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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JUJRISDICTION

CIVIL APPEAL NO. 20833 OF 2017

ARISING OUT OF SLP (C) NO. 33994 OF 2014

TRILOK SINGH CHAUHAN ... APPELLANT

VERSUS

RAM LAL(DEAD) THR. LRS ... RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

1.This appeal has been filed against the judgment dated

26.08.2014 of High Court of Uttarakhand in Civil Revision

No. 32 of 2010 by which judgment High Court has allowed

the Revision and set aside the order passed by the Judge,

Small Causes Court directing the eviction of the

respondent-tenant with recovery of rent and damages. The

landlord aggrieved by the judgment has come up in this

appeal.

2.Brief facts of the case, necessary to be noted for

deciding this appeal are:

The appellant is the owner of Shop No. 46 Adarsh Gram

Chauhan Market, Yatra Bus Station, Rishikesh. The

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respondent is carrying on business of clothe merchant in

the shop as tenant. A notice dated 07.09.2001 was issued

that respondent has not paid the rent of above-mentioned

shop from December, 2000 till present date. The rate of

rent was claimed as Rs. 1500/- per month. Notice was

given to pay the whole outstanding rent with interest

within one month from the receipt of the notice, failing

which tenancy shall be treated as terminated. After

prescribed period damages at the rate of Rs. 50/- per day

were also claimed. As notice was not replied, the

appellant filed a Small Causes Case No. 32 of 2001 in the

Court of Additional District Judge praying for recovery

of rent with compensation and expenses and any other

relief. The written statement was filed by the respondent

where he denied the rate of rent to be Rs. 1500/- per

month. It was stated that the rate of rent is only Rs.

250/- per month and since October 1994, he is carrying on

business of clothe. It was stated that the plaintiff has

already received the rent for the month of August, 2001

but he did not issue any receipt. Appellant has stopped

to receive the collection of rent from September, 2001.

The respondent forwarded the total rent of Rs. 1250/- for

the period of September, 2001 to January, 2002 at the

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rate of Rs.250/- per month through money order which was

denied, stating that 'it is denied to accept due to this

amount is less than the actual amount'. Respondent

pleaded that premises is covered by U.P. Act No. 13 of

1972. Trial Court by order dated 13.05.2004 framed ten

issues. An application for amendment was filed by

appellant for adding a prayer 'that the plaintiff may be

given possession of disputed shop which is stated in the

list of property annexed at the end of the plaint after

evicting the respondent from the above shop'. The

amendment application was although rejected by the Trial

Court on 25.4.2007, but the High Court by an order dated

05.08.2008 allowed the amendment application subject to

payment of cost of Rs. 3000/-.

3.High Court also allowed three week's time to

respondent to file amended written statement. Additional

counter statement was filed by the respondent. Trial

Court framed an additional issue on 20.01.2009 which is

to the following effect:

“1.Whether the plaintiff has waived to oppose

for eviction in his notice dated 07.09.2001?

If yes, whether the required relief added by

the plaintiff is barred to the limitation as

stated in the additional counter statement.”

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4.Parties led their evidences before the Trial Court

including the documentary evidences. Trial Court after

considering the evidences of the parties decided issue

No. 1 in favour of the appellant that rate of rent is

Rs.1500/- per month. Other issues were also decided in

favour of the appellant, consequently, the Trial Court

passed a decree of eviction against the respondent-tenant

with balance amount of payment of rent and damages at the

rate of Rs. 50/- per day.

5.Aggrieved by the above-said judgment, the respondent

filed a Revision before the High Court. The Revision

filed by the respondent was under Section 25 of the

Provincial Small Cause Courts Act, 1887(hereinafter

referred to as 'Act, 1887'). The High Court vide its

judgment allowed the Revision and set aside the judgment

and decree of the Trial Court holding that rate of rent

is Rs. 250/- per month and not Rs. 1500/- per month.

High Court also made observation against the landlord

that the motive of landlord is to secure the possession

back and profit hunting.

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6.Learned counsel for the appellant submits that the

High Court committed error in upsetting the findings of

fact regarding rate of rent which was held by the Trial

Court as Rs. 1500/- per month but reversed by the High

Court holding it to be Rs. 250/- per month only. It was

further stated that the tenant is in possession of shop

for nineteen years and although tenancy was terminated by

landlord after one month of the service of the notice,

appellant could not get the possession of the shop. The

counsel for the appellant referring to Page No. 88 and 89

of the paper book submits that Trial Court has given

cogent reasons and considered relevant evidence for

recording a finding that rate of rent is Rs. 1500/- per

month which has been set aside by the High Court.

7.Learned counsel appearing for the respondent,

refuting the submission of the learned counsel for the

appellant contends that the Trial Court while decreeing

the suit had not adverted to the additional issues which

were framed by the Trial Court on 20.01.2009. He submits

that Trial Court having not adverted to additional

issues, the Revisional Court has rightly set aside the

judgment and order of the Trial Court and dismissed the

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suit.

8.We have considered the submissions of the learned

counsel for both the parties and perused the record.

