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Case Number

C.M.W.P No. 16770 of 2002

Judges

Rakesh Tiwari, J.

Acts

provisions of Rule 9 of Chapter-XXII and Rule 11 of Chapter-XXI of the High Court Rules, 1951 and provisions of sections 34, 35-A and 35-B of the Code of Civil Procedure
provisions of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act)
SECTION 106 TRANSFER OF PROPERTY ACT
SECTION 95 EVIDENCE ACT

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Smart Summary

Structured Summary of the Opinion (Rakesh Tiwari, J.)

Factual and Procedural Background

The tenant-petitioner sought writs in the nature of certiorari and mandamus to quash the judgment and decree dated 4.5.2001 passed in Suit No. 94 of 1999 by the Small Causes Court, Bijnor (respondent No. 2) and the judgment dated 20.3.2002 passed in Revision No. 21 of 2001 by the Revisional Court (respondent No. 1), and to restrain eviction from the disputed shop.

According to the writ petition, respondent No. 3 (the landlord) filed Suit No. 94 of 1999 against the tenant in the Small Causes Court claiming the shop was let on monthly rent of Rs. 715/- from 1.1.1996 and seeking eviction and rent arrears. The tenant-petitioner asserted that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ("the Act") did not apply; that an earlier rent note existed (dated 3.10.1988) and tenancy commenced on 1.10.1988; and that the landlord had forged a later rent deed dated 1.1.1996. The tenant admitted paying rent up to 31.12.1998, disputed default claims for 1999, sent responses to demand notices, attempted to remit arrears (including deposits under section 30 of the Act), and relied on various rent receipts as proof of prior tenancy.

The Trial Court, on appraisal of oral and documentary evidence, decreed the landlord's suit. The Revisional Court upheld that decree. The tenant then sought judicial review via the present writ petition challenging the findings below and seeking relief from eviction.

Legal Issues Presented

Whether the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 apply to the disputed shop (i.e., whether the shop is exempt under section 2 based on the year of construction).
Whether the tenancy commenced w.e.f. 1.10.1988 (as claimed by the tenant) or from 1.1.1996 (as asserted by the landlord), and the evidentiary consequences of each finding.
Whether the tenant committed default in payment of rent for the period claimed by the landlord (specifically 1.1.1999 to 15.9.1999) and whether arrears were validly tendered or deposited.
Whether the xerox copy of an earlier rent deed is admissible where the landlord filed an original rent deed, in light of section 95 of the Evidence Act (as raised by the tenant).
Whether concurrent findings of fact recorded by the Trial Court and Revisional Court on the disputed issues are open to challenge in writ jurisdiction.

Arguments of the Parties

Tenant-Petitioner (Appellant)'s Arguments

The Act does not apply to the disputed accommodation and the tenancy began earlier (tenant says tenancy started from 1.10.1988).
A written rent note was executed (claimed dates and terms: an earlier rent deed dated 3.10.1988 and rent of Rs. 650/- earlier, raised to Rs. 715/- from 1996 by consent).
The landlord forged a new rent deed dated 1.1.1996 (allegation of forgery: earlier deed says shop constructed in 1983 whereas the 1996 deed states construction in 1991).
The tenant paid rent up to 31.12.1998; arrears for 1999 were tendered by registered notice and by Money Orders which were returned undelivered; thereafter a deposit of Rs. 8,580/- was made under section 30 of the Act on 17.12.1999 covering demanded arrears.
The landlord filed only a xerox copy of the 1.1.1996 rent deed and that xerox copy is inadmissible under section 95 of the Evidence Act.
The landlord never objected when rent was paid in lump sums.
The Courts below erred in holding the Act did not apply without proper pleading regarding year of construction, misapplied section 20(4) of the Act, and wrongly fixed the commencement of tenancy as 1.1.1996 instead of 1.10.1988.

