- (1.) The petitioner/tenant is assailing the order dated 1 July 2010 passed in SCC Revision No. 57 of 2008 by the Additional District Judge/Special Judge, SC/ST Act, Jhansi arising out of an order dated 9 April 2008 passed by the Small Cause Court at Jhansi decreeing the suit for eviction and damages. The petitioner is a tenant of two shops of which the respondent is the owner and landlord. The plaint case of the respondent/landlord was that the petitioner is a tenant since 1991 who defaulted in payment of rent, further, it was alleged that the petitioner had removed the partition wall of the two shops converting it into a single shop, therefore, had materially altered the face and structure of the shop. The respondent, therefore, terminated the tenancy by notice dated 16 June 2006. The trial court formulated six issues upon exchange of pleadings. The suit was decreed. Upon considering the material and evidence available on record the revisional court affirmed the judgment and decree on the issue of material alteration but reversed the finding on the issue regarding default of rent.
(2.) The petitioner is assailing the order in writ jurisdiction under Article 226 of the Constitution of India. Learned counsel for the petitioner at the out set would submit that in view of the Constitution Bench decision rendered in Radhey Shyam and another vs. Chhabi Nath and others, 2015 3 ADJ 210 The writ petition under Article 226 of the Constitution would not lie against the judgment and decree passed in civil proceedings, therefore, would contend that the petitioner shall confine the petition within the parameters of Article 227 of the Constitution of India. The sole point for consideration is confined to the material alteration in terms of Sub-section 22(c) of Act 13 of 1972. Submission of learned counsel for the petitioner is that the removal of the partition wall from the adjoining shops were undertaken by the landlord himself, as such, the tenant requiring prior permission was not warranted in terms of Section 22(C) of the Act. The Courts below have decreed the suit merely by recording that, since their being no written consent of the landlord for altering the structure, therefore, it would follow that the tenant had made material alteration defacing the shop. The material and evidence available on record would necessarily show otherwise. The finding, therefore, is per se perverse.
(3.) Further, the landlord though filed his written statement but failed to appear in the witness box to state his own case on oath nor offered himself in cross-examination, therefore, an adverse inference would be drawn against him in view of the Section 115 of the Evidence Act. In rebuttal, learned counsel appearing for the respondent-landlord would submit that the Court below have recorded a concurrent finding of fact regarding the material alteration which cannot be interfered under Article 227.;