Court No. - 10 Case :- S.C.C. REVISION No. - 46 of 2023
Revisionist :- Shiv Shankar Yadav
Opposite Party :- Namdhari Dharmsala Gurudwara Committee
Counsel for Revisionist :- Dharm Vir Singh,Sharad Tiwari
Counsel for Opposite Party :- Ram Bahadur Singh
Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the revisionist, learned counsel for the landlord/opposite party on admission of the revision and perused the record of revision available on Board.
2. The landlord has filed suit for eviction, arrears of rent and damages against the tenant with an averment that the plaintiff is the religious institution and the defendant is a tenant of the shops, which are constructed within the premises of Gurudwara. It is further averred that the tenant has taken two shops on rent since last 37-38 years. Up to June 2006, the tenant has paid the rent at the rate of Rs. 1,000/- per mensem for each shop totalling Rs. 2,000/-, however, since July, 2006, rent has been enhanced to the tune of Rs. 1500/- per mensem for each shop totalling Rs. 3,000/- for two shops. Since July, 2006, after enhancement of the rent, the tenant has not furnished his rent to the landlord. The plaint further alleges that a registered notice dated 4.12.2018 has been sent to the tenant under section 106 of Transfer of Property Act (in brevity, TP Act). Even after service of notice, the tenant has not vacated the shop in question. The plaintiff has sought relief for eviction and arrears of rent for the last three years i.e. since January, 2016 to December, 2018 and also for damages for the use and occupation of the shop in question from January, 2019 till delivery of possession thereof.
3. In deciding the issue No. 1, learned trial court has come to the conclusion that Ranjeet Singh is the Chairman/Head of Namdhari Dharmsala Gurudwara Committee (plaintiff), therefore, he has locus to file a suit on behalf of the plaintiff. In deciding the issue No. 2, it has been held that the tenancy of the tenant/revisionist is valid at the rate of Rs. 250 per month for each shop totalling Rs.
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500/- for two shops. In deciding the issue No. 3, learned trial court came to the conclusion that the building belongs to the public religious institution, therefore, Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in brevity, ' the Act, 1972') is not applicable under the exemption as enunciated under Section 2 (bb) of the Act, 1972. In deciding the Issue No. 4, learned trial court found the tenant/revisionist defaulter in payment of rent to the landlord. The plea raised on behalf of the tenant that he has throughout deposited rent in the court under section 30 (1) of the Act, 1972 has been negated by the trial court on the ground that once the Act, 1972 is not applicable in the instant matter, the tenant cannot be given protection under the aforesaid Act and even after depositing the rent under the said Act it cannot be treated to be valid payment. So far as service of notice is concerned, in deciding issue No. 5, the trial court has recorded a categorical finding that registered notice dated 4.12.2018 (paper No. 10C/1 to 10C/3) has been duly sent to the tenant at the valid address. The receipt of registered post (paper No. 11C) has also been filed to prove the dispatch of the registered letter at the correct address. Learned trial court has further observed that after 30 days, the registered notice is deemed to have been served at the correct address. The defendant has failed to demonstrate anything adverse to prove that notice was not properly served upon him. Learned trial court came to the conclusion that the tenant is liable to pay rent at the rate of Rs. 250/- for each shop total Rs. 500/- per mensem for two shops from July, 2016 to December 2018 and thereafter, since 10.1.2019, the tenant is liable to pay additional Rs. 1,000/- as damages per mensem till the delivery of the possession of the shops in question.
4. Learned counsel for the appellant has advanced two fold submissions; first, with regard to the pecuniary jurisdiction of the court to the effect that once the Judge Small Causes Court/Additional District Judge came to the conclusion that the rent is only Rs. 250/- for one shop totalling Rs. 500/- per mensem for two shops, it should have referred the matter before the court competent having pecuniary jurisdiction to try the case; second, submission is that the case filed for eviction and arrears of rent on behalf of the landlord/plaintiff was barred under the principle of res-judicata inasmuch as SSC Suit No. 31 of 2007 filed on behalf of land for eviction and arrears of rent was already decided by judgment and order dated 14.9.2012.
5. So far as submission qua case being barred under the principle of res-judicata is concerned, learned trial court, in deciding issue
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No. 6, has given categorical finding that the previous suit was ordered to be dismissed in default vide order dated 14.9.2012. It is further observed that the subsequent suit was filed on the basis of the subsequent notice dated 4.12.2018 which can be treated as fresh cause of action with respect to the shop in question, therefore, it cannot be said that order passed in the previous suit, which was dismissed in default, creates a bar of res judicata for the subsequent suit. I did not find any illegality in the finding returned by the learned trial court in deciding the issue No. 6. In the present suit, the relief has been sought for the payment of arrears of rent for the period of last three yeas i.e. from January, 2016 to December, 2018 whereas the previous suit was filed in the year 2007, which was ordered to be dismissed in default vide order dated 14.9.2012. In this backdrop of facts of the case, it cannot be said that the subsequent suit is barred under the principles of res judicata.
6.So far as the another submission qua pecuniary jurisdiction is concerned, the learned Judge Small Causes /learned Additional District Judge has not committed any error in deciding the case on merits. Initially suit was filed for the recovery of arrears of rent to the tune of Rs. 1,08,000/- (one lakh and eight thousand) mentioning the rent of two shops to the tune of Rs. 3,000/- per mensem. In deciding the issue No. 2, the learned trial court came to conclusion that the rent of one shop is only Rs. 250/- per mensem, therefore, rent of two shops will be Rs. 500/- per mensem. Perusal of written statement (annexure No. 2 to the affidavit filed in support of stay application along with the memo of revision) reveals that no such plea has been taken at the first instance of the litigation with regard to the jurisdiction of the Court. There is no case of the plaintiff that the pecuniary jurisdiction was on the higher side, therefore, the Additional District Judge has inherent lack of jurisdiction to decide the suit. In the given circumstances of the present case, suit was filed showing the rent at the higher side, however, in deciding the issue No. 2, the trial court came to the conclusion that the rent is less than the amount claimed by the plaintiff i.e. to the tune of Rs. 250/- per mensem for each shop. Even otherwise, in the light of the facts as mentioned in the present matter, it cannot be said that there is any consequential failure of justice due to the adjudication made by the learned Additional District Judge in the matter or the learned Additional District Judge has inherent lack of jurisdiction to pass the order in a case for eviction, arrears of rent and damages.
7. There is no case of the tenant/revisionist that the finding
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returned by the trial court with respect to the service of notice under section 106 of the TP Act, as decided in issue No. 5, is perverse. The learned trial court has returned a definite finding that notice under section 106 of TP Act was duly sent to the tenant by registered post dated 4.12.2018 on the correct address of the tenant. The receipt (paper No. 11C) of the registered letter filed by the plaintiff has been considered as well by learned trial court, who has rightly treated the service of notice sufficient upon the tenant. Learned counsel for the revisionist has failed to substantiate submissions as advanced by him. No manifest error has been pointed out in receipt of notice under section 106 of TP Act.
8. In this conspectus as above, I did not find any illegality, perversity or ambiguity in the impugned judgment passed by the trial court in order to exercise revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887. There is no case of the revisionist/tenant that any particular evidence has been left to be considered by the trial court, which can affect the merits of the case or there is any likelihood of causing any miscarriage of justice to the revisionist due the order impugned.
9. Resultantly, the present revision, being devoid of merits and misconceived, is dismissed with no order as to the costs.
Order Date :- 24.4.2023 vinay
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