TMI Blog2021 (2) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... was liable to be paid as electricity charges by the tenant. The trial court has given finding of fact on the basis of actual photographs of the building produced before him that there was no space on the ground floor near the stair case and toilet for construction of cabin as alleged to have been promised to the tenant by the landlord and for agreement by the tenant to pay ₹ 2,000/- as rent for a cabin to be so constructed. Service of notice - HELD THAT:- The relevant extract of which has been filed at page-86 to page 87 of the application for interim relief. It finds that there is no contention raised by the tenant before the learned trial court that notice was not served as it was sent on a wrong address; rather the tenant had stated that the notice was not served upon him because he may have been out of station as he worked as a Recovery Agent also for the Bank of Baroda and had to undertake certain recoveries for the Bank in different towns as well. Moreover, in the plaint also, as has been pointed out by learned counsel for the respondent, the same address of the tenant has been mentioned as was mentioned in the legal notice, and it is improbable that summons were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant had filed a Small Causes Court Revision No.33 of 2020, which was taken up by this Court and disposed of by a detailed order on 19.10.2020. The order passed by this Court on 19.10.2020 is being quoted herein below:- Heard learned counsel for the parties. This revision has been filed challenging the order dated 25.8.2020 passed by the Special Judge, P.C. Act/Additional District Judge, Lucknow in SCC Suit no.59/2016. It has been submitted by Sri Devendra Mohan Shukla, who appears for the revisionist that the learned court below has failed to appreciate the statement of landlord and also of witness that make out that the revisionist had given security money of ₹ 9000/- and that petitioner had stopped giving rent only when certain repairs that were needed badly over the rented property carried out by him and the landlord told him to deduct the amount of repairs from the rent that was admitted between the parties. It is the case of revisionist that the rent of the property in question which is situated on first floor of a building situated on the Nishatganj main road for four rooms is ₹ 3000/- per month and for the same building Nagar Nigam as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to recall the order dated 19.10.2020 and hear the matter afresh. 3. The aforesaid recall/ review application was taken up on 10.11.2020 by this Court and it was found that the order dated 19.10.2020 had been passed on merits and there was no provision under the High Court Rules for recall of order passed on merits. The application was treated as a review application and notices were issued to the respondent. 4. I have heard learned counsel for the revisionist and the review applicant Sri Devendra Mohan Shukla and Sri Danish Rasheed, learned counsel for the respondent. 5. Learned counsel for the review applicant assails the order passed by the Additional District Judge dated 25.08.2020 in S.C.C. Suit No.59 of 2016: Raghav Ram Gupta Vs. Shiv Ram Tiwari. 6. The facts relevant for decision of the case are given in brief as follows: 7. The respondent had filed a S.C.C. Suit No.59 of 2016 for arrears of rent and eviction of the revisionist from house no.498/207/2/Lakshmi Bhawan between Nishatganj Lucknow stating therein that the building in question is a commercial building and facing Indira Bridge/ Fly over on one side and Nishatganj railway line on the other side situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed upon by the parties that the said amount may be adjusted in rent to be later paid for the space by the revisionist. It was alleged that since no construction was done as promised by the landlord, nor any furnishing/ repair work done on the first floor of the tenanted premises, the revisionist carried out repair/ furnishing work on his own. The photocopies of certain bills of items purchased for such repair and furnishing work were filed as documentary evidence. It was further alleged that electricity as promised was not provided by the landlord and the revisionist managed to get an independent connection from the distribution company and he paid electricity bills on his own. It was further alleged that the revisionist had deposited ₹ 89,600/- as arrears of rent and interest and cost in the court in terms of Order XV Rule 5 of C.P.C. on the date of first hearing. 9. In his replication, the landlord seriously disputed the contention made in the written statement by the revisionist and referred to two receipts issued by him, namely, receipt no.831 and 832 on 15.11.2015 only for ₹ 8,000/- deposited as rent for the month of November, 2015 and ₹ 9,000/- deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3 was related to whether on the basis of such default in payment of rent, the plaintiff was entitled to the reliefs sought by him from the Court, of eviction of tenant and decree for payment of arrears of rent; and issue no.5 was related to whether legal notice demanding arrears of rent and terminating tenancy was served upon the revisionist. 