The Code Of Civil Procedure. Secondly, As We Have Already Pointed Out The Learned District Judge Had Assigned Convincing Reasons For Arriving At A Finding Different From The One Arrived At By The Trial Court And On The Material Available On Record, The District Judge Though Exercising Revisional Jurisdiction Was Fully Justified In Interfering With Findings Of Fact Arrived At By The Trial Court Which Overlooked The Weighty Relevant Material Available On Record And Clinching The Issue."

In Jagdish Prasad (supra) The Revisional Court Had Pointed Out The Legal Error And In Shyam Lal (supra) The Trial Court Had Overlooked The Weighty Relevant Material Which Was Available On The Record And Which Clinched The Issue.
Learned Counsel For The Petitioner Has, However, Referred To The Decision Of The Division Bench Of This Court In Laxmi Kishore & Anr. Vs. Har Prasad Shukla, 1981 ARC 545 Wherein It Was Observed:-
"The Court Deciding A Revision Under Section 25 Of The Provincial Small Cause Courts Act Has To Satisfy Itself That The Trial Courts' Decree Or Order Is According To Law. Ofcourse, The Revisional Court Should Keep In Mind The Supreme Court's Dictum In Naicker's Case (supra) That A Wrong Decision On Fact Is Also A Decision According To Law.
If It Finds That There Is No Evidence To Sustain A Finding On A Particular Issue Of Fact, It Can Ignore That Finding. Same Will Be The Case Where The Finding Is Based Only On Inadmissible Evidence. In Such Cases, The Court Will Be Justified In Deciding The Question Of Fact Itself, Because The Evidence Is All One Way. No Assessment Is Needed. The Court Can Also Decide The Revision If Only A Question Of Law Or Some Preliminary Point Of Law, Viz. Validity Of Notice, Is Sufficient For Its Decision.
But, If It Finds That A Particular Finding Of Fact Is Vitiated By An Error Of Law, It Has Power To Pass Such Order As The Justice Of The Case Requires; But It Has No Jurisdiction To Reassess Or Reappreciate The Evidence In Order To Determine An Issue Of Fact For Itself. If It Cannot Dispose Of The Case Adequately Without A Finding On A Particular Issue Of Fact, It Should Send The Case Back After Laying Down Proper Guidelines. It Cannot Enter Into The Evidence, Assess It And Determine An Issue Of Fact."

