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2014 Supreme(All) 2746
ALLAHABAD HIGH COURT
Anil Kumar, J.
Anita Sonkar - Appellant
Versus
Shakuntala Misra - Respondent
Civil Revision No. - 67 of 2012
Decided On : 02-04-2014
For the Revisionist :- Adnan Ahmad
For the Opposite Party :- V.N. Singh
The use of primary evidence and the competence of a Power of Attorney holder to depose in court were central to the court's decision.
Headnote:
EVICTION - TENANCY - Small Causes Court Act, 1887 - Section 20(4) of U.P. Act, 13 of 1972 - Order 15, Rule 5 C.P.C. - Agreement dated 1.1.2001 - Rs.700/- per month - Rs.25,900/- recovery - Power of Attorney holder's evidence - Evidence Act - Primary evidence - Secondary evidence
Fact of the Case:
The landlady filed a suit for eviction, arrears of rent, and damages against the tenant. The tenant defaulted on rent payment and the landlady terminated the tenancy. The court struck off the tenant's defense and decreed the suit in favor of the landlady.
Finding of the Court:
The court found that an agreement dated 1.1.2001 existed between the parties, establishing the tenancy at the rate of Rs.700/- per month. The court relied on the evidence of the Power of Attorney holder to decree the suit in favor of the landlady.
Issues: The issues included the existence of the tenancy agreement, the default in rent payment, and the validity of the Power of Attorney holder's evidence.
Ratio Decidendi: The court relied on the evidence of the Power of Attorney holder to establish the existence of the tenancy agreement and the default in rent payment. The court also emphasized the use of primary evidence to prove the contents of the agreement.
Final Decision: The court dismissed the revision, upholding the decree in favor of the landlady.
Anil Kumar, J.
Heard Sri Adnan Ahmad learned counsel for the revisionist, Sri V.N.Singh learned counsel for the respondent and perused the record.
2. By means of the present revision; revisionist has challenged the judgment and decree dated 29.5.2012 passed in S.C.C. Suit No.01/2009 (Shakuntala Mishra Vs. Smt. Anita Sonkar) by Small Causes Court/ Additional District Judge, Court No.1, Barabanki.
3. Factual matrix of the present case is that in village Nahar Colony Mohan Nagar, City, Pergana and Tehsil Nawabganj, District-Barabanki, a house consisting of one room was given to the tenant/revisionist on tenancy for 11 months by virtue of an agreement dated 1.1.2001 (unregistered) entered between Smt. Shakuntala Misra (the land lady) and Smt. Anita Sonkar. The tenant/revisionist was defaulter as she had not paid the rent as agreed between the parties, therefore, by means of a notice dated 24.12.2008 plaintiff/respondent terminated tenancy and claim damages. For use and occupation of the premises at the rate of Rs.700/- for month.
4. Thereafter on 29.2.2009, the landlady/Smt. Shakuntala Misra through R.P. Misra Power of Attorney holder filed a suit for eviction arrears of rent and damages under the provisions of Small Causes Court Act, 1887 registered as S.C.C. Suit No.01/2009, Smt. Shakuntala Misra wife of R.P. Mishra Vs. Smt. Anita Sonkar on 9.4.2009 revisionist filed written statement and denied the allegations of the plaint moved an application for deposit the rent in order to avail the benefit of Section 20(4) of U.P. Act, 13 of 1972 to which landlady/respondent has filed objection on 8.7.2009. On 18.11.2009 plaintiff/landlady filed an application under Order 15, Rule 5 C.P.C. for striking off defence of the petitioner which was rejected by an order dated 26.4.2010. Thereafter, the revisionist deposit rent in pursuance thereof petitioner/revisionist moved an application on 09.04.2009 which was number as Ga-16. Revisionist moved an application on 9.4.2009 for deposit the rent on 13.1.2011 and 7.10.2011. The plaintiff moved an application under Order 15, Rule 5 C.P.C. for striking off defence of the petitioner to which revisionist filed objection on 20.10.2010 and was allowed by order dated 12.08.2010.
5. Aggrieved by the said order Smt. Anita Sonkar filed Writ Petition No.32(R/C) 2012 Smt. Anita Sonkar Vs. Additional District Judge, Court No.1, Barabanki and Another. In addition to the above said facts on behalf of landlady/respondent on 28.4.2010 moved an application for amendment of plaint, to which on 03.05.2010 revisionist filed her objection, by order dated 12.08.2010 amendment application has been allowed. The said order has been challenged by revisionist in Writ petition No.136 (R/C) of 2010 (Anita Sonkar Vs. Additional District Judge & Another). In view of the above said facts in the present case, the right of defendant/revisionist to file her written statement has been struck off on an application moved by plaintiff- respondent under order XV Rule 5 of C.P.C. The Court below in order to decide the matter framed the following issues:
1. "Whether there is relation of landlord and tenant between the plaintiff and defendant, as alleged in the plaint?
2. Whether there is any agreement of the defendant with the plaintiff regarding the disputed house at the rate of Rs.700/- per moth, as alleged in para 5 of the plaint?
3. Whether the rent of 11 months, total Rs.7,700/- fell due on defendant, in which after adjustment of Rs.2000/- of advance, Rs.5,700/- remained pending on the defendant which she did not pay, as alleged in para 6 of the plaint?
4. Whether due to completion of 11 months of tenancy and not making payment of arrears of rent, the defendant is living as a trespasser in the disputed house, as alleged in para7 of the plaint?
5. Whether the plaintiff (landlord) is at present in need of the disputed house for personal use, as alleged in para 1A and 4 of the plaint?
6. Whether this Court has no jurisdiction to hear this s