9.The basis of judgment of the High Court in setting

aside the judgment of the Trial Court is the reversal of

the findings regarding rate of rent. As noted above, the

case of the plaintiff was that the rate of rent is Rs.

1500/- per month whereas the case of the tenant was that

rate of rent was Rs. 250/- per month. The High Court

while coming to the conclusion that the rate of rent is

Rs. 250/- per month gave following reasonings:

"I have perused the impugned judgment of the

trial court and find the force in the argument

so submitted by the learned counsel of the

revisionist and instead remanding the case and

lingering this old litigation further between

the parties, I am of the view that no rent due

was payable to the landlord at the time of

issuing the notice dated 07.09.2001.

Relatively, the oral testimony of the landlord

is rebutted by the oral testimony of the

tenant, revealing the fact that the tenanted

premises was taken on the rent to the tune of

Rs. 250/- per month with a payment of premium

of Rs. 1,20,000/- wherefor no receipt was

issued by the landlord to the revisionist. The

fact can not be over sighted that this is in

quite prevalent practice in such matters that

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the landlord takes the lump sump premium from

the tenant, as has been taken in the instant

case. After taking such a hefty premium, the

rent must not be more than what it has been

stated way back in the year 1994.

No additional reliable testimony has been

brought by the landlord on record to create

the force in his pleadings.”

10.Learned counsel for the appellant has referred to

findings of the Trial Court at Page No. 88 and 89. It is

useful to refer to the discussions made by the Trial

Court deciding the Issue No. 1, which issue was whether

the respondent is tenant in the disputed shop of the

plaintiff for the rate of rent, a sum of Rs. 1500/- per

month? The discussion of the Trial Court at Page No. 88

to 90 is as follows:

“.....In support of the above statement, the

plaintiff produced the Evaluation List for the

period 2004-2009 issued by the Executive

Officer, Nagar Palika, Rishikesh vide document

no. 96Ga. Though, it also clearly proves that

the rent of above disputed property is equaled

to Rs. 1500/- per month. The respondent has

not filed any documentary evidence to oppose

the above fact which it can be proved that the

rent of the above disputed shop is equaled to

Rs. 250/- per month in place of Rs. 1500/-

month.

It clearly proves from the statements of

the above witnesses and the documentary

evidence available on record that any written

agreement regarding the rent of the questioned

property has neither been made between the

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parties nor filed any rent receipt by the

respondent against the payment of rent though

it is accepted by both the parties that the

plaintiff himself used to come at shop for the

collection of rent and the respondent used to

acknowledge the entry of this payment of rent

in his diary at the shop.

The respondent ought to have proved this

fact that the rent of the above questioned

shop was equaled for sum of Rs. 250/- per

month. The respondent should have produced

the above diary, which was important

documentary evidence and having under the

possession of the respondent and the

signatures of the plaintiff were also taken in

this diary, therefore, the adverse presumption

shall be taken against respondent u/s 114 of

the Evidence Act due to having not to produce

the above diary. This fact cannot be proved by

the respondent; therefore, after analyzing the

above facts, I am of the view that there is

not present any ground to disbelieve the

statement of the plaintiff in which he stated

the rent was equaled for sum of Rs. 1500/- per

month.....”

11.The findings recorded by the Trial Court were based

on evidence brought on record. A reference to Evaluation

List for the period 2004-2009 by the Executive Officer,

Nagar Palika, Rishikesh vide document No. 96Ga was also

mentioned. Trial Court has further drawn an adverse

inference against respondent that he had not produced the

diary in which acknowledgment of the entry of the payment

of rent was made by the appellant. The entire discussion

of the High Court as extracted above, does not refer to

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above two factors which weighed that the Trial Court in

coming to the conclusion that rate of rent is Rs. 1500/-

per month. We thus are of the clear opinion that High

Court committed an error in setting aside the findings of

the Trial Court on the rate of rent.

12.The High Court was exercising the jurisdiction under

Section 25 of the Act, 1887 which provision is as

follows:

"Sec. 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.”

13.The scope of Section 25 of the Act, 1887 came for

consideration before this Court on several occasions. In

Hari Shankar & Ors. Vs. Rao Girdhari Lal Chowdhury, AIR

1963 SC 698, in Para Nos. 9 and 10, this Court laid down

the following:

“9. The section we are dealing with, is almost

the same as Section 25 of the Provincial Small

Cause Courts Act. That section has been

considered by the High Courts in numerous

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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, (1938) 40 Bom LR 125:

(AIR 1938 Bom 223) where the learned Chief

Justice, dealing with Section 25 of the

Provincial Small Cause Courts Act, observed:

"The object of Section 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 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 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

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can interfere. But, in may 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.

