Mahesh Chand vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

A proceeding for eviction of the petitioner was initiated by respondent no.2 from the shop which has been more particularly despite at the foot of the plaint having an area of 8 ft. X 14 ft. situated at Ladpur, Raipur Road, Dehradun, boundary of which has been more particularly detailed at the foot of the plaint which is quoted hereunder:-

"उत्तर में : सडक 30 फूट

दक्षिण में : मकान श्री मिश्रा जी

पूरब में : दुकान श्री सुरेन्द्र पाल

पष्चिम में : मकान श्री मिश्रा जी"

It was contended by respondent no.2 in the proceeding drawn by him under Section 15 of the Provincial Small Cause Courts Act, 1887, that the petitioner was a tenant of the shop in question on the date of creation of tenancy over the shop, which was agreed to be paid by him @ Rs.700/- per month. It was contended by respondent no.2 in the proceedings before the Provincial Small Cause Courts Act in the plaint that ever since December, 2005, the petitioner has defaulted in remittance of the rent and no rent as agreed was paid for the period from 01.01.2006 to 13.06.2007, hence, an amount of Rs.12,600/- is shown to have fallen due to be paid by the petitioner to respondent no.2, admittedly the landlord of the shop with whom the tenancy was created by the petitioner.

On account of the default being committed by the petitioner, the respondent no.2 had served him with the notice under Section 106 of Transfer of Property Act on 02.08.2007, directing him to vacate the premises and had terminated the tenancy and directed to pay the arrears of rent due to be paid by him to the respondent no.2 till the date of actual dispossession. The said suit proceeded on merits and ultimately, the suit was decreed by virtue of a judgment dated 27.08.2014, whereby, it was held that the petitioner was occupying the shop as a tenant at the behest of respondent no.2 on agreed the rate of rent as discussed in the body of this judgment dated 27.08.2014 i.e. @ Rs.700/- per month.

It was further held that after considering the evidence adduced by the parties that the petitioner was held out to be a defaulter in remittance of the rent from 01.01.2006 to 04.09.2007, thus the rent fell due to be paid by him.

This judgment and decree dated 27.08.2014 was put to challenge by the petitioner by preferring an SCC Revision under Section 25 of the Provincial Small Cause Courts Act , 1887, being Revision No.26 of 2014, Mahesh Chand vs. Rajendra Kumar. In the revision thus preferred by the petitioner, he himself has moved an application under Order 1 Rule 10 of the CPC contending thereof that the actual owner of the land over which the superstructure i.e. Kokha (Shop) tenement which was constructed in fact was a land which was belonging to the State Government and thus the State Government happens to be a necessary party in the proceedings before the court below.

The said impleadment application thus preferred by the petitioner under Order 1 Rule 10 of the CPC on 20.08.2018, was opposed by respondent no.2 by filing an objection on 04.09.2018, but ultimately, the application under Order 1 Rule 10 was allowed and the matter was contested by newly impleaded respondent no.1, later on after a contest on merits it was held out that the shop was existing on a land, the ownership of which stood vested with the State Government and consequently, the State Government had "demolished", the Kokha, in question which according to respondent no.1 was constructed unauthorisedly by encroaching on the land of the State. Now, the controversy which remains to be adjudicated was that in pursuance to the judgment and decree rendered by the Provincial Small Cause Courts, the petitioner was determined to be defaulter and was directed to deposit the decretal amount of Rs.1,95,000/- before the court below at the time of filing of the SCC Revision No.26 of 2014. The question which now arises is as to whether this amount would be remitted to respondent no.2 or it was to be refunded to the petitioner because as of now the shop has been demolished and respondent no.1 has been held to be owner of the land and not the landlord of the Kokha standing on it, under these situation, more particularly, when the respondent no.1 was held out to be the owner of the land, over which the Kokha was un-authorizedly constructed by respondent no.2. As far as the issue pertaining to the adjudication of revision on merits is concerned, the same was not pressed by the petitioner before the Revisional Court as Kokha (shop) already stood demolished, and no cause as of now survived to be decided and the only dispute which was sought to be adjudicated at that stage was pertaining to the remittance of the defaulted amount deposited by the petitioner in pursuance to the decree dated 27.08.2014, as consequence of the proceedings in which the petitioner has been held to be defaulter, and the amount fell due to be paid by him for the user of shop to respondent no.2.

As per the pleadings on record, one aspect which is quite apparent and which has been admitted by the petitioner is that there existed the relationship of the landlord when tenancy was created of the shop, and the tenancy which subsisted between the petitioner and respondent no.2 till the time petitioner raised the issue of ownership of the land on which shop existed, and also the establishment of the fact which stood settled by the court that the period as referred above, the petitioner has not remitted the rent and was held out to be a defaulter merely because at the revisional stage the respondent no.1 was held to be the owner of the land and the Kokha was held out to be un-authorizedly constructed by respondent no.2 which was later on demolished by respondent no.1 that will not entitle, the petitioner to get refund back of the amount of Rs.1,95,000/- which was the decretal amount, he has otherwise been held to have defaulted in pursuance to the decree dated 27.08.2014. For the reason being that the Revisional Court, while adjudicating the revision by the impugned judgment dated 15.05.2019 had considered the import of the provisions contained under Section 116 of the Indian Evidence Act, and it has been held that the amount paid by the petitioner before the Revisional Court in pursuance to the judicial interim order, in fact, was the amount which the petitioner was otherwise held liable to pay to the respondent no.2 as an amount for which he was held liable to pay which stood decreed by the learned Trial Court, and even otherwise also, the amount which has been sought to be refunded by the petitioner by Relief No.2, in the writ petition would not be payable to him because it was an amount of occupancy rights for use of the shop as tenant which was liable to be paid by the petitioner to respondent no.2 with whom he has never disputed that there didn't exist relationship of landlord and tenant. The petitioner is trying to misinterpret the issue from the view point that by virtue of impleadment of the State alleging thereof that the State happens to be the owner of the land over which the shop was constructed will not dispense with the petitioner's personal liability to pay the amount of rent payable by him for the period for which he has actually occupied the shop and has utilized the same in the capacity of tenant.

After going through the Revisional Court in precision and the amount which has been deposited by the petitioner as a consequence of the decree rendered by the Provincial Small Cause Courts Act, this Court is of the view that the Revisional Court has not committed any error as such in dismissing the revision and also has not committed any error has been committed by not issuing any direction for refund back of the decretal amount deposited by the petitioner in compliance of the decree rendered by the Provincial Small Cause Courts Act on 27.08.2014 to the petitioner.

In view of the above observations, this Court does not find any merit in the present writ petition and consequently, the present writ petition is hereby dismissed.

However, there would be no order as to costs.