It Is The Submission Of The Learned Counsel For The Petitioner That When The High Court, While Remitting The Matter To The Revisional Court, Had Observed On The Basis Of The Aforesaid Division Bench Judgment Of This Court That The Revisional Court Should Not Have Appreciated The Entire Evidence And Recorded Its Own Finding Of Fact, It Was Not Open To The Revisional Court To Re-appreciate And Re-assess The Evidence.
It Is, Therefore, Not Possible To Accept This Submission Advanced By The Learned Counsel For The Respondents.
Even Otherwise, It Is Very Difficult To Sustain The Reasoning Given By The Revisional Court For Holding That The Defendant-Dori Lal Had Not Signed The Counter Foils Of The Rent Receipts. The Observation Of The Revisional Court Are As Follows:-
"The Other Mistake Committed By The Learned J.S.C.C. Is In Respect Of The Appreciation Of ''expert' Evidence. ...................... In The Present Case The Report Of Shri Bishan Kumar Sharma, Expert, Handwritings And Finger Prints, On Behalf Of The Plaintiff Says That The Pen Pressure In Admitted Signatures Is Somewhat Heavy. The Said Expert Has Also Found That The Pressure Shading And Pen Position Are Not Applicable To Disputed Signatures As They Are Written With A Ball Point Pen Writing Instrument. The Expert Shri Bishan Kumar Sharma In His Report Says That Due To The Passage Of Time The Handwriting May Show General Weaknesses In The Form Of Tremors Or That The Style Of Some Of The Letters May Become Different. He Also Says That The Disputed Signatures Are Of 1987 To 1990 While The Admitted Signatures Are Of 1974. In His Statement At Page-8 Shri Bishan Kumar Sharma, Expert, Has Admitted Several Differences Between The Admitted And Disputed Signatures. All The Differences Occurred Between The Admitted And The Disputed Signatures Have Been Attributed To The Lapse Of Time And Old Age. The Admitted Signatures Are About Fifteen (15) Years Old And The Difference Is Due To Lapse Of Time And Old Age Is The Conclusion Arrived At By Shri Bishan Kumar Sharma, Expert, But The Facts Remain That The Differences Exist Between The Disputed And The Admitted Signatures. I Also Visualised And Scrutinised The Photoprints Of The Signatures Available On The Record Whereby It May Be Mentioned That From The Naked Eye ''ghundi' In Alphabet, ''ra' Is Different In The Admitted And Disputed Signatures. In The Admitted Signatures It Is Inside, That Is, Towards East Whereas In The Disputed Signatures An Attempt Has Been Made To Make It Look Towards Inside But The Attempter/writer Has Not Succeeded In Doing So And There Is Palpably Difference In The Attempt So Made In Every Disputed Signatures.
There Is One More Very Material Fact About It. The Plaintiff Got The Admitted Signatures Examined From The Admitted Signatures Made In 1974 And The Reasons For Occurring Differences Have Been Attributed To The Lapse Of Time And Old Age Whereas The Admitted Signatures Of Dori Lal Made Recently Were Also Available On The Record And Were In The Knowledge Of The Plaintiff As Well. Sri Dori Lal Had Filed Original Suit No.232/1990 In The Court Of Munsif Sahaswan. The Plaint, The Vakalatnama And The Affidavit Available On This File Must Contain The Signatures Of Sri Dori Lal Made In 1990. Even The Plaintiff Is Not In A Position To Say That He Was Not Aware Of Its Existence. The Plaintiff Has Himself Filed The Copy Of The Report Commission, Paper No.127/C, Which Shows That The Plaintiff Was Served With The Summons Of O.S. No.232/1990 Before 11.9.90. When The Above Noted Two Contradictory Findings Are Tested By The Evidence Led By The Parties, The Irresistible Conclusion Is That The Findings In Respect Of The Signatures Of Dori Lal On Counter-foils Of Rent Receipt Books, Paper No.34/C, Enhancement Of The Rent And Payment Of Rent To The Plaintiff Are Not Correct While The Finding That The Defendant No.1 Hasn't Denied The Title Of The Plaintiff By Alleging Him As Co-owner Along With His Brother In Original Suit No.232/1990 Is Based On The Evidence On Record And Is To Be Accepted As Correct Version. Consequently, The Findings Of The Learned J.S.C.C. On Issue Nos.1 And 6 Are Set Aside.
(emphasis Supplied)
It Is Noticed From The Aforesaid Reasoning That The Revisional Court Only Makes Reference To The Report Of The Handwriting Expert Vishan Kumar Sharma And Does Not Point Out Any Fault In It Or Give Reasons As To Why It Should Not Be Accepted, Though The Court Of Small Causes Had Accepted The Report. The Revisional Court Did Notice That The Slight Difference In The Admitted Signatures And The Disputed Signatures Of Dori Lal Was Explained By The Handwriting Expert Vishan Kumar Sharma As Being On Account Of The Time Gap Since The Admitted Signatures Were Of The Year 1974 While The Disputed Signatures On The Counter Foils Of The Rent Receipts Were From The Years 1987 To 1989 And Due To Advanced Age There Can Be Tremors, But Without Finding Any Fault In This Explanation Of The Handwriting Expert Concluded That The Fact Remains There Is A Difference In The Signatures. The Revisional Court Then Proceed To Compare The Admitted Signatures And The Disputed Signatures With Naked Eye And Observed That Only An Attempt Has Been Made By The Person Making The Disputed Signatures To Make It Look Like The Admitted Signatures. There Is No Doubt That The Court Can Compare The Disputed Signatures With The Admitted Signatures But As A Matter Of Caution And Judicial Sobriety, The Court Should Not Normally Take Upon Itself The Responsibility Of Comparing The Disputed Signatures With That Of The Admitted Signatures And In The Event Of The Slightest Doubt, Leave The Matter To The Wisdom Of Experts.
This Is What Was Observed By The Supreme Court In Ajit Savant Majagvai Vs. State Of Karnataka, (1997) 7 SCC 110 After Referring To Section 73 Of The Evidence Act :-

