Nakeem vs District Judge,Mathura & Ors.

S.P. Mehrotra, J.

The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia praying for quashing the order dated 23rd August, 2003 (Annexure 4 to the writ petition) passed by the learned Civil Judge (Senior Division), Mathura, and the judgment and order dated 22nd September, 2003 (Annexure 6 to the writ petition) passed by the learned District Judge, Mathura.

The dispute relates to a shop, the details whereof have been given in the plaint of SCC Suit No. 8 of 1998 referred to hereinafter. The said shop has, hereinafter, been referred to as the �disputed shop�.

From a perusal of the averments made in the writ petition and the annexures thereto, it appears that a suit for eviction, arrears of rent, and damages etc. was filed by the respondent No. 2 (Prayag Nath Chaturvedi) against the respondent No. 3 (Tulsi Das) in respect of the disputed shop.

It was, inter alia alleged in the said suit that the respondent No. 2 was the owner and landlord of the disputed shop, and that the disputed shop was let out to the respondent No. 3 on 2nd January, 1992 at a monthly rent of Rs. 450 for a period of five years, and that the respondent No. 3 had also executed a Kirayanama in favour of the respondent No. 2 and that in accordance with the term of Kirayanama, the period of lease had expired on 31121996, and that thereafter, the respondent No. 3 again took the disputed shop on rent at a monthly rent of Rs. 525 and again executed a Kirayanama on 211997 and that in accordance with the term of Kirayanamaya, the period of lease expired on 1101997, and that despite repeated demands by the respondent No. 2, the respondent No. 3 did not vacate the disputed shop, and that the respondent No. 2 through his Counsel gave notice dated 1511998 by registered post to the respondent No. 3 and that the respondent No. 3 refused to accept the said notice. The said suit was registered as SCC Suit No. 8 of 1998.

It further appears that by the judgment and order dated 25th May, 1999, the said suit being SCC Suit No. 8 of 1998 was decreed exparte. Copy of the said judgment and order dated 25th May, 1999 has been filed as Annexure 1 to the writ petition.

It further appears that an application dated 21st January, 2000 under Order IX, Rule 13 read with Section 151 of Code of Civil Procedure was filed on behalf of the respondent No. 3 for setting aside the said exparte decree, and resorting the said SCC Suit No. 8 of 1998 to its original number.

The said restoration application dated 21st January, 2000 filed on behalf of the respondent No. 3 was dismissed by the order dated 1st May, 2001 passed by the learned Civil Judge (Senior Division), Mathura.

Thereupon, the respondent No. 3 filed a revision, which was dismissed by the order dated 30th May, 2001 passed by the learned Additional District Judge, Court No. 7 Mathura.

Thereafter, the respondent No. 3 filed a Writ Petition before this Court being Civil Misc. Writ Petition No. 23720 of 2001. By the order dated 10th July, 2001, the said Civil Misc. Writ Petition No. 23720 of 2001 was dismissed by this Court. Copy of the said order dated 10th July, 2001 has been filed as Annexure 2 to the present writ petition.

It further appears that in the meantime, an execution application had been filed by the respondent No. 2, which was registered as Execution Case No. 5 of 1999.

It further appears that after the said order dated 10th July, 2001 passed by this Court dismissing the said Civil Misc. Writ Petition No. 23720 of 2001, the petitioner filed an application dated 9/10th August, 2001 (No. 5Ga) under Order XXI, Rule 97 of the Code of Civil Procedure in the said Execution Case No. 5 of 1999. The said application was registered as Misc. Case No. 8 of 2001.

It was, inter alia alleged by the petitioner in the said application (No. 5Ga) that the petitioner was in occupation of the disputed shop as tenant, and that earlier, the respondent No. 3 (Tulsi Das) had been in occupation of the disputed shop as tenant and that the respondent No. 3 (Tulsi Das) surrendered his tenancy in favour of the petitioner, and the petitioner took the disputed shop on rent at a monthly rent of Rs. 550 and that as regards payment of rent, it was agreed that the petitioner would pay Rs. 60,000 as premium to the respondent No. 2 and the rent would be adjusted towards interest accruing on the said amount of premium, and the tenancy would continue until the respondent No. 2 duly return the amount of premium to the petitioner, and that the issuance of warrant of possession in the execution case would affect the interest of the petitioner, and that the petitioner be given opportunity to present his case or give evidence in the said matter.

The respondent No. 2 (Prayagnath Chaturvedi) filed objections against the said application No. 5Ga under Order XXI, Rule 97 of the Code of Civil Procedure.

The parties led oral and documentary evidence in support of their respective cases.

By the judgment and order dated 23rd August, 2003, the learned Civil Judge (Senior Division), Mathura, dismissed the said application No. 5Ga filed on behalf of the petitioner under Order XXI, Rule 97 of the Code of Civil Procedure. On a consideration of the material on record, it was, inter alia held that the exparte decree passed in the said SCC Suit No. 8 of 1998 was not collusive, and that the petitioner was not in occupation of the disputed shop as tenant, and that the petitioner failed to establish any other interest in the disputed shop. Copy of the said judgment and order dated 23rd August, 2003 has been filed as Annexure 4 to the writ petition.

Thereupon, the petitioner filed a revision under Section 25 of the Provincial Small Cause Courts Act, which was registered as SCC Revision No. 16 of 2003.

By the judgment and order dated 22nd September, 2003 (Annexure 6 to the writ petition), the said SCC Revision No. 16 of 2003 was dismissed by the learned District Judge, Mathura. On a detailed consideration of the material on record, it was, interalia, held that the trial Court (learned Civil Judge (Senior Division), Mathura) had rightly appreciated the evidence of the parties and arrived at correct conclusion.

Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above.

I have heard Sri S.S. Upadhyay, learned Counsel appearing for the petitioner and Sri Rahul Chaturvedi, learned Counsel appearing for the caveatorrespondent No. 2 at length.

Shri Upadhyay, learned Counsel for the petitioner submits that the findings recorded by the Courts below in the impugned judgments and orders are erroneous and illegal.

From a perusal of the impugned judgment and order dated 23rd August, 2003 passed by the learned Civil Judge (Senior Division), Mathura, it is evident that the learned Civil Judge (Senior Division), Mathura, on a detailed examination of the material on record, categorical findings of facts. The learned District Judge, Mathura in the said judgment and order dated 22nd September, 2003 again considered the material on record, and agreed with the conclusions of the learned Civil Judge (Senior Division), Mathura in the said judgment and order dated 23rd August, 2003.

It is wellsettled that the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India does not interfere with the findings of facts recorded by the Courts below on a consideration of the material on record, unless such findings are shown to be manifestly illegal or perverse.

No illegality or perversity has been shown in the findings of facts recorded in the impugned judgment and orders passed by the Courts below. In the circumstances, no inference is called for with the said findings of facts by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.

In view of the aforesaid discussion, I am of the opinion that the writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.