Respondent-Landlord's Arguments

The disputed shop was constructed in 1991 and the tenancy was created by rent deed dated 1.1.1996 at monthly rent of Rs. 750/- (as pleaded in plaint).
The tenant committed default in payment of rent amounting to Rs. 6,681 for the period 1.1.1999 to 15.9.1999, and a notice dated 15.9.1999 terminating tenancy was issued.
The tenant replied to the notice (letter dated 7.10.1999) but remained in unauthorized occupation; hence suit for eviction and arrears was instituted.
Both Courts below recorded concurrent findings of fact that the shop was constructed in 1991 and the tenant was an unauthorized occupant; such concurrent findings are binding and not open to attack in writ jurisdiction.
Evidence and arguments cannot be advanced contrary to the pleadings; the tenant, being an unauthorized occupant, is not entitled to relief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of West Bengal v. Atul Krishna Shaw (1991 Supp 1 SCC 414)	That a finding based on cogent reasons is binding before superior Courts.	The court cited this authority to support the proposition that concurrent findings of fact by lower courts, based on cogent evidence, are binding and not open to re-examination in the writ jurisdiction.
Brij Nandan Sahai Hajela v. Third Additional District Judge, Shahjahanpur (1996 1 ARC 165)	Reiteration of the principle that findings of fact based on cogent reasons are binding on superior Courts.	The court relied on this decision to reinforce that concurrent findings of fact recorded by the Trial and Revisional Courts should not be disturbed in the present writ petition.
Bhim Singh (dead) by LRs. v. Kan Singh (AIR 1980 SC 727)	That it is not open to attack in writ jurisdiction the concurrent findings of fact recorded by lower Courts where the pleadings and evidence support such findings.	The court invoked this authority to hold that the petitioner cannot seek judicial review of concurrent factual findings made by the lower Courts regarding construction year and occupancy.
Ram Swarup Gupta (dead) by LRs. v. Bishun Narain Inter College (AIR 1987 SCC 1242)	Support for the principle that concurrent findings of fact are binding and not amenable to writ interference without legal infirmity.	The court relied on this precedent alongside others to refuse to entertain the writ petition attacking concurrent factual findings.
E. Parasuraman (deceased by LRs.) v. Doralswamy (AIR 2005 SC 376)	That an unauthorized occupant is not entitled to equitable relief in writ jurisdiction.	The court applied this principle to conclude that since both lower Courts found the petitioner to be an unauthorized occupant, he is not entitled to relief in the writ jurisdiction.
Salem Advocate Bar Association, Tamil Nadu v. Union of India (AIR 2005 SC 3353)	Principles and guidance on awarding costs: costs should generally follow the event; special reasons required when costs are not awarded; courts may impose exemplary costs where proceedings are frivolous or protracted.	The court relied on this decision to justify imposing exemplary costs on the petitioner for filing a frivolous petition and to explain the approach to awarding costs.
Nizamuddin v. Shakoor Ahmad (Civil Misc. Writ Petition No. 48752 of 2006)	That while awarding interest for non-payment, the Court should consider awarding penal interest as well; consideration of specific rules and provisions (High Court Rules and CPC sections) when awarding interest/costs.	The court cited its earlier decision in Nizamuddin to support the view that penal interest and costs may be imposed in appropriate cases and to show relevance of procedural rules and CPC provisions when awarding such reliefs.

Court's Reasoning and Analysis

The Court examined the record and noted the following key points of analysis made on the material before it:

