H.N. Tilhari, J. - (1.) This is landlord's petition. The petitioner has filed this writ petition claiming issuance of writ of certiorari for quashing the judgment and order dated 29-1-91 passed by I Additional District Judge, Lucknow, contained in annexure-10 as well as judgment and order dated 8-11-85 passed by I Additional District Judge, Lucknow, dismissing the revision as well as the plaintiff-petitioner's review application and affirming the judgment and order dated 30-9-81 passed by Judge Small Cause Court (Civil Judge, Malihabad) Lucknow, in S.C.C. Suit No. 1807 of 76. The facts of the case in brief are that the plaintiff filed the suit for recovery of Rs. 1499.55 with costs against the defendant-opposite party no. 3 with the allegations to the effect that one Smt. Kalawati Devi was the owner of House no 465, Malviya Nagar, Allahabad. According to plaintiff's case her husband had died in 1969 and she became the owner of that property. According to the plaintiff's ease Smt. Kalawati Devi, the owner of that house used to reside at Lucknow, in mohalla New Hyderabad since after the expiry of 40 days, period from the death of her husband. According to the plaintiff-petitioner's case, in the first week of July, 1971 an agreement of lease between the parties was entered into with respect to the portion of House no. 465, Malviya Nagar, Allahabad. According to plaintiff the defendant had come to Lucknow in the last week of July, 1971 and the agreement of lease had been entered at Lucknow, where under the accommodation in dispute was let out to defendants on a monthly rental of Rs. 60/-. According to the plaint case the agreement was made by the plaintiff on behalf of Smt. Kalawati and under that agreement it was also agreed as a term of lease that the rent of the accommodation will be payable and be paid regularly by the defendant-tenant-opposite party no. 3 at the residence of Smt. Kalawati or the plaintiff. The plaintiff further alleged that Smt. Kalawati died on 20-7-76. The plaintiff pleaded that Shri Jagdish Kishore Bhalla, husband of Smt. Kalawati had executed a will giving all his property to Smt. Kalawati Devi and after her death the property was inherited by the plaintiff and that the plaintiff-petitioner did inherit the estate of Smt. Kalawati along with her assets. According to the plaintiff's case defendant was irregular in payment of rent and that a sum of Rs. 1417/- remained outstanding against the defendant and that was the rent for the period from 1-10-73 to Dec. 1975. According to plaintiff's case defendant actually vacated the house in December, 1975. The plaintiff claimed Rs. 29.55 as electricity charges. The plaintiff alleged that the cause of action for filing the suit had accrued at Lucknow on account of defendant's failure to pay the rent as aforesaid at Lucknow and so a decree for recovery of a sum of Rs. 1499.55 was claimed. The defendant-opposite party filed the written statement taking the plea that the rate of rent was Rs. 25/- per month, and, as such, the entire rent on 31-12-75 had been paid up though the building had been vacated on 4-12-75. The defendant had admitted that the building was vacated prior to the filing of the suit. The defendant took the plea that the courts at Allahabad had jurisdiction to entertain the suit and that the court of Judge Small Causes, Lucknow had no jurisdiction and that no part of cause of action had accrued in favour of the plaintiff against the defendant within the territorial limits of jurisdiction of Judge, Small Causes Court, Lucknow. The defendant also challenged the right of plaintiff to file the suit. The trial court i.e. Civil Judge exercising the jurisdiction of Judge, Small Causes Court dismissed the suit on the basis of findings on issue no. 1. The finding recorded by the trial court on issue no. 1 was that the courts at Lucknow had no jurisdiction as the suit related to immovable property situate at Allahabad and further it held that the agreement of lease had taken place at Allahabad and not at Lucknow. The court below took the view that immovable property was situated at Allahabad and as the defendant does not reside within the jurisdiction of Lucknow courts so courts at Lucknow had got no jurisdiction to entertain the suit. As regards the dispute regarding rate of rent the trial court recorded the finding against the plaintiff. The trial court held that the house was let out at a monthly rental of Rs. 25/- and not at the rate of Rs. 60/- per month. It also held that the plaintiff did not obtain the letter of administration or probate from competent court on the basis of the will executed by Jagdish Kishore Bhalla, the plaintiff had no right to file the suit. With these findings the trial court dismissed the plaintiff's suit. Feeling aggrieved from the judgment and decree of the trial court the plaintiff filed revision under section 25 of the Provincial Small Cause Courts Act. The learned Additional District Judge agreed and affirmed the findings of the trial court on the question of jurisdiction that the defendant had taken house from Smt. Kalawati Devi on rent at Allahabad and had not come to Lucknow for making agreement with Smt. Kalawati Devi and that the property in suit is also situate at Allahabad so the Civil Judge at Lucknow had no jurisdiction. It has further held that as the defendants also do not reside at Lucknow so the Lucknow courts had no jurisdiction. The learned Additional District Judge also took the view that there was no illegality in the finding of the court below when it opined that without obtaining Probate or Letter of Administration on the basis of the will the suit could not be filed. As regards other findings about the rate of rent the revisional court took the view that those were findings of fact and the revisional court had no jurisdiction to interfere with those findings.