"The Section Does Not Specify By Whom The Comparison Shall Be Made. However, Looking To The Other Provisions Of The Act, It Is Clear That Such Comparison May Either Be Made By A Handwriting Expert Under Section 45 Or By Anyone Familiar With The Handwriting Of The Person Concerned As Provided By Section 47 Or By The Court Itself.

As A Matter Of Extreme Caution And Judicial Sobriety, The Court Should Not Normally Take Upon Itself The Responsibility Of Comparing The Disputed Signature With That Of The Admitted Signature Or Handwriting And In The Event Of The Slightest Doubt, Leave The Matter To The Wisdom Of Experts. But This Does Not Mean That The Court Has Not The Power To Compare The Dispute Signature With The Admitted Signature As This Power Is Clearly Available Under Section 73 Of The Act."

In The State (Delhi Administration) Vs. Pali Ram, AIR 1979 SC 14, The Supreme Court Held That A Court Does Not Exceed Its Power Under Section 73 Of The Evidence Act If It Compares The Disputed Writing With The Admitted Writing Of The Party So As To Reach Its Own Conclusion But The Supreme Court Also Sounded A Note Of Caution:-
"Although There Is No Legal Bar To The Judge Using His Own Eyes To Compare The Disputed Writing With The Admitted Writing, Even Without The Aid Of The Evidence Of Any Handwriting Expert, The Judge Should, As A Matter Of Prudence And Caution, Hesitate To Base His Finding With Regard To The Identity Of A Handwriting Which Forms The Sheet-anchor Of The Prosecution Case Against A Person Accused Of An Offence, Solely On Comparison Made By Himself. It Is Therefore, Not Advisable That A Judge Should Take Upon Himself The Task Of Comparing The Admitted Writing With The Disputed One To Find Out Whether The Two Agree With Each Other; And The Prudent Course Is To Obtain The Opinion And Assistance Of An Expert."

This Caution Was Again Reiterated By The Supreme Court In O. Bharathan Vs. K. Sudhakaran, AIR 1996 SC 1140.
In Thiruvengada Pillai Vs. Navaneethammal & Anr., AIR 2008 SC 1541, The Supreme Court Also Cautioned That Comparison Of Signatures By The Court Without The Assistance Of Any Expert Is Hazardous And Risky And The Observations Are:-
"While There Is No Doubt That Court Can Compare The Disputed Handwriting/signature/finger Impression With The Admitted Handwriting/ Signature/finger Impression, Such Comparison By Court Without The Assistance Of Any Expert, Has Always Been Considered To Be Hazardous And Risky. ........."

