RAIS AHMAD Vs. MOHD.ZAHOOR

JUDGEMENT

(1.) Heard learned Counsel for the parties and perused the record. Brief facts of the case are that the plaintiff-petitioner filed a suit before Judge Small Causes Court, Allahabad in respect of House No. 224 Nakhas Kona, Allahabad, arraying Mohd. Zhoor and Mohd. Ismail as defendant in the suit. It was stated in the said suit that previously one late Haji Wali Mohd. father of the defendant and son of Late Buddhan Das was the tenant of the aforesaid shop at the rate of 100/- per month who was also liable to pay water tax to the extent of 1/4 share in addition to the rent as required under section 7 of the U.P. Act No. 13 of 1972. After the death of Late Hazi Wali Mohd. sometimes in March, 1992 his heirs i.e., defendant of the suit came in possession of the shop. The stand of the plaintiff Late Hazi Wali Mohd. at the time of his death was that he was in arrears of rent since 1.1.1992 and thereafter his heir i.e., the present defendant who did not pay any rent and water tax up to 19.3.1993. Accordingly, he was served with a notice in the last week of March, 1993 demanding the arrears of rent and termination of the tenancy, but the respondent neither paid any rent nor vacated the shop in question within the time stipulated in the notice, therefore, the suit for recovery of arrears of rent and ejectment was filed in the Court of Judge, Small Causes at Allahabad which was numbered as Suit No. 128 of 1993. The suit was contested by the defendant by filing written statement denying their liability of any arrears of rent @ 100/- per month which was admitted by the defendant. Receipt of the notice was also not denied but the same was pleaded to be invalid and it was pleaded by the defendant that plaintiff alone is not the landlord but other heirs namely two sons and daughter and widow of late Afjal Hussain father of the plaintiff were also co-landlord.

(2.) The Trial Court while dismissing the suit by order dated 21.9.1995 held that the defendant of the suit had deposited all the rent on the first date of hearing. Accordingly, issue Nos. 3 and 6 were decided and with regard to issue No. 5 it was held that the plaintiff failed to prove that "docchhatti" was constructed without permission of the plaintiff and that construction had diminished the utility of the shop in question. Subsequently, the landlord-petitioner preferred revision under section 25 of the Provincial Small Cause Court Act which was dismissed by the Additional District Judge, Court No. 13, Allahabad on 2.2.2007 holding that notice served upon the defendant of the suit was invalid since the same was not served on behalf of all the landlord.

(3.) Aggrieved by the aforesaid order, the petitioner has filed the present writ petition challenging the validity and correctness of the order dated 2.2.2007 as well as order dated 21.9.1995 passed by Judge, Small Causes Court, Allahabad on the ground that the finding recorded by the Revisional Court are against the evidence on record. It is stated that by the judgment and order dated 2.2.2007, the Revisional Court has taken erroneous view with regard to payment of water tax and has also erroneously and illegally held that the notice served upon the defendant of the suit was in valid since the same was not served on behalf of all the landlord. It is also submitted by the petitioner that the Revisional Court while confirming the order of the Court below has committed illegality to the effect in holding that the tenant had deposited the entire rent before institution of the suit and the conclusion drawn by him was that the plaintiff-petitioner has not been able too prove receipt of payment of water tax for granting benefit of section 20(4) of the Act to the tenant.