(2.) The plaintiff petitioner filed an application for review under Order 47 Rule 1 of the Code of Civil Procedure. The learned Additional District Judge rejected the review application filed by the plaintiff-petitioner and had taken the view that the conclusions arrived at by the court below as well as by it about the jurisdiction of the trial court to) entertain the suit have been quite correct and they did not call for any review. Having felt aggrieved from the judgment and orders passed by opposite-parties 1 and 2 i.e. Judge, Small Causes Court (Civil Judge, Malihabad) Lucknow and that of I Additional District Judge, Lucknow, annexures-5, 6 and 10, the plaintiff has come up before this Court under Article 226 of the Constitution of India, for the grant of writ of certiorari quashing the orders contained in annexures-5, 6 and 10.
(3.) I have heard Shri S.K. Mehrotra assisted by Shri I.D. Shukla, Advocate for the petitioner at length. I have also heard Shri A.P. Singh Gaur, for the opposite-parties. Shri S.K. Mehrotra has urged before me that the finding of the court below, that it had no jurisdiction to entertain the suit which had been recorded by the trial court, has been vitiated by error of law. The plaintiff's case has been that the agreement of lease had taken place between Smt. Kalawati acting through the plaintiff-petitioner and the tenant-opposite party at Lucknow and thereunder it was one of the terms agreed upon that the rent would be payable and be paid at Lucknow regularly and as the rent was not paid the cause of action had accrued at Lucknow irrespective of the fact that the property leased out was situate at Allahabad. Shri Mehrotra submitted that no doubt the court below had recorded the finding on one aspect of the matter against the petitioner that the agreement of lease had been entered into not at Lucknow but at Allahabad i.e. in other words the court has recorded the finding to the effect that immovable property or the property leased did situate at Allahabad, no defendant has been residing at Lucknow, instead the defendant has been residing at Allahabad and thereafter at Mirzapur and that the agreement of lease was entered into at Allahabad, but the question of jurisdiction could not be decided on that basis simpliciter. There has been one more material question to be decided whether it was an agreed term of lease that the rent would be payable and be paid by the defendant to the landlord or to plaintiff-petitioner on her behalf at Lucknow or any where else, particularly, in view of the pleadings of the parties specially of the defendant in paragraph 7 of the written statement, according to which the defendant's case as stated in the written statement has been that the arrangement for payment of rent with her was that she would be paid in cash if present at Allahabad otherwise rent would be deposited in the savings bank account of the plaintiff in the City Office of the Allahabad Bank at Allahabad and that if specifically requested, rent would be sent by money-order. Shri Mehrotra submitted that this question had to be decided first, provided the defendant had pressed his pleadings. Shri Mehrotra submitted that no issue was pressed nor did the defendant press for any issue challenging the plaint case. He submitted that there is no discussion about the defence plea of jurisdiction as regards this aspect of the matter. He submitted that this plea should be deemed to have been waived and if the defendant had waived this plea the plaintiff's case to the effect that the rent would be payable and be paid at Lucknow stood admitted and if not admitted a finding ought to have been recorded before dismissing the suit or deciding the issue one way or the other. Shri Mehrotra submitted that this was a glaring error of law which per se indicated that the decision of the trial court has not been in accordance with law and, therefore, there was a case for the Additional District Judge to have interfered with the order of the trial court in exercise of jurisdiction under section 25 of the Provincial Small Cause Courts Act which it did fail or illegally refused to exercise the same. Shri Mehrotra further submitted that the finding regarding agreement having taken place at Allahabad and not at Lucknow and that the said finding is also vitiated by error of law which resulted in the decision being one which had been arrived at not in accordance with law and that the error, Shri Mehrotra submitted, has been to the effect that the learned trial court raised an adverse inference, expressed or impliedly from the non-production of Smt. Kalawati Devi, aunt of the plaintiff-petitioner in the witness box who could not be produced. Shri Mehrotra submitted that in the plaint itself it had been averred that Smt. Kalawati Devi had died on 20-7-76 and the suit had been filed on 26-10-76. He further pointed out towards paragraph 4 of the written statement wherein it has been stated that the contents of paragraph 4 of the plaint had not been denied. In paragraph 4 of the plaint it has been stated that Smt. Kalawati Devi had died on 20-7-76 and so Shri Mehrotra submitted that this is admitted fact. Shri Mehrotra submitted that the learned court below ignored this admitted pleading of the parties and while recording the finding had taken an adverse view against the plaintiff on wrong assumption that Smt. Kalawati Devi was alive and was not produced and if she would have been produced it might have gone against the plaintiff and this circumstance coupled with other circumstances in evidence and held that the agreement had not taken place at Lucknow but at Allahabad, and, as such, in recording the finding on the basis of an adverse presumption against the plaintiff under section 114 of the Evidence Act when it could not be raised in view of the fact that Smt. Kalawati Devi had already died, the trial court committed error of law and jurisdiction in raising the presumption against the plaintiff on the question as to the place of agreement and deciding this issue against the plaintiff-petitioner, thus he submitted that the finding on question of jurisdiction recorded by the court below is bad in law and when the finding on issue of jurisdiction was not in accordance with law the decision of both the courts below in entirety cannot be said to be in accordance with law. These are the only contentions that have been raised by the petitioner's counsel and no other contention.;