National Seeds Corporation Of India vs Ram Kishan Singh

Lok Pal Singh, J

Petitioner has invoked the extraordinary jurisdiction of this Court under Article 226/227 of the Constitution of India, seeking writ in the nature of

certiorari quashing the impugned order dated 05.11.2014 passed by the Civil Judge (Jr. Div.)/Judge Small Cause, Kashipur, District Udham Singh

Nagar.

Facts, in brief, are that the petitioner let out the residential flat to the respondent @ Rs. 300/- per month w.e.f. 01.09.1995 for a period of eleven

months. A rent deed was executed between the parties. Petitioner issued notice to the respondent to vacate the premise in question, as period of

tenancy was over but the notice issued by the petitioner were not complied with, thus petitioner constrained to issued registered notice dated

4.01.2010, terminating the tenancy of the respondent. Despite notice to the respondent, tenanted accommodation was not vacated, then the petitioner

constrained to institute suit for recovery of rent and ejectment against the respondent.

The defendant (respondent) filed its written statement, though, admitted the tenancy but contended that the property in dispute is not governed by

the provision of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act 13 of 1972) therefore, the suit filed by

the plaintiff is not legally tenable. It is also contended that the tenant was regularly depositing the rent of the demise property and has already paid the

rent upto January 2010. It is contended that he deposited the rent w.e.f. February 2010 to June 2010, along with court fee, advocate fee and

miscellaneous expenses through chalan on 29.04.2010, thus, the plaintiff/petitioner is not entitled to get damages charges from the respondent. It is

contended that so many quarters are lying vacant with the plaintiff, thus the premise in dispute is not required to the plaintiff, therefore, suit is liable to

be dismissed.

On the pleadings of the parties, trial court formulated the following point of determination:-

(i) Whether the provisions of U.P. Act No. 13 of 1972 are applicable in the property in dispute or not?

(ii) Whether the court has a jurisdiction to hear the suit?

(iii) Whether there was a landlord and tenant relations between the plaintiff and defendant. If yes, effect?

(iv) Whether by notice dated 04.01.2010 the tenancy of the defendant was terminated and after expiry of the notice period, whether the defendant is

unauthorized occupant over the said property?

(v) Whether the plaintiff is entitled for any damages charges?

(vi) Whether the plaintiff is entitled for any compensation?

The trial court has decided issue no. 1 and 2 as preliminary issue and has held that the provisions of U.P.Act, No. 13 of 1972 are not applicable

over the demised property as this fact is admitted by the petitioner. Being the property belongs to the plaintiff, which is a government corporation, thus

the provision of section 15 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 are applicable over the demised property and has

held that the trial court has no jurisdiction to decide it and dismissed the suit on preliminary point no. 1 and 2.

Heard learned counsel for the parties and perused the record.

Admittedly, the suit property was let out by the petitioner on rent to the respondent @ Rs. 300/- per month, thus, the respondent cannot be

considered as an unauthorized occupant of the suit property. In view of the provisions contained in section 2 (g) of the Act 1971, suit for recovery of

rent and ejectment by the landlord against the tenant after terminating the tenancy is maintainable before Judge, SCC. A tenant after terminating the

tenancy cannot be treated as an unauthorized occupant. The trial court has misconstrued the provisions of section 2(g) of the Act 1971 and committed

illegality in holding that the Judge, SCC has no jurisdiction to hear and decide the suit and suit is barred by section 15 of the Act 1971.

Learned counsel for the respondent would submit that against the impugned order passed by Judge, SCC, revision under section 25 of the Provincial

Small Cause Courts Act is maintainable, the petitioner without invoking the statutory remedy of revision has straightaway filed the writ petition before

this Court which is not maintainable.

Present petition had been filed on 21.12.2015. Despite time granted to the respondent, no counter affidavit has been filed in the matter. But, after

more than a period of four years of entertaining the writ petition it would not be proper to this Court to direct the petitioner to avail statutory remedy of

revision before the District Judge in view of the fact and law that the trial court has committed patent error of law in dismissing the suit of the plaintiff,

despite the admission of the defendant/ respondent that he was inducted as tenant in the demise property. A person cannot blow hot and cold at the

same time. The respondent who claims himself to be a tenant cannot be permitted to say that he is a unauthorized occupant. Thus, plea raised by the

respondent that the petitioner be relegated to avail the statutory remedy of revision is misconceived, after lapse of 5 years, more particularly when the

trial court has absolutely committed patent error of law in dismissing the suit.

Jurisdiction under Article 227 of the Constitution of India is superintending in nature and revisional in nature. Thus, this Court has a jurisdiction to

decide the revision. Instead of revision, if writ petition is filed it makes no difference and the jurisdiction under Article 227 of the Constitution of India

can be exercised instead of statutory remedy of revision.

Thus, the objection raised by the respondent that the petitioner be relegated to avail the statutory remedy, is overruled.

Having considered the fact and circumstances of the case, this Court is of the considered view that the impugned judgment passed by the trial

court is patently illegal and serious miscarriage of justice has been done with the petitioner. Thus, the impugned order dated 5.11.2014 is liable to be

set aside and the matter be remitted to the trial court to decide the suit in accordance with law.

In view of the aforesaid discussion, the impugned order dated 05.11.2014 is hereby set aside. Writ petition is allowed. Since, the trial court decided

the suit on preliminary issues, the matter is remanded back to the trial court to decide the suit expeditiously, in accordance with law, after giving

reasonable opportunity of hearing to the parties. Since, the suit is of the year 2002, the trial court is directed to decide the suit expeditiously on priority

basis preferably within six months from the date of production of certified copy of this order. Unnecessary adjournment to the parties shall be avoided.

Parties shall remain present before the trial court on 30.05.2019.

No order as to costs.