The Commissioner of Income Tax-I vs. Sri Ashven Datla

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Civil Revision No. 84 of 2012

Punjab Sindh Kshetra, Rishikesh …….revisionist/defendant

versus

Smt. Chunia Devi and others

…..respondents /plaintiff

Mr. V.K. Kohli, Senior Advocate assisted by Ms. Rajni Supyal, Advocate for the revisionists. Mr. J.P. Joshi, Senior Advocate assisted by Mr. Sushil Vasistha, Advocate for the respondents.

With

Civil Revision No. 111 of 2012

Smt. Chunia Devi & others ...…revisionists/plaintiff

versus

Punjab Sindh Kshetra Rishikesh …..respondents/defendants

Mr. J.P. Joshi, Senior Advocate assisted by Mr. Sushil Vasistha, Advocate for the revisionists. Mr. V.K. Kohli, Senior Advocate assisted by Ms. Rajni Supyal, Advocate for the respondent.

Hon’ble Lok Pal Singh, J.

Aforesaid civil revisions under Section 25 of the Provincial Small Cause Court Act 1887 (hereinafter referred to as ‘the Act’) are directed against the impugned judgment and decree dated 17.09.2012 passed by Judge Small Cause Court/1st Additional District Judge, ishikesh in SCC Suit No. 28 of 2007 “Punjab Sindh Kshetra Rishikesh Vs. Smt. Chunia Devi and others”.

Brief facts of the case are that the revisionist- plaintiff Punjab Sindh Kshetra Rishikesh instituted the aforesaid suit against defendant-Smt. Chunia Devi and others, inter alia, on the ground that revisionist/plaintiff is a charitable trust registered under the Societies Registration Act 1860. Shri Raghuveer Lal Ghai is Manager/Trustee/Power of Attorney Holder of the said Trust. The predecessor of the defendants Late Tara Chand was inducted as tenant at Bhawan No.9, Advertand Marg, Rishikesh on property nos. 131 to 133 on 01.07.1956 on rent at the rate of Rs. 10 per month, as also on property nos. 135 & 136 on 01.06.1973 on rent at the rate of Rs. 10/- per month. The rent receipt of the property in question were issued separately. On the demise of Shri Tara Chand his legal heirs (defendants) become joint tenant over the property in dispute. The tenants also raised illegal construction and encroached upon some part of the land in question in the month of August-2007. Thereafter, a legal notice was issued by the plaintiff. After expiry of 30 days of notice, when defendants-tenants failed to pay the rent of the property in dispute to the plaintiff, the tenancy of the defendants was terminated by the plaintiff. Despite the demand of rent and other dues, the tenants did not pay the same to the plaintiff/landlord then the plaintiff/revisionist was constrained to file the suit against the tenants. 3.

Defendants/tenants put their appearance and filed written statement (paper no. 13C) stating therein that they are tenants in the said property however other averments of the suit were denied by them. It is stated that no rent is due towards the defendants. It is further stated that they have not raised any construction over the suit property, therefore, their tenancy is protected under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘Act No. 13 of 1972’). It is also contended that the

plaintiff wants to let out the property in question on higher rent, therefore, the suit has been filed by it. It is also stated that the suit is not legally maintainable as Shri Ghai has no authority to institute the Suit. It is also stated that the rent is not due upon the defendants and on receipt of the notice they send the rent to the plaintiff through money order, but the same was not received by him. Thereafter, they deposited the amount of rent under Section 30 of U.P. Act No. 13 of 1972. 4.

Plaintiff filed replica against the written statement filed by the defendants. 5.

On the pleadings of the parties, learned trial court promulgated the following issue: (i) Whether the respondents are at fault in paying the rent of property in dispute? if yes, its effect? (2) Whether the respondents have raised illegal constructions, changes or addition in the property in dispute and whether they are liable to be evicted from the property in dispute? (3) Whether the respondents are entitled to get benefit under U.P. Act No. 13 of 1972? (4) Whether the plaintiff has a right to get Rs.80,000/- as damages from the respondents?

(5) Relief ? (6) Whether the tenancy of the respondents is protected under the provisions of General Clauses Act. (7) Whether the respondents are entitled to get the benefit under Section 20 (4) of U.P. Act No. 13 of 1972. (8) Whether the suit is filed by unauthorized person? If yes, its effect?

The plaintiff adduced the documentary evidence before the trial court including the copy of the notice 6C, copy of receipt 7C, copy of notice dated 05.09.2007 8C, copy of power of attorney 9C/5 to 9C/5, affidavit of Raghuveer Lal Ghai 33C, copy of memorandum of the Association 33C/3, certificate of renewal of the society 33C/13. In oral evidence, the affidavit of examination-in-

chief of Shri Raghuveer Lal Ghai was filed and he was examined as PW1, affidavit of examination-in-chief of Om Parkash Sharma and Suresh Chandra Sharma were taken and they were examined as PW2 and PW3 respectively. The witnesses were cross examined by the defendants. Affidavit of examination in chief of DW1 Rajkumar was filed and he was examined as DW1. The defendants have filed copy of the tender whereby the rent was deposited. 7.

