HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
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(1.) By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the order dated 7.9.2013 passed by IV Addl. District Judge Haridwar in Civil Revision No.7 of 2013 Ghanshyam vs. Smt. Mahaviri and others.
(2.) Brief facts of the case, giving rise to this writ petition are, that respondent filed a Small Cause Suit being No.13 of 2005 against the predecessor of petitioners for arrears of rent and ejectment. Predecessor of petitioners died during the pendency of the suit and subsequently the petitioners were impleaded as defendants. Prior to filing of the suit, a notice u/s 106 of Transfer of Property Act was given to the defendant petitioners terminating their tenancy. In the plaint, the respondent also alleged that the defendant was in arrears of rent w.e.f. 1.1.1986 to 19.10.2005, but in view of time barred rent, the respondent demanded the rent w.e.f. 7.11.2002. The suit was contested by the defendant/petitioners and written statement was filed denying the arrears of rent. It was specifically pleaded in para-15 of the written statement that no rent is due on the defendants. Thereafter, both the parties adduced their evidence. On the basis of pleadings, learned Judge, S.C.C. framed following issues:-
i) Whether the defendant has committed default in payment of rent w.e.f. 1.1.1986 and water tax?
ii) Whether the plaintiff has terminated tenancy of defendant vide notice dated 12.9.2005?
iii) Whether the defendant is tenant @ Rs.80/- per month along with other taxes?
iv) Whether at the time of filing of suit, Rs.20,000/- towards rent and Rs.3508/- towards tax was due upon the defendant and whether after excluding the time barred rent, the plaintiff is entitled to recover Rs.3,384/-?
v) Whether the defendants are entitled for benefit u/s 20(4) of the U.P. Act No.13 of 1972.
vi) Whether the notice given by the respondent is illegal?
vii) To what relief the plaintiff is entitled for? On the basis of evidence, learned Judge S.C.C. has observed that there is no dispute regarding rate of rent. The issue of notice was decided in favour of the plaintiff. On the issue of default, learned Judge S.C.C. has observed in his judgment that defendant has failed to establish the fact that the amount, which was time barred, has been paid and the amount excluding the time barred rent has been deposited by the defendants on the first date of hearing therefore benefit of Section 20(4) of the Act was given to the defendants. Learned Judge further held that rent which has been claimed in the suit has been deposited unconditionally by the defendant. Learned Judge recorded findings against the petitioners/defendants on the arrears of rent but by extending benefit of Section 20(4) of the Act dismissed the suit vide judgment and decree order 31.1.2012. Feeling aggrieved, the respondent preferred a revision. Vide judgment and order dated 7.9.2013, the revisional court allowed the revision by reversing finding of the trial court about benefit of Section 20(4) of the Act. The revisional court has observed that the trial court has committed manifest error of law in not considering the fact that benefit of Section 20(4) of the Act can only be extended if the tenant deposits entire due amount including the time barred rent. Feeling aggrieved by the judgment and order of the revisional court, the petitioner/defendant has filed the present writ petition.
(3.) Learned counsel for the petitioner has vehemently urged that the learned revisional court has committed manifest error of law in holding that it was burden upon the defendant to prove the fact that rent was due w.e.f. 1.1.1986 since the trial court has decided issue no.1 in favour of the plaintiff. Since no revision has been preferred against that finding, therefore, the argument of learned counsel cannot be accepted.;
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