10. What the learned Chief Justice has said

applies to Section 35 of the Act, with which

we are concerned. Judged from this point of

view, the learned single Judge was not

justified in interfering with a plan finding

of fact and more so, because he himself

proceeded on a wrong assumption. ”

14.Another judgment which needs to be noted is judgment

of this Court in Mundri Lal Vs. Sushila Rani(Smt) & Anr.,

(2007) 8 SCC 609 . This Court held that jurisdiction

under Section 25 of the Act, 1887 is wider than the

Revisional Jurisdiction under Section 115 C.P.C. But

pure finding of fact based on appreciation of evidence

may not be interfered with, in exercise of jurisdiction

under Section 25 of the Act, 1887. The Court also

explained the circumstances under which, findings can be

interfered with in exercise of jurisdiction under Section

25. There are very limited grounds on which there can be

interference in exercise of jurisdiction under Section

25; they are, when (i) Findings are perverse or

(ii)based on no material or (iii) Findings have been

arrived at upon taking into consideration the

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inadmissible evidences or (iv) Findings have been arrived

at without consideration of relevant evidences.

15.Present is not a case where High Court set aside the

finding of the Trial Court on any of above grounds where

Revisional Court under Section 25 can interfere. High

Court has not even referred to the reasons given by the

Trial Court while coming to the conclusion that the rate

of rent is Rs. 1500/ per month. We thus are of the view

that judgment of the High Court is unsustainable.

16.The submission which has been much pressed by the

learned counsel for the respondent is that Trial Court

has not adverted to the additional issues which were

framed by the Judge, Small Causes Court after allowing

the amendment. The additional issue was as to whether

the plaintiff has waived to oppose for eviction in his

notice dated 07.09.2001 and whether the prayer for relief

added by the plaintiff is barred by limitation. The

notice dated 07.09.2001 brought on record by the

appellant as Annexure P.1. Notice after setting out facts

and claim in last paragraph states as follows:

“Therefore, you are hereby given the notice

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that you should pay the whole outstanding rent

of my client from December 2000 to till today

at the rate of Rs. 1500/- per month with

interest within one month from the date of

receipt of this notice and the tenancy be

terminated and shall be treated as terminate

after passing above prescribed period. You

shall also be liable to pay the compensation

at the rate of Rs. 50/- per day to my client

after passing the above limitation and the

suit will be filed against you before the

competent court, for which you will be sole

responsible for all the costs and expenses.

You should pay the expenses of notice for sum

of Rs. 500/-. You are informed hereby that

the copy of this notice has been put into

custody at my office for further need. The

second copy of this notice is being forwarded

to you through U.P.C. Post.”

17.The notice clearly contemplated the termination of

the tenancy after expiry of one month. It is relevant to

note that the High Court in its judgment has noted the

arguments of revisionists regarding non-decision of the

additional issues. The High Court noticed the aforesaid

submission in following words:

“Learned counsel of the revisionist has

vehemently argued that none of such added

point of determination has been dealt with by

the court below in the body of the judgment,

much less any finding on either of them....”

18.High Court although noted the above submission but

has not proceeded to examine the above contention or

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recorded any finding in favour of the respondent. Trial

Court had already framed Issue No. 9 to the following

effect: “Whether the plaintiff has any right to evict the

respondent from the disputed property?” The issue was

answered in favour of plaintiff.

19.Although, the above argument was not adverted by the

High Court but since the respondent has raised the

argument before us, it is necessary to consider the

above-said argument. The additional issue as noticed

above is as to whether by notice dated 07.09.2001 the

landlord has waived his right of eviction. From the

averments of notice, as quoted above, it is clear that

tenancy was terminated and landlord contemplated

eviction of the tenant. We thus are of the view that

there is no question of the waiver of eviction. The

prayer of eviction which was formally added by amendment

can not be said to be barred by time since suit was

filed in the year 2001 itself. It was clearly pleaded in

the plaint that in spite of the service of notice

neither payment of balance amount of rent has been made

nor the possession of the shop has been given to the

respondent, even after, terminating the tenancy. In para

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4 of the plaint following was stated:

“4.That the tenancy of the respondent had

been terminated by the plaintiff through above

notice but the above shop of the plaintiff had

neither been vacated nor entrusted the

possession by the respondent. The respondent

did not receive this notice deliberately. The

denial of acceptance of the service of above

notice was recorded on the envelope of above

registered post. It was necessary to file the

above case due to non-compliance of above

notice, do not make the payment of balance

amount of rent and do not delegate the

possession of the shop to the plaintiff by the

respondent even after terminating tenancy.”

20.Thus, the landlord was clearly insisting on

termination of the tenancy and was also mentioning a

cause of action of not handing over of the possession. In

these circumstances, we are of the view that it cannot be

held that there was any waiver of relief of eviction

either on the notice or in the suit. Formal prayer has

already been added in the plaint seeking possession of

shop after eviction which amendment was allowed by the

High Court in its judgment dated 05.08.2008. We are thus

of the view that High Court committed an error in setting

aside the judgment and decree of the Judge, Small Causes

Court.

21.In result, the appeal is allowed. The judgment and

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order of the High Court is set aside and decree of the

Judge, Small Causes Court is restored. The parties shall

bear their own costs.

......................J.

(A. K. SIKRI)

......................J.

(ASHOK BHUSHAN)

NEW DELHI,

December 11, 2017