In The Present Case, As Noticed Hereinabove, Both The Parties Had Filed Reports Of The Handwriting Experts And The Experts Had Also Been Produced As Witnesses. The Court Of Small Causes Had Considered The Reports And The Statements As Also The Statement Of PW-3 Ram Prakash Sharma, Brother-in-law Of The Deceased Dori Lal As Also The Statement Of Asha Devi-DW-2. The Court Of Small Causes Noticed That The Expert Vishan Kumar Sharma Had Meticulously Examined The Signatures And Had Pointed Out The Slight Difference In The Admitted Signatures Of The Year 1974 And The Disputed Signatures Of 1989 Was Because Dori Lal Had Become Old In 15 Years And So There Can Be A Slight Difference In The Signatures Because Of The Tremors In Hand. No Fault Can Be Found In The Acceptance Of This Opinion Of The Expert By The Court Of Small Causes And In Such A Situation When The Revisional Court Did Not Even Point Out As To Why The Opinion Of The Handwriting Expert And The Statement Of PW-3 Should Not Be Accepted, The Finding Of The Revisional Court That The Counter Foils Of The Rent Receipts Did Not Contain The Signatures Of The Deceased Defendant-Dori Lal Because From A Perusal Of The Signatures It Appears That An Attempt Was Made By The Person Making The Signatures To Make The Signatures Look Like The Signatures Of Dori Lal, Cannot Be Sustained.
What Further Needs To Be Noticed Is That The Revisional Court Has Also Made Observation That The Admitted Signatures Of Dori Lal Of The Year 1974 Should Not Have Been Taken Into Consideration When The Admitted Signatures Of Dori Lal Of The Year 1990 Were Also Available In The File Of The Original Suit No.232 Of 1990. This Was Neither The Case Of The Defendant And Nor Is There Anything On The Record To Indicate That The Defendant Raised This Issue. The Revisional Court Was, Therefore, Not Justified In Making Such An Observation.
Once It Is Accepted That The Defendant-Dori Lal Had Signed On The Counter Foils Of The Rent Receipts, It Also Follows That The Rent Prior To July, 1988 Was Rs.37.50/- And With Effect From July, 1988 Was Rs.100/- Per Month As The Rent Receipts From July, 1988 Are Of Rs.100/- Per Month.
Thus, The Findings Of The Revisional Court On Point Nos.1 And 6 Are Set Aside That That Of The Court Of Small Causes Are Confirmed. The Relationship Of Landlord And Tenant Existed Between The Parties And The Rate Of Rent Upto June, 1988 Was Rs.37.50/- And With Effect From July, 1988 Was Rs.100/- Per Month.
The Revisional Court Accepted That The Defendant Had Committed Default In Payment Of Rent But It Has Observed That This Would Not Result In Ejectment Of The Defendants For The Reason That The Notice Served By The Plaintiff Under Section 106 Of The Transfer Of Property Act For Determination Of The Tenancy Did Not Have The Effect Of Terminating The Tenancy. The Observations Of The Revisional Court Are As Follows:-

.................. Now We Come To The Last Question Whether The Notice Terminating The Tenancy Is Valid ? The Plaintiff Purchased The Property In Question From His Brother Sri Surendra Kumar On 11-03-1987 But Neither He Nor Sri Surendra Kumar Informed The Defendant No.1 About The Change Of Ownership. According To The Defendants' Case, The Defendant No.1 Continued To Pay Rent To Sri Surendra Kumar. In Such A Case There Are Three Parties. First - The Landlord; Second - The Tenant, And The Third - The Purchaser. In Case The Landlord And The Purchaser, Both Give Notice To The Tenant That In Future The Tenant Is To Pay Rent To The Purchaser, The Purchaser Becomes Landlord When The Tenant Attorns But Only The Purchaser Informs The Tenant That He Has Become Landlord Then The Attornment Is Not Expected To Be Made Immediately. The Tenant May Take Time To Inquire About The Same. In The Present Case, For The First Time, The Plaintiff Informed The Defendant No.1 About The Purchase Of The Property. As Such, It Could Not Have The Effect Of Terminating The Tenancy Of The Tenant, Rather The Tenant Ought To Have Some Opportunity Of Ascertaining The True Position Of Affairs. Further, It Has Been Seen That The Rate Of Rent Has Been Shown Incorrect In The Notice. Again, The Other Grounds Shown For The Ejectment Have Also Not Been Found Correct. The Only Fact Which Has To Be Maintained Is Non-payment Of Rent From 12-01-1989 To Onwards. The Defendants Have Pleaded That They Have Paid Rent And The Receipts Given By Shri Surendra Kumar Though Filed By Defendants Have Not Been Proved. As Such, Then Liability Of The Defendants To Pay Rent At The Rate Of Rs.37=50 Paise Per Month W.e.f. 12-01-1989 Onwards Continues."

