- (1.) SHIV Charan Sharma, J. The present writ petition has been instituted under Article 226 of the Constitution of India for issuing a writ, order or direction in the nature of certiorari quashing and setting aside the judgment and decree date 29th April, 2008 passed by the District Judge, Faizabad in S. C. C. Revision No. 28/2008, Shakeel Ahmad Vs Prem Sagar as well as the judgment and decree dated 26th October, 2006 passed by Judge, Small Causes Court, Faizabad in S. C. C. Suit No. 11/2003, Prem Sagar Vs Shakeel Ahmad. By the impugned judgments and decrees, both the courts below decreed the suit of the plaintiff. The opposite party instituted a suit for recovery of /arrears of rent and expenses for use and occupation and also for eviction of the tenant-petitioner from the property in dispute and the revisional court in revision, dismissed the revision and affirmed the judgment and decree of the trial court.
(2.) THE brief narration of the facts of the case shows that the plaintiff-opposite party instituted a suit for recovery of arrears of rent and expenses for use and occupation of Rs. 7200/- and also for eviction of the tenant from the property in dispute. It has been alleged in the plaint that the plaintiff is the owner- landlord of the building, House No. 9/6/69, Sagar Market, Rikabganj Ward, Rikabganj, Faizabad and the defendant is the tenant of one of the shops numbered as 4 situated in this building as fully described in the plaint at the monthly rent of Rs. 200/- That the defendant was defaulter in payment of rent and he was not in the habit of paying the rent month to month. That the rent was due towards the defendant for the month of May, 2000 upto the month of April, 2003. That a notice of demand and termination of tenancy was served by registered post through an advocate on 19th May, 2003. One copy of the notice was also sent under the certificate of posting on 21st May, 2003. As the notices sent by the registered post as well as under the certificate of posting were not received unserved, hence, a presumption was drawn of sufficient service and inspite of sufficient service, the defendant neither paid the arrears of rent nor vacated the property in dispute. Hence, the present suit was instituted. The defendant-petitioner contested the suit, filed Written Statement and denied from the allegations of the plaint. It has been alleged that the property in dispute was constructed earlier to the year 1980. That the defendant is the tenant of the property in dispute continuously from the month of April, 1983. That the tenancy was created by a written agreement at the monthly rent of Rs. 100/- initially. That the name of defendant has also been entered in the record of the Nagar Paliak as tenant. That the original copy of the agreement is in the possession of the defendant. That the defendant had been paying the rent to the landlord regularly. That the rent for the month of July, 1998 upto April, 2000 was paid on 15th July, 2000 and a receipt was also obtained by the tenant. That the rent for the month of May, 2000 upto the month of May, 2002 was paid by a cheque dated 15th July, 2002 of Rs. 5,000/- and this amount was paid by cheque of the account of Izharul-Haq, a relation of the defendant, but no rent receipt was delivered by the plaintiff on the pretext that after receiving the payment, receipt shall be issued, but afterwards, no rent receipt was delivered. That the rent for the months of June, 2002 & July, 2002 could not be paid due to paucity of funds. That whenever the defendant went to the plaintiff to pay the rent, he avoided to receive the rent and he stated that he will receive the rent of 2-3 years at a time. Hence, the defendant was assured that the rent will be paid whenever the plaintiff will demand the same. That the defendant is ready and willing to pay the rent for the month of June, 2002 upto April, 2004. That an attempt was made for compromise also but the same could not be materialized due to indifferent attitude of the plaintiff. Hence, the rent of Rs. 4,600/- was deposited in the court by tender. That the plaintiff has got no right to get the property vacated. That the suit is liable to be dismissed. Before the trial court, both the parties produced their evidences oral as well as documentary evidences and the trial court for the decision of the suit, framed 4 Issues. Issue No. 1 was regarding the landlord and tenant. Issue no. 2 was regarding the default in payment of rent. Issue No. 3 was regarding the service of notice to the defendant. All the three issues were decided against the defendant- petitioner and on the basis of the findings on these issues, the suit of the plaintiff was decreed with cost for recovery of arrears of rent and expenses for use and occupation and also for eviction of the defendant from the property in dispute. After being aggrieved from the judgment of the trial court, the petitioner filed a S. C. C. Revision No. 28/2008, Shakeel Ahmad Vs Prem Sagar. This revision was also dismissed by the revisional court vide judgment and decree dated 29th April, 2008. After being aggrieved from the judgment and decree of the revisional court, the present writ petition has been instituted under Article 226 of the Constitution of India.
(3.) I have heard learned counsel for the petitioner namely Sri Amit Tripathi, Advocate for the petitioner and Sri S. K. Mehrotra, learned Senior Advocate for the opposite parties and perused the entire material on record. Learned counsel for the petitioner vehemently argued that firstly no rent for more than 4 months was due against the petitioner. That a cheque was delivered of Rs. 5,000/- for payment of rent for the month from May, 2000 upto May, 2002. That the receipts were not issued. That the petitioner also tried to pay the rent of the subsequent months, but the plaintiff was reluctant to receive this amount of rent and that after filing of the suit, the petitioner tried to pay the rent, but on refusal to receive the rent, he deposited the same in the court. Learned counsel for the petitioner also argued that no notice for termination of tenancy and demand of rent was received by the defendant-petitioner. That intentionally, the notice was issued at the address of the house of the defendant-petitioner whereas the petitioner is carrying on a business in a shop and in the morning, after locking the house, he used to remain at the shop for the entire day and as the petitioner never remained available at the house, hence, there was no question of service of notice. That it was in the knowledge of the opposite party that during the day time, the petitioner shall not be available at his house, then the opposite party should have sent the notice at the address of the shop of the petitioner and not at the address of his house. Learned counsel also argued that a caveat was issued at the address of the shop of the petitioner. He also argued that neither there was any default in payment of rent nor any valid notice was served on the petitioner. Hence, both the courts below committed gross illegality in decreeing the suit of the plaintiff for recovery of arrears of rent and expenses for use and occupation and also for eviction.;