The record showed that the landlord had filed the original rent deed dated 1.1.1996 (paper No. 26-Ga) before the Trial Court, while the tenant had filed a xerox copy of the 3.10.1988 deed (paper No. 54-Ga). The Trial Court, after appraising documentary and oral evidence, decreed the landlord's suit; this decree was upheld by the Revisional Court.
The Trial Court had found from cross-examination that the tenant admitted he had not deposited the entire rent; the Revisional Court recorded a similar conclusion on default and on the year of construction (1991) as proved by relevant and cogent evidence.
The Revisional Court also observed that the landlord specifically pleaded that the Act did not apply to the disputed shop, and that this plea was not specifically denied by the tenant. On this basis the Revisional Court found the Trial Court was justified in relying upon the original rent deed of 1.1.1996.
The present Court relied on authoritative precedent (e.g., State of West Bengal v. Atul Krishna Shaw and related authorities) to emphasise that findings of fact based on cogent reasons recorded by lower Courts are binding upon superior Courts and not ordinarily open to challenge in writ proceedings. The Court cited Bhim Singh and Ram Swarup Gupta to the same effect—i.e., a petitioner cannot ordinarily assail concurrent findings of fact through writ petition.
Applying E. Parasuraman, the Court held that since both lower Courts recorded concurrent findings that the petitioner was an unauthorized occupant, the petitioner was not entitled to equitable relief in the writ jurisdiction.
The petitioner failed to show any illegality or infirmity in the impugned judgments and decree that would warrant interference in writ jurisdiction; accordingly, the writ petition was dismissed.
On costs, the Court reviewed the principles set out in Salem Advocate Bar Association and applied its own earlier decision in Nizamuddin v. Shakoor Ahmad, concluding that this petition was frivolous and that exemplary/deterrent costs were warranted. The Court directed payment of Rs. 10,000 as costs, to be deposited within two months and recoverable as arrears of land revenue if not paid; the landlord could withdraw the deposited amount without furnishing security within two months.
The Court issued prospective directions for enforcement: the tenant must hand over peaceful possession of the shop within one month and pay arrears, if any, within two months; failure would lead to eviction by police and recovery of arrears as land revenue.

Holding and Implications

Holding: Writ petition dismissed.

Implications and direct consequences for the parties:

The tenant-petitioner is directed to hand over peaceful possession of the disputed shop to the respondent-landlord within one month from the date of the judgment.
The tenant must pay arrears of rent, if any, within two months from the date of the judgment.
Failure to vacate the shop within the stipulated period will result in eviction by police force; failure to make payment of arrears will result in recovery of the arrears as arrears of land revenue.
The tenant must also pay costs of Rs. 10,000/- to the District Judge, Bijnor within two months; the landlord may withdraw the arrears and costs deposited without furnishing security within two months of deposit. Failure to pay the costs will render them recoverable as arrears of land revenue.

Broader legal implications:

The opinion applies established authorities about the binding nature of concurrent findings of fact and the limits of writ interference; it also follows established Supreme Court guidance on awarding costs. The judgment primarily resolves the parties' dispute and implements remedies and cost orders between them. The opinion does not elaborate on any novel legal principle beyond application of the cited precedents and cost principles to the facts of this case.

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Fareed Ahmad v. Vth Additional District Judge, Bijnor

Rakesh Tiwari, J.:— Tenant-petitioner has approached this Court for a writ in the nature of certiorari quashing of impugned judgment and decree dated 4.5.2001 passed by respondent No. 2 in Suit No. 94 of 1999 and judgment dated 20.3.2002 passed by respondent No. 1 in Revision No. 21 of 2001 dismissing the revision and writ in the nature of mandamus commanding the respondents not to evict him from the disputed shop.

2. Briefly stated, facts of the case as disclosed in the writ petition are that respondent No. 3 is the landlord of the disputed shop. He filed S.C.C Suit No. 94 of 1999 in the Court of Judge, Small Causes Court, Bijnor against the tenant-petitioner, inter alia, on the ground that the shop, in question, was given on monthly rent of Rs. 715/- to the petitioner on 1.1.1996

3. The tenant claims that the provisions of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘the Act’) do not apply to the disputed accommodation and that a written rent note was executed between the parties on 1.1.1996 with condition that 10% of the rent will be enhanced after 3 years and in case of non-payment of rent for any month, it shall be paid along with 2% interest. It is further claimed that the tenant paid rent till 31.12.1998 and from 1.1.1999 onwards, he did not pay any rent; that registered notice dated 15.9.1999 was sent to the tenant demanding rent from 1.1.1999 till 15.9.1999 amounting to Rs. 6681/- and terminating the tenancy and that the tenant neither paid rent nor vacated the disputed accommodation.

