Sri Gopal Prasad Jhindal and Another vs State of U.P. and Others

Prakash Krishna, J.—Challenging the order dated 22.7.2000 passed by the Additional District Judge, Firozabad exercising power of JSCC in SCC Suit No. 18 of 1992, the present revision has been filed u/s 25 of the Provincial Small Causes Court Act at the instance of the plaintiffs.

The background facts may be noticed in brief;

The plaintiff-applicants instituted the aforesaid suit for recovery of arrears of rent and ejectment against the defendant tenants namely State of U.P., Trade-Tax Commissioner and Trade Tax Officer. It was pleaded that the provisions of U.P. Act No. 13 of 1972 are not applicable. The premises in question was let out on a monthly rent of Rs. 150/ -, which was enhanced by the concerned Court in Case No. 36/90 in a proceeding u/s 21(8) of the said Act to Rs. 2488/ - p.m, w.e.f. 1.3.1988. The defendant tenant has failed to pay the enhanced rent. The tenancy was terminated by means of a registered notice dated 7.1.1992 which was served on the same day.

The suit was contested on the pleas inter alia that against the order passed u/s 21(8) of the Act regarding enhancement of the rent to Rs. 2,488/ -, the defendants have preferred an appeal and the matter is under consideration before the Appellate Court.

The parties led evidence in support of their respective cases. The trial Court dismissed the suit for eviction, as during the course of the argument before trial Court, the parties admitted that the defendants have vacated the accommodation in question. The suit for recovery of arrears of rent was decreed @ 150/ - per month on the ground that the matter is subjudice before the appellate authority regarding the enhancement of rent.

Heard the learned Counsel for the parties and perused the record.

At the very outset, the learned Counsel for the applicant submits that the observation made in the order under revision that the plaintiffs admitted that they have got the vacant possession during the pendency of the suit, is incorrect. He submits that the possession was handed over to the plaintiffs on 22.7.2002. Therefore, a decree for eviction ought to have been granted. Secondly, the appeal against the order fixing the rent at Rs. 2488/ - has been dismissed in default. The said appeal was filed with considerable delay of about three years when the defendants came to know about the present suit. The learned standing counsel, on the other hand, submits that the statement of fact as contained in the judgment that the defendants have vacated the premises in question during the pendency of the suit is correct and the said statement cannot be disputed in the present revision. He further submits that the application to restore the appeal to its original number has been filed which is pending consideration.

Considered the respective submissions of the counsel for the parties and perused the record.

Taking the first question first, it may be noted that since it is mentioned in the judgment that the plaintiffs have admitted before the trial Court that they have received the vacant possession, the said statement as contained in the impugned judgment cannot be disputed in the present revision. The remedy of the plaintiffs was to approach the said Court concerned by filing a review application if the statement was incorrect. A statement of fact as mentioned in a judgment is to be taken on its face value. Therefore, the first contention of the learned Counsel for the applicants has got no substance. Reference can be made to M.M. Basselios Catholicos and another AIR 1954 S.C. 526. It has been held that

(g) The proper procedure is to move the Court in whose judgment the error is alleged to have crept in. The application by way of review is to be made to the Court whose judgment is said to be founded on a misconception as to the concession made by the Advocate appearing before it. A misconception by the Court of a concession made by the Advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. There is no reason to construe the word "record" in a very restricted sense and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record.

Further, when the error complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit and this can only be done by way of review. The misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record. It is permissible to rely on the affidavit as an additional ground for review of the judgment

So far as the arrears of rent is concerned, the learned Counsel for the applicant is right in his submission that the plaintiffs are entitled for the rent/damages @ 2844/- which was determined in the proceeding u/s 21(8) of the Act. The things as they stand today, the defendants are liable to pay the rent/damages @ 2488/- per month. Mere pendency of a restoration application is of no consequence. The order fixing the rent @ Rs. 2488/ - is still in existence and was there before the trial Court.

In view of above discussions, the revision succeeds and is allowed in part. The decree of the trial Court is modified to the extent that the plaintiffs are entitled for recovery of rent and damages @ Rs. 2488/ - per month from the date of the enhancement of the rent till the date of actual vacation by the defendant opposite parties. The trial has not recorded a specific finding with regard to the date of vacation. It should have done so. Its judgment is 22.7.2000. The date of vacation on a fair guess work is fixed as 30.6.2000.

In view of the divided success of parties, no order as to costs.