Heard learned counsel for the parties and perused the material available on record. 8.

Learned senior counsel appearing for the tenants would submit that this Court in exercise of revisional jurisdiction under Section 25 of the Act, this Court can exercises it jurisdiction akin to appellate court, therefore, in any case, if this Court is of the view that impugned judgment is erroneous, in such contingencies, this Court only can remand the matter to the trial court to decide the suit afresh in accordance with law. 9.

The submissions of learned counsel for the tenants is misconceived. In exercise of revisional jurisdiction under Section 115 of C.P.C., the revisional court can only exercise its jurisdiction, if it comes to the conclusion that the subordinate courts appear to have exercised a jurisdiction not vested in it by law; or had failed to exercise a jurisdiction so vested;, or acted in exercise of its jurisdiction illegally or with material irregularity, the revisional court may make such order in the case as it thinks fit but in absence of these three contingences, the revisional court should not interfere in the order passed by Subordinate Courts. Section 25 of the Provincial Small Cause Court Act 1887 is extracted below: “25. REVISION of decrees and orders of Courts of Small Causes.- The High Court, for the purpose of satisfying itself that a decree or order made

in any case 'decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.” 10. My view is forfeited by the judgment of Hon’ble Apex Court in the case of Shyam Lal Vs. Rasool Ahmed reported in (2002) 9 SCC 499. Relevant paragraph-4 of the said judgment is extracted below: 4. Lastly, it was submitted that the district court exercising revisional jurisdiction did not have jurisdiction to interfere with the findings of fact arrived at by the trial court. This submission is also liable to be rejected. Firstly, it was a revision preferred under Section 25 of the Provincial Small Causes Courts Act, the jurisdiction whereunder is not so limited as it may be under Section 115 of the Code of Civil Procedure. Secondly, as we have already pointed out the learned district judge had assigned convincing reasons for arriving at a finding different from the one arrived at by the trial court and on the material available on record the district judge though exercising revisional jurisdiction was fully justified in interfering with findings of fact arrived at by the trial court which overlooked the weighty relevant material available on record and clinching the issue.

revisional jurisdiction under Section 25 of the Act, the Court has to see that judgment passed by the Court below is according to law or not. If the Court comes to the conclusion that the judgment passed by subordinate court is not according to law, the revisional court has complete domain to hear the revision as an appellate court. Such powers are not confined as per the mandate of Section 115 of CP.C. The relevant paragraph nos. 7, 8 & 9 of the said judgment are extracted below: (7) The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done is second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under s. 115 of the Code of Civil Procedure. the High Court's power are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit. (8) The phrase "according to law" refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which s. 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit-is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". It stands to reason that if it was considered necessary that there should be a rehearing, a right of

appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal. (9) The section we are dealing with, is almost the same as s. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj (1) where the learned Chief Justice, dealing with s. 25 of the Provincial Small Cause Courts Act, observed: "The object of s. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does s.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 the 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 on 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. This observation has our full concurrence.” 12. Learned trial court while recording its finding on issue no.1 has held that the suit property was let out to late Shri Tara Chand. The defendants have contended that no

rent is due towards them and they tried to pay the rent earlier but the plaintiff denied to accept the rent then the defendants were constrained to deposit the rent under Section 30 of U.P. Act No. 1972. The receipt of the rent deposited in the Court from December, 2000 has been placed before the Court showing that rent upto 31 December, 2013 was deposited by the defendants. Trial court held that as the rent was deposited under Section 30 of U.P. Act No. 13 of 1972, the tenants/defendants have not committed any default in payment of rent and decided issue no. 1 against the plaintiff and in favour of the tenants/defendants. 13. Perusal of record depicts that the tenants deposited the rent under Section 30 of U.P. Act No. 13 of 1972 since December, 2000 and continued to deposit the rent under Section 30 of U.P. Act No. 13 of 1972. A demand notice was sent to the defendants on 07.08.2007 but the defendants did not pay or tender any rent to the plaintiff on its demand rather they continued to deposit the rent under Section 30 of U.P. Act No. 13 of 1972. 14. At this juncture, it would be apt to reproduce Section 30 of U.P. Act No. 13 of 1972, which reads as under: 30. Deposit of rent in court in certain circumstance. - (1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.

(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may like wise deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any competent Court or by settlement between the parties, continue to deposit the rent

that may subsequently become due in respect of such building.