This Finding Of The Revisional Court Cannot Be Sustained. In The First Instance, It Has Been Found That The Relationship Of Landlord And Tenant Existed And The Defendant Started Paying Rent To The Plaintiff After The Plaintiff Became The Sole Owner/landlord Of The Shop. The Finding Of The Revisional Court That For The First Time The Defendant Got To Know That The Plaintiff Was The Sole Owner Of The Property On The Basis Of The Registered Sale Deed Dated 11th March, 1987 When The Notice Was Served By The Plaintiff Is, Therefore, Not Correct. This Apart, Mere Mention Of A Higher Rent In The Notice Sent Under Section 106 Of The Transfer Of Property Act Does Not Make The Notice Invalid, In View Of The Full Bench Decision Of This Court In Gokaran Singh Vs. Ist Additional District & Sessions Judge, Hardoi & Ors., 2000 (1) ARC 653. The First Question Before The Full Bench In This Case Was Whether A Notice Of Demand Can Be Held To Be Invalid Or Mala Fide On The Ground That The Rate Of Rent Had Been Demanded At A Higher Rate Than The Correct Rate, And If So Whether The Tenant Can Be Absolved From The Duty Of Complying With Such A Notice. The Full Bench After Relying Upon The Decision Of The Supreme Court In Tayyab Ali Vs. Ahsan & Co., AIR 1971 SC 102 Observed That Such Notice Cannot Be Said To Be Invalid Or Mala Fide. It Also Needs To Be Noted That Even Otherwise, The Plaintiff Had Not Demanded Any Higher Rent Since It Has Been Found As A Fact That With Effect From July, 1988 The Rent Was Rs.100/- Per Month.
The Court Of Small Causes Had Recorded A Categorical Finding While Deciding Point No.8 That Defendant No.1/1 Had Not Deposited The Amount Required To Be Deposited Under Section 20(4) Of The Act On The First Date Of Hearing So As To Relieve The Tenant Against His Liability For Eviction On The Ground Of Default. The Revisional Court Did Not Advert To This Point For The Reason That It Had Found The Notice Terminating The Tenancy To Be Invalid Though It Has Recorded A Finding That The Tenant Had Committed Default In Payment Of Arrears Of Rent. There Is No Illegality In The Finding Recorded By The Court Of Small Causes That The Benefit Of Section 20(4) Of The Act Could Not Be Taken By The Defendant Since The Amount Was Not Deposited On The First Date Of Hearing.
Thus, For All The Reasons Stated Above, It Is Not Possible To Sustain The Judgment And Order Of The Revisional Court.
The Writ Petition Is, Accordingly, Allowed. The Judgment And Order Dated 16th October, 2006 Passed By The Revisional Court Is Set Aside And That Of The Judge, Court Of Small Causes Dated 6th September, 2000 Is Restored.
Date: 23.02.2012
GS
After The Judgment Had Been Delivered, Learned Counsel For The Respondent-tenant Made A Prayer That Some Time May Be Given To The Tenant To Vacate The Shop In Dispute. He Further States That The Tenant Shall Now Pay Damages At The Rate Of Rs.500/- Per Month Instead Of Rs.100/- Per Month And That The Tenant Shall Also Furnish An Undertaking Before The Judge, Court Of Small Causes Within Two Weeks.
The Tenant Is, Accordingly, Granted Time Upto 31st May, 2012 To Handover The Peaceful Possession Of The Shop To The Landlord Subject To The Tenant Giving An Undertaking Within Two Weeks From Today Before The Judge, Court Of Small Causes To The Following Effect :-

1. That The Tenant Shall Handover Peaceful Possession Of The Shop To The Landlord On Or Before The 31st May, 2012.
2. That The Tenant Shall Pay Damages At The Rate Of Rs.500/- Per Month Up To The Date He Hands-over The Possession Of The Shop To The Landlord.
3. That The Tenant Shall Not Induct Any Other Person In The Shop.

It Is Made Clear That In The Event The Tenant Fails To Give The Undertaking Within The Aforesaid Period Or Fails To Comply With Any Of The Terms Of The Undertaking, It Will Be Open To The Landlord To Get The Decree Executed.

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