HARISH LAL SAH Vs. DISTRICT JUDGE

JUDGEMENT

(1.) BY means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner/landlord has sought writ in the nature of certiorari quashing the order dated 27.2.1999, passed by learned District Judge, Almora in Civil Revision No: 19 of 1997, whereby the order dated 12.12.1997 passed by Judge, Small Cause Court/Civil Judge (Senior Division), Almora, in S.C.C. Suit No. 3 of 1995 was set aside.'

(2.) BRIEF facts of the case, as narrated in the writ petition are that, the petitioner instituted a S.C.C. Suit No. 3 of 1995 against respondent No. 2, Chandra Nath Sah (tenant) for recovery of arrears of rent and eviction from the shop in question which was part of house No. 207, Nanda Devi Marg, Lala Bazaar, Almora. It was alleged that petitioner along with Jagdish Lal Sah, Kailash Lal Sah and Deep Lal Sah, was a co -owner of the said house. Later, the shop in question came in the share of petitioner (plaintiff) in the family partition. Respondent No. 2, Chandra Nath Sah was tenant in said shop on rent at the rate of Rs. 66 per month, who contested the suit on the ground that Sri Kailash Lal Sah, a cousin brother of the plaintiff was owner to the extent 1 feet x 5 inches in the shop in question. He further pleaded that he had already paid rent to Kailash Lal Sah, the landlord. Denying the fact that he committed default in payment of rent, if is pleaded by respondent No. 2 (tenant) that his tenancy does not stand terminated by the notice served by the plaintiff. Learned trial court after recording the evidence, and hearing the parties, decreed the suit for arrears of rent and ejectment of the defendant vide its order dated 12.12.1.997 (copy Annexure -3 to the writ petition). Aggrieved by which, the defendant (respondent No. 2) filed a Revision No. 19 of 1997 before the District Judge, Almora, who decided the same vide his order dated 27.2.1999 (copy Annexure -4 to the writ petition), whereby order of the Small Cause Court was set aside and suit of the petitioner (plaintiff) was dismissed. Hence, this writ petition by the landlord on the ground that the impugned order passed by the revisional court is illegal. It is further alleged by the petitioner (plaintiff) that he was the lone landlord of the house in question and the learned District Judge, Almora, has erred in law in wrongly re -appreciating the evidence and corning to the different conclusion as against what has been held by the learned trial court. It is further alleged that the rent deposited under Section 30 of the U. P. Act No. 13 of 1972 was wrongly treated valid payment of rent by the revisional court.

(3.) RESPONDENT No. 2 (defendant) filed the counter -affidavit before this Court, in which it has been admitted that the suit for recovery of arrears of rent and ejectment was instituted by the petitioner (plaintiff) against the answering respondent, which was decreed by the trial court. It is further admitted that the respondent No. 2 filed revision against said decree which was allowed by the respondent No. 1 and the suit was dismissed. However, it is denied that revisional court has erred in law in appreciating the evidence. It is reiterated that Kailash Lal Sah (D.W. 2) stated before the Court that he is the sole owner of the property in question. It is further slated that the rent was accepted by Kailash Lal Sah. It is also stated in the counter -affidavit that the defendant -respondent did not commit any default in payment of rent, as more than the rent due, was deposited by him.