UNUS @ YUSUF IBRAHIM Vs. DATTATRAYA MALKAJI BAKARE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the Petitioners challenge the order dated 07.01.1984 passed by the VIth Extra Assistant Judge, Pune in Civil Appeal No.705 of 1982. That appeal was filed by the respondent challenging the Judgment and Order dated 15.02.1982 passed by the IVth Additional Judge, Small Causes Court, Pune in Civil Suit No. 666/79. That Suit was filed by the present respondents claiming therein, that he is the owner of house No.2, Khadki, Pune-3, and that, petitioners are the tenants of four rooms in that house. The landlord sought decree of eviction against the tenant on the ground that the tenant has committed default in payment of rent.

(2.) THE Trial Court found that the notice issued under sub-section (2) of Section 12 of the Act, by the landlord to the tenant demanding arrears of the rent was not served on the tenant, and therefore, in the absence of compliance of this mandatory requirement of Section 12, the Trial Court recorded finding against the landlord and dismissed the suit. In the Appeal filed by the landlord, the Appellate Court found that the service of the notice was valid. Thus, the Appellate Court reversed the finding recorded by the Trial Court, recorded finding in favour of the landlord, allowed this appeal and decreed the suit passing a decree of eviction against the tenant. It is this Judgment of the Appellate Court which is challenged in the present petition.

(3.) PERUSAL of the judgment of the Appellate Court shows that the Appellate Court has not referred to the evidence of the tenant. The Appellate Court has not considered the statement on oath made by the tenant that at no point of time, the postman approached him with the envelope. The Appellate Court also seems to have accepted the case of the tenant that from 30th January, 1979 to 05.02.1979, he was out of town. Though the Petitioner was in town from 05.02.1979, perusal of the endorsement on the envelope shows that the postman could not find the tenant on 05.02.1979, as also, on 06.02.1979, when the tenant was available in town. In my opinion, failure of the Appellate Court to refer to the testimony of the tenant that the postman, at no point of time, approached him with the envelope, and failure of the Appellate Court even to refer to the fact that the postman who is supposed to have tendered the envelope, has not been examined as a witness shows non-application of mind on the part of the Appellate Court. Perusal of the judgment of the Trial Court shows that the Trial Court had dealt in detail with both these aspects of the matter. It is now a settled law that a finding recorded by the Trial Court is not to be lightly interfered with, by the Appellate Court, and in no case, the Appellate Court can interfere with the finding recorded by the Trial Court, without giving reasons for doing so. I do not find any reasons given by the Appellate Court for holding that the findings recorded by the Trial Court are in any way erroneous. Thus, in my opinion, the judgment of the Appellate Court suffers from non-application of mind, it is liable to be interfered with, in my jurisdiction under Article 227 of the Constitution of India.