4. The petitioner claims that he sent his reply dated 7.10.1999 to the notice dated 15.9.1999 stating therein that rent note was executed on 3.10.1988 but he started his business from 1.10.1988; that the monthly rent of the accommodation was Rs. 650/- which he has been paying regularly and the rent was increased to Rs. 715/- from 1996 with the consent of the parties.

5. It is alleged that the landlord forged a new rent deed in 1996 and that the arrears of rent are being sent which the landlord has not accepted.

6. The case set up by the petitioner is that the shop, in dispute was constructed in 1983. It is stipulated in the old rent deed dated 3.10.1988 that the disputed shop was constructed in 1983 whereas in the forged rent deed dated 1.1.1996, the shop is allegedly constructed in 1991. The petitioner has drawn the attention of the Court to the appended zerox copies of rent receipts from 1.10.1998 to 31.2.1989; 1.10.1995 to 31.10.1995 and 1.12.1995 to 31.12.1995 as Annexures-6 to 8 to the writ petition to establish that he had paid the rent for the aforesaid period and is not in default thereof and also to his written statement reiterating the facts disclosed in the reply to the notice dated 15.9.1999 The petitioner pleaded that the landlord did not filed original copy of the rent deed dated 1.1.1996 but filed its zerox copy, which is inadmissible under section 95 of the Evidence Act to establish that he did not pay rent from 1.1.1996 every month.

7. The further case of the petitioner is that the landlord never raised any objection when the aforesaid rent was paid to him in lump sum at one time.

8. It is submitted that arrears of rent of several months amounting to Rs. 6,435/- was sent to the landlord the moment he received notice under section 106 of the Transfer of Property Act and that the Money Orders for the aforesaid amount were received back undelivered hence he cannot be said to be a defaulter as thereafter he has deposited Rs. 8580/- under section 30 of the Act on 17.12.1999 which included all arrears of rent demanded by the landlord. Relying upon the rent receipts said to have been executed by the landlord, he submits that the tenancy started w.e.f 1.10.1988 and not from 1.1.1996 as is evident from rent receipts appended as Annexures-6 to 8 to the writ petition. It is stated that otherwise the landlord ought to have alleged in his plaint that the disputed shop was constructed in 1991 as such was exempted under section 2 of the Act but he merely stated that the provisions of the Act do not apply and that the landlord failed to prove default in payment of rent by the tenant.

9. Thus, the contention of Counsel for the petitioner, in brief is that the Courts below have erred in holding that the provisions of the Act do not apply to the disputed shop without there being any pleading regarding the year of construction of the disputed shop. He urged that the landlord did not file original rent deed dated 1.1.1996 as such, the zerox copy of the rent deed was inadmissible in evidence. He vehemently urged that the petitioner did not commit any default in making payment of rent as claimed by the landlord in his notice of demand. He submitted that the petitioner deposited the entire rent for the year 1999 under section 30 of the Act in Court which was deliberately refused by the landlord. He dubbed the findings of the Courts below as illegal on the question of applying provisions of section 20 (4) of the Act as the same does not apply to the facts of the present case. He also urged that the disputed shop is not exempted by section 2 of the Act as it was constructed in 1983 and not in 1991 and that the Courts below have wrongly held that the tenancy commenced w.e.f 1.1.1996 and not from 1.10.1988

10. The case of the landlord before the Courts below was that the shop was constructed in 1991 and tenancy was created vide rent deed dated 1.1.996 on monthly rent of Rs. 750/-; that the tenant committed default in payment of rent of Rs. 6,681 for the period between 1.1.1999 to 15.9.1999 as such, notice dated 15.9.1999 terminating the tenancy of the petitioner was issued to the tenant which was replied by the tenant vide letter dated 7.10.1999 It is, therefore, the landlord instituted S.C.C Suit No. 94 of 1999 in the Court of Judge, Small Causes Court, Bijnore for eviction of the tenant and arrears of rent of Rs. 6,691/- together with damages for unauthorized occupation from 15.9.1999 onwards.