(3) The deposit referred to in sub-section (1) , or sub-section (2) shall be made in the Court of the Munsif having jurisdiction. (4) On any deposit being made under sub-section (1) , the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the Court in that behalf. (5) On a deposit being made under sub-section (2), the Court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent Court or by a settlement between the parties, and the same shall be payable to such person. (6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in, whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2) .

room. However, the plaintiff has examined PW1, PW2 & PW3 to prove that the defendants by removing the corridor (varanda) raised permanent wall and converted the varanda in a room. Having considered the statement of Om Prakash DW1 that the plaintiff has not filed a map in this regard, the trial court has recorded its findings that since the plaintiff has not adduced any documentary evidence, therefore, the plaintiff could not prove the fact that the defendants have materially altered the structure of the building and thus decided the said issue in favour of the tenants/defendants. 17. Perusal of the findings recorded by the trial court would reveal that the trial court did not consider the affirmative statement of PW1, PW2 and PW3 who have proved that the defendants have raised a wall by removing the varandas and converted the same into a room. The trial court in a cursory manner without having considered the oral evidence has wrongly recorded its findings on issue no.2, however, issue no.4 appears to be left undecided, since, the plaintiff’s witnesses have proved the fact that the defendants have raised a wall in varanda and converted the same into a room which has diminished the value of the suit property, it is held that the defendants have illegally constructed the wall and changed the nature of suit property. Therefore, the finding recorded by the trial court on issue no.2 is set aside. Issue no. 2 is being decided in favour of the plaintiff/revisionist. 18. The trial court has recorded its findings on issue nos. 3 and 7 jointly. The trial court has held that as the plaintiff’s society is registered as charitable society, therefore, as per provisions contained under Section 2(bb) of the Act the provision of Act no. 13 of 1972 does not apply to the suit property. The trial court also considered that documentary evidence filed by the plaintiff i.e. copy of memorandum of registration of the society, certificate

issued by Income Tax Department clearly states that the plaintiff’s society has been registered for charitable purpose. 19. It would be apt to reproduce Section 2(bb) of the Act is extracted below: “2. Exemptions from Operation of Act.-(1) Nothing in this Act shall apply to [the following namely,-]

(a)….

(b)

(bb) any building belonging to or vested in a public charitable or public religious institution;”

of predecessor of the defendants, the tenancy was governed under the Rent Control Act. 23. The landlord is a registered society and involved in charitable work. The contention of the tenant that in view of provisions contained in Section 6 of the General Clauses Act their tenancy is unaffected. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expresses. Clause (c) of Section 6, refers the words ‘any right, privilege; obligation acquired or accrued’ under the repealed statute would not be affected by the repealing statute. It is to clarify here that mere existence of right not being 'acquired' or 'accrued', on the date of the repeal would not get protection of Section 6 of the General Clauses Act. The suit was instituted in the year 2007, the provisions of Section 6 of the General Clauses Act is not applicable at all in the matter. Thus, finding recorded on issued no.6 is hereby affirmed. 24. This Court has recorded the findings on issue no.5 in favour of the plaintiff. 25. In view of the fact that tenancy of the respondent is not protected under the provisions of U.P. Act no. 13 of 1972, therefore, at the will of the landlord the tenancy has been terminated by issuing notice under Section 106 of the Transfer of Property Act. Section 106 of Transfer of Property Act is extracted below: 106. Duration of certain leases in absence of written contract or local usage.— (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to

month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

of Transfer of Property Act, 1882 was served upon the tenants and as such after expiry of 30 days of the notice the tenants were liable to be evicted. The trial court has committed illegality in dismissing the suit on the ground that the tenants have not committed any default in payment of rent. 27. In view of the fact that the findings have been recorded in favour of the revisionist/plaintiff on all the issues, the revision filed by the landlord deserves to be allowed. In view of revision being allowed CLR No. 84 of 2012, the CLR No. 111 of 2012 filed by tenants is liable to be dismissed. Having considered the fact that the tenants are residing in the suit property since long time, it would be appropriate to grant some time to the tenants to vacate the premises in question, on the following terms and conditions: (1) The tenants shall file an undertaking before the Judge, Small Cause Court, Rishikesh within a months that they shall vacate the premises in question on or before 31.10.2020 and handover vacant and peaceful possession of the premises in question to the landlord. (2) The tenants shall undertake to deposit the entire decretal amount before the Judge, Small Cause Court within a period of two months from today subject to adjustment of any amount already deposited before the court below as well as the amount paid to the landlord. (3) The tenants shall continue to pay the rent/damages for the use and occupation of the premises in question on each succeeding month till vacation of the accommodation on 7th day of each month. (4) The tenants shall not induct any other person in the premises in question. (5) In the event of default of any of the aforesaid conditions, the tenants shall not be entitled to continue in the premises in question up to 07.11.2020 and the decree shall be executed forthwith. 29. No order as to costs. (Lok Pal Singh, J.) 17.03.2020 Mamta