12. The trial court after consideration of oral and documentary evidence decided all issues in favour of the plaintiff and directed that the revisionist should pay a sum of ₹ 8,000/- as arrears of rent for each month with effect from December, 2015 up to August, 2016 and with effect from September, 2016 onwards till the date of vacation of the tenanted premises, damages to the tune of ₹ 8,000/- per month. The tenanted premises were to be vacated within two months from the date of the judgment and order dated 25.08.2020. 13. Initially when the matter was argued by learned counsel for the revisionist, learned counsel for the revisionist had laid emphasis on the fact that a coaching institute was being run on the second floor of the same building on 1800 sq. ft. area for which the rate of rent of ₹ 18,000/- per month had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is assertion. 16. The learned counsel for the revisionist has placed reliance upon a judgment of a Coordinate Bench of this Court rendered in S.C.C. Revision No.364 of 2014 on 18.01.2017, namely, Anil Kumar Verma Vs Smt. Manju Gupta, to say that when there was no documentary evidence in the form of rent agreement or a rent note or a rent receipt, the learned trial court was required to assess the oral evidence and to correctly appreciate the same and then give its finding regarding rate of rent. Learned counsel for the revisionist has placed reliance upon the observations made by the Coordinate Bench as follows:- No doubt as to what was the agreed rate of rent for the premises in question is a question of fact but a finding on a question of fact must be returned by appreciating the evidence that has been led by the parties and not by simply narrating what evidence has been led. A finding returned after consideration of all relevant evidence on question of fact is not ordinarily to be interfered with by a revisional court unless the same is perverse or is based on taking inadmissible evidence into consideration or is based on misreading of evidence. But for there to be a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dlord to prove that the said notice was served. Learned counsel for the revisionist alleged that the legal notice was sent on the old address of the revisionist and not on his current address i.e. the building in question where besides running a Customer Care Center for Bank of Baroda, the revisionist also resided. 20. Learned counsel for the respondent on the other hand has pointed out that landlord had submitted the original copies of the speed post receipt and the tracking report before the learned trial court which showed delivery of notice and the onus was upon the defendant to prove that such legal notice was never served. Learned counsel for the respondent has also pointed out from the statements made during the examination-in-chief and cross-examination of the landlord and the defendant before the learned trial court that it had not been disputed that the tenant had taken three large rooms and one small room ad-measuring 22x12 feet, 20x10 feet, 12x10 feet and 8x6 feet on rent on a commercial building situated in the main Nishatganj market next to the Indira Bridge, Faizabad Road. 21. Learned counsel for the respondent has also pointed out the finding recorded by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, the learned trial court has referred in detail to paragraph-10 of the plaint wherein the plaintiff stated clearly that legal notice dated 11.08.2016 was sent through speed post and was served upon the defendant. He has found from the written statement of the defendant that although there was a bald denial of receipt of such notice, there was no further pleading in the additional pleas. In the oral statement and in the cross-examination, no doubt the tenant had stated that he was living on a different address and the notice was sent on a different address and was therefore not served, there was no such pleading made in the written statement and hence the trial court rejected the said oral statement as it could not be given any credence, in the absence of any pleading to support such assertion. Mere denial of receipt of notice, when the Post Office tracking report in original was filed by the plaintiff, was rightly not believed by the trial court. Regarding the question of service of notice under Section 106 of the Transfer of Property Act; the said Section requires only that notice to quit has to be sent either by Post to the party or be tendered or delivered personally to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terfere in Revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed upon the wrong shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the court can interfere. But, in my opinion, the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at. 28. The question regarding the scope of a Revision before the High Courts in various Rent Control legislations in different States was considered by a Constitution Bench of Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs Dilbahar Singh 2014 (9) SCC 78; the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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