POONAM SRIVASTAVA,J. - (1.) HEARD Sri Atul Dayal, counsel for landlord/petitioner and Sri H.P. Dube and Sri R.C. Singh, counsels for tenant/respondents.
(2.) PETITIONER is owner and landlord of premises No. 359, Bara Bazar, Thakurdwara, Moradabad, which consists of four rooms Varandah, two stores, kitchen and toilet. The accommodation in question was let out to tenant/Power Corporation at the rate of Rs. 900/- per month w.e.f. 15.6.1995 besides taxes and electrical charges, Initially, premises was let out for a period of three years. Formal lease deed was stipulated to be executed in near future. However, no lease deed was ever executed. Landlord claims that he had repeatedly requested Power Corporation for execution of the lease deed but there was no out come of his request. Power Corporation continued in occupation at the same rate and was also defaulter inasmuch as entire rent was not paid nor the municipal taxes. Landlord having no option, terminated tenancy vide registered notice dated 13.3.2000 wherein demand of arrears of rent was also made. Tenant/Power Corporation failed to pay arrears of rent and did not vacate accommodation in question.
(3.) SUBSEQUENTLY , S.C.C. Suit No. 1 of 2000 was instituted in the Court of Judge Small Causes. Written statement was filed but still no rent was paid. Evidence was led by both the parties. The Judge Small Causes Court, vide judgment and order dated 7.8.2003 decreed the suit for arrears of rent but dismissed claim of petitioner for eviction. Copy of the said judgments annexed as Annexure 4 to the writ petition. S.C.C. Revision No. 28 of 2003 was preferred before the District Judge, Moradabad, which stood transferred to Additional District Judge, Court No. 3, Moradabad. S.C.C. Revision was also dismissed by Additional District Judge, Court No. 3 vide judgment and order dated 7.1.2006. Both the judgments are impugned in the instant writ petition. The judgments are challenged on following counts: "(a) Both the judgment and orders of the Courts below are arbitrary, absolutely illegal and perverse. (b) The Courts below ignored that no formal lease deed was ever executed between the parties and as such there was no question of three months' notice as a condition precedent for instituting the suit and, therefore, the notice of 30 days was valid and legal and sufficient to terminate the tenancy. (c) The Judge Small Causes Court did not give any finding on the question of validity of notice, this point was never taken in written statement by the defendant or was argued before Court of Small Causes and, therefore, the revisional Court has committed gross illegality in holding that notice was not duly proved or invalid. (d) Any point which is beyond pleading cannot be raised or considered by the Courts. (e) Findings on the question of admissibility of secondary evidence could not be raised at the revisional stage if tenant had failed to put forth such an objection at the earliest possible opportunity i.e. at stage of evidence or arguments. (f) The Courts below illegally held that tenant was entitled for the benefit of Order XV Rule 5, C.P.C. unless finding on question of entire deposit on the first date of hearing has been arrived, no benefit of Order XV Rule 5, C.P.C. can be given. (g) The Courts below also confused between Section 20 and Section 21 and illegally held that plaintiff has failed to show his bonafide needs, this finding is totally perverse and against evidence on record. (h) Findings of Courts below are perverse holding notice to be illegal and invalid for want of original notice. Admittedly, original notice was with tenant and photostat copy or carbon copy was in possession of plaintiff, same was duly proved by means of an affidavit, therefore, any finding to the contrary for want of original notice stands vitiated in law. (i) The Courts below illegally held that since landlord did not produce bill of demand, tenant was justified in not paying the rent, it appears that Courts below failed to apply its judicial mind in accordance with law. Production of bill is not a condition precedent which might come to the rescue of tenant in case of default. (j) The Courts below ignored that it was a case of fixed terms tenancy and even notice was not required before filing of the suit, therefore, assuming though not admitting that notice was invalid this could not be a ground for dismissal of the suit. (k) In any case, it is settled that taxes are part of rent and non-payment of the same would amount to default and in the present case, it was admitted case of the defendant that he had never paid any taxes. (l) The Courts below ignored cardinal principle of law that litigant could not suffer due to mistake of counsel, mistake of pleading etc., and prime consideration of the Court is to do substantial justice between the parties and not to deny relief on mere technicalities". ;