SUNIL KUMAR VERMA Vs. DEVENDRA PRAKASH BANSAL

JUDGEMENT

(1.) This writ petition has been filed for quashing the order passed by respondent dated 6.9.2008 (Annexure 15 to writ petition) and order dated 2.3.2009 (Annexure 17 to writ petition).

(2.) The facts arising out of present writ petition are that dispute relates to a shop situated in Mohalla Kajijadgan, Qasba and Tehsil Chandpur, District Bijnor. The defendant-petitioner is a tenant on monthly rent of Rs. 425/-. The shop in dispute is under tenancy for more than 30 years. Initially rent was Rs. 145/- but subsequently it has been enhanced to Rs. 425/-. There is no dispute to this effect that plaintiff-respondent No. 1 is the landlord. On 3.1.2007, a notice was issued by respondent No. 1 with an averment that defendant-petitioner has committed default in payment of rent from 12.2.2004 to 11.4.2006 amounting to Rs. 14,450/- and further has sublet the aforesaid shop to his brother Sri Rakesh Kumar Verma, respondent No. 2, hence he is liable for eviction from shop in dispute. In order to create a ground for eviction, plaintiff-respondent had been refusing to receive rent from petitioner. In that circumstances, petitioner after making an application deposited rent under Section 30(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The said application was registered as Misc. Case No. 73 of 2006 and on being issued notices, respondent-landlord appeared and stated that he has never refused to accept rent and said to have been sent him through money order and he was still ready and willing to accept rent and to issue rent receipt. On the aforesaid statement the application was rejected by order dated 15.9.2006. Before giving notice in question, plaintiff-respondent No. 1 has served another notice dated 23.9.2006 through which tenancy of petitioner has been determined on account of non-payment of rent. After receiving of notice, a reply refuting the allegations made was done and it was specifically stated that there is no default on the part of petitioner as money-orders were refused by landlord sent by petitioner time and again. A reference to proceedings under Section 30 was also made. It was also stated that there was no sub-letting. Sri Rakesh Kumar Verma was engaged in the business of supply of jewellery items and in this connection used to visit the shop of defendant-petitioner. Petitioner again tried to pay rent due up-to-date through money orders but it was refused. A suit was filed which was numbered as SCC Suit No. 6 of 2007 on the averment that defendant-petitioner has defaulted in payment of rent from 12.2.2004 to 11.12.2006 and has also sub-letted the shop in dispute to defendant-respondent No. 2. A written statement was filed and an application was made on 6.4.2007 depositing rent to the tune of Rs. 22,185/- for the purposes of claiming benefit under Section 20(4) of the Act No. XIII of 1972. The said amount was deposited on the aforesaid date. In the written statement filed by petitioner, a specific averment was made that he has never committed any default and he was sending rent through money-orders but after refusal, petitioner tried to deposit it under Section 30(1) of the Act but on the statement made by respondent-landlord that he is ready to accept rent, the application was dismissed. But anyhow, claiming benefit of Section 20 Sub Section 4, the amount has already been deposited. Respondent No. 2 was also engaged in the business of manufacturing and selling of jewellery items and in this connection he often visits the shop of petitioner, therefore, there cannot be any presumption that it has been sub-let to respondent No. 2. Petitioner is an exclusive owner of shop in dispute and doing business. Certain photographs has been filed by respondents showing therein that respondent No. 2 is sitting in the shop and two cash memos of M/s Rakesh Jewellers have been filed. Petitioner denied the factum of this fact that photographs which have been filed does not belong to disputed shop. Nor has the petitioner ever put any Board in the name of Meerut Jewellers thereof. Petitioner has also brought on record an application duly supported by his affidavit bringing therewith on record photographs which was also result of trick photography and which showed Sri Man Mohan, son of plaintiff- landlord to be sitting in the shop in dispute. In such situation, petitioner wanted to prove that such photographs cannot be an exclusive prove for the said purpose.

(3.) It has been submitted that in support of the plaint case plaintiff Sri Devendra Prakash Bansal did not examine himself and instead in his place his son Sri Manmohan Bansal was examined who alleged himself to be a power of attorney and only his statement was recorded as P.W.-1. Therefore, in view of Section 120 of the Evidence Act, the statement of son who deposed as P.W.-1 cannot be taken into consideration. Petitioner also in support thereof has produced himself as D.W.-1 and his brother as D.W.-2 and one Sri Anil Kumar as D.W.-3 and Sri Chandra as D.W.-4 who deposed and supported the case of petitioner. Sri Rakesh Kumar Verma, respondent No. 2 has clearly deposed before the Court as D.W.2 as he never did any business from the shop in dispute and supported the case of petitioner that petitioner is doing business from the shop in question but in spite of aforesaid fact though it was fully established from the record, the Judge Small Causes Court vide its judgement and order dated 6.9.2008 (Annexure 15 to writ petition) has decreed the suit. Petitioner feeling aggrieved by the judgement and decree filed a revision but revisional court without considering these questions raised by petitioner has dismissed the revision vide its judgement and order dated 2.3.2009. Hence, the present writ petition.