AKHTAR ALI Vs. WASLUDDIN

JUDGEMENT

(1.) This revision purporting to be under Sec. 25 of the Provincial Small Causes Court Act has been' brought for quashing the judgment and order dated 29.1.1991 passed by the Judge, Small Causes/1st Additional District Judge, Meerut in S.C.C. Suit No. 85/85, Wasluddin Vs. Akhtar Ali , whereby decreeing the suit brought by the plaintiff (who is herein the opposite party) for the ejectment of the defendant (who is herein the revisionist) from the disputed building and also for the recovery of arrears of rent, mense profit and damages for the use and occupation @ Rs. 300.00 per month till to the delivery of the possession. It has been contended by the defendant that the trial Court has not properly evaluated the evidence on record and erred while playing the role of handwriting and fingerprint expert while ascertaining the genuineness of the receipts filed on behalf of the defendant. The comparison in the signatures so made by the trial was not correct as in the course of time due to old age of the defendant variation in his signatures may take place. The defendant was in occupation in the shop in dispute from they year 1976 and in that regard the receipts were also filed by the defendant but they were wrongly discarded by the trial Court and on that basis it is also said that the provisions of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) were very much applicable to the building in question. It has further been contended that the defendant has not committed any default in making the payment and further the notice and the suit both are said to be vague. Further after the service of notice the rent was accepted by the plaintiff and so the notice has also been waived off. This revision was resisted by the learned Counsel for the plaintiff/opposite party. Emphasis has been laid that the trial Court has discussed each and every aspects on the basis of the evidence adduced by the parties and thereafter came to the rightful conclusion. The finding so recorded by the trial Court cannot be disturbed on the flimsy grounds taken in the revision.

(2.) In order to facilitate the disposal of this revision a brief resume of the facts may be made. The suit for ejectment and also for the recovery of the arrears of rent and damages was brought by the plaintiff with the contentions that the disputed shop No. 81/1 situates on Lisari Road, Meerut was let out to the defendant at the monthly rent of Rs. 300.00. The shop was constructed in the year 1985 and the provisions of the Act No. 13 of 1972 were not applicable to it. The tenancy of the defendant was terminated by giving the notice dated 16.8.1989 as contemplated under Sec. 106 of the Transfer of Property Act (the Act). After service of the notice the defendant had not vacated the shop in dispute hence the suit.was brought. The defendant in his written statement emphasised that initially he was the tenant of the disputed shop at the monthly rent of Rs. 250.00 from 1976. From March 1988 it was enhanced to Rs. 300.00 per month. The tenancy was to commence from 16th day of every month and ended on 15th day of the following month. On that basis the validity of the notice has also been challenged. It has further been contended that after the receipt of the notice the rent of the shop was sent to the plaintiff through money order dated 13.11.1989 but that was refused by him. Thereafter the defendant contacted the plaintiff who accepted the rent up to the period from 16.9.1989 to 15.10.1989 and for which the plaintiff issued receipt. The notice is also said to have been waived by the plaintiff after the receipt of the rent. The provisions of the U.P. Act No. 13 of 1972 are also said to be very much applicable to the disputed building. The learned trial Court after taking into consideration the evidence on record came to irresistible conclusion that the provisions of the U.P. Act No. 13 of 1972 were not applicable to the building in dispute and the defendant had committed default in making the payment of the rent. The notice was also construed to have not been waived; resultantly the decree for the arrears of rent and damages etc. was passed.

(3.) Much emphasis was laid by the learned Counsel for the defendant/revisionist that from the materials on record (both oral and documentary) it is clear that the disputed shop was constructed in the year 1976 and since then the defendant/revisionist was in its occupation. In that regard reliance has been placed on the rent receipts (Exhibit A1 dated 11.4.1976 and Exhibit A2 dated 20.10.1976) so as to show that the shop in question was very old and the defendant was in occupation in that shop the year 1976. These exhibits (rent receipts) including that of the signatures on it were denied by the plaintiff. The defendant revisionist simply examined himself and there was no evidence to substantiate the version of the plaintiff. To the contrary the trial Court at its own complained the signatures of the plaintiff on the receipts which are said to have been executed by the plaintiff in the year 1976. The trial Court on the basis of the evidence came to the conclusion that the signatures alleged to have been made by the plaintiff on these receipts do not tally. It is contended that the trial Court should not have played the role of the handwriting and fingerprint expert. In that situation when the evidence was not adduced by the defendant so as to show the genuineness of the signatures on the rent receipts the examination of the signatures so made by the trial Court cannot in any way be said to be unjust. Burden was on the defendant to have proved the signatures or the execution of the receipts and that burden could not be discharged by him. The finding of fact recorded by the trial Court to the effect that these receipts were not executed by the plaintiff does not require any interference. Reliance may also be placed on the principle of law laid down in the cases of (i) Baboo Lai Vs. Dakhini Devi, AIR 1978 Alld. 547 , (ii) Macline Ayyoppa Naicher Vs. Seth Manghraj Udhavdas, AIR 1969 SC 1344 , (iii) P. Udayane Devi Vs. V.V. Rajeshwar Prashad Rao and others, AIR 1975 SC 1357 and (iv) Sheonandan Vs. State of Bihar, 1987 (1) SCC 288 .