11. Per contra, the contention of the Counsel for the respondent-landlord that the disputed shop was constructed in 1991 and both the Courts below have recorded concurrent finding of fact in this regard, as such, it is not open to the tenant to seek judicial review of such finding of fact. He urged that evidence cannot be led and arguments cannot be advanced contrary to the pleadings. He vehemently urged that the petitioner being an unauthorized occupant is not entitled to any relief.

12. No other point has been argued by the parties.

CONCLUSIONS:

13. It appears from the record that the landlord filed original rent deed dated 1.1.1996 (paper No. 26-Ga) and, the tenant filed zerox copy of rent deed dated 3.10.1988 (paper No. 54-Ga) before the Court below and after appraisal of documentary and oral evidence, the Trial Court decreed the suit of the landlord which was upheld by the Revisional Court.

14. Having heard arguments advanced by Counsels for rival parties and gone through the records, it is evident that the landlord had filed original rent deed (paper No. 26-Ga) which is also apparent from the following finding recorded by the Trial Court:—

15. The Trial Court also found that the tenant had admitted in his cross-examination that he had not deposited the entire rent. Relevant finding of the Trial Court to this effect is as under:—

16. The Revisional Court also found that the landlord specifically pleaded that the provisions of Act do not apply to the disputed shop which was specifically not denied by the tenant. It found that the Trial Court rightly relied upon the original rent deed dated 1.1.1996 It held that the finding of the Trial Court that the disputed building was constructed in 1991 is based on relevant and cogent evidence and that in the cross-examination the tenant admitted to have committed default in payment of rent. In State of West Bengal v. Atul Krishna Shaw . 1991 Supp 1 SCC 414., it has been held that finding based on cogent reasons is binding before superior Courts. Same view has been reiterated in Brij Nandan Sahai Hajela v. Third Additional District Judge, Shahjahanpur . 1996 1 ARC 165. In the facts when the landlord had specifically pleaded that the provisions of the Act do not apply to the disputed shop, which was not specifically denied by the tenant, it is not open to the petitioner to assail such finding in the writ petition as has been held in Bhim Singh (dead) by LRs. v. Kan Singh . AIR 1980 SC 727. and Ram Swarup Gupta (dead) by LRs. v. Bishun Narain Inter College . AIR 1987 SCC 1242. Since both the Courts below have recorded a concurrent finding of fact that the petitioner is an unauthorized occupant, he is not entitled to any equitable relief in the writ jurisdiction as has been held by Hon'ble the Apex Court in E. Parasuraman (deceased by LRs.) v. Doralswamy . AIR 2005 SC 376.

17. No other point has been argued.

18. The petitioner has failed to show any illegality or infirmity in the impugned judgments and decree passed by the Courts below warranting interference in the writ jurisdiction.

19. For all the reasons stated above, the writ petition fails and is dismissed. Tenant-petitioner will handover peaceful possession of the disputed shop to the respondent-landlord with a month from today and make payment of arrears of rent, if any, within two months from today. In case the disputed shop is not vacated and payment of arrears of rent is not made within the aforesaid stipulated period, he will be evicted by Police force and arrears of rent will be recovered as arrears of land revenue.

COSTS:

20. In so far as cost is concerned, Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India . AIR 2005 SC 3353, has held that:—

“So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.”

21. Thus, from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.

22. Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006 Nizamuddin v. Shakoor Ahmad after considering provisions of Rule 9 of Chapter-XXII and Rule 11 of Chapter-XXI of the High Court Rules, 1951 and provisions of sections 34, 35-A and 35-B of the Code of Civil Procedure has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.

23. Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of arrears of rent, the petitioner will also pay cost of Rs. 10,000/- which shall be deposited by him before the District Judge, Bijnor within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlord without furnishing any security within two months from the date of deposit. In case the petitioner fails to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.

Petition Dismissed.

Fareed Ahmad v. Vth Additional District Judge, Bijnor

Structured Summary of the Opinion (Rakesh Tiwari, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Tenant-Petitioner (Appellant)'s Arguments

Respondent-Landlord's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Fareed Ahmad v. Vth Additional District Judge, Bijnor

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