High Court
Case Details
Neutral Citation No. - 2025:AHC:50003 Court No. - 2 Case :- MATTERS UNDER ARTICLE 227 No. - 2823 of 2025
Legal Reasoning
Petitioner :- Smt. Krishna Sharma Respondent :- Sharad Kumar Agrawal And 2 Others Counsel for Petitioner :- S.K. Mishra Hon'ble Neeraj Tiwari,J. 1. Supplementary affidavit filed today is taken on record. 2. Heard learned counsel for the petitioner-defendants and Sri Diwakar Tiwari, learned counsel for the plaintiffs-respondents. 3. Present petition has been filed challenging the order dated 30.01.2021 passed in SCC Suit No. 06 of 2011, affirmed by Revisional Court vide order dated 29.01.2025 passed in SCC Revision No. 06 of 2021. 4. Learned counsel for the petitioner-defendant submitted that SCC Suit No. 06 of 2011 had been filed by the plaintiff-respondent No. 1 for compensation of damages and eviction of house in question. He next submitted that he has filed written statement and on completion of the pleadings, five points of determination were framed by the SCC Court vide impugned order dated 30.01.2021. 5. Basically, petitioner-defendant is aggrieved with the disposal of point of determination Nos. 2, 3 & 5. 6. Point of determination No. 2 was as to whether, notice of the suit is illegal notice or not. 7. Learned counsel for the petitioner-defendant submitted that date so mentioned in the notice is factually incorrect and therefore, notice is to be treated defective and once the notice is defective, whole proceeding may not sustain. 8. Per contra, learned counsel for the plaintiffs-respondents submitted that in the written statement, it is only stated that notice is against the facts and law, whereas, learned SCC Court has given specific finding that notice was duly served through registered post and received by the petitioner-defendant and point of determination was decided in favour of the plaintiffs-respondents and the same has also been affirmed by the Revisional Court vide order dated 29.01.2025. Therefore, there is no illegality in the disposal of point of determination No. 2 by the SCC Court vide order dated 30.01.2021. 9. I have considered the submission of learned counsel for the parties and perused the record with regard to point of determination No. 2. 10. From the perusal, it is apparently clear that notice was sent through registered post and served upon the petitioner-defendant on 21.12.2010. In the written statement filed by the petitioner- defendant, there is no denial of service of notice. Therefore, I find no infirmity in the finding so recorded by the SCC Court vide order dated 30.01.2021 affirmed by Revisional Court vide order dated 29.01.2025 with regard to point of determination No. 2. 11. Point of determination No. 3 was as to whether, SSC Suit is barred by the provision of Section 23 of Provincial Small Causes Act, 1887(hereinafter, referred to as, 'Act, 1887'). 12. Learned counsel for the petitioner-defendant submitted that plaintiffs-respondents are not the owner of the house in question, neither petitioner-defendant is tenant of plaintiffs-respondents and the sale-deed dated 17.05.2000 executed in favour of the plaintiffs- respondents is void. Once the title of the house in question is in dispute before the SCC Court, it is required on the part of the Court to return the plaint under Section 23 of the Act, 1887 to file the same before appropriate Court. 13. Per contra, learned counsel for the plaintiffs-respondents submitted that undisputedly, sale-deed dated 17.05.2000 in question is still in existence and it has not been cancelled by any competent court of law. Therefore, oral averment not supported by any evidence may not be a ground to return the Suit in light of Section 23 of the Act, 1887. 14. I have considered the submission of learned counsel for the parties on this point and perused the record. 15. It transpires that undisputedly, sale-deed dated 17.05.2000 is in favour of the plaintiff-respondent No. 1 and till date same has not been cancelled by any competent court of law. There being a situation as such, plaint cannot be returned under Section 23 of the Act, 1887 by the SCC Court. Therefore, SCC Court has rightly held that suit is not barred by Section 23 of the Act, 1887. Revisional Court has also affirmed the finding of SCC Court on point of determination No. 3 and has given specific finding that sale-deed dated 17.05.2000 is a registered sale-deed and in light of that, prima facie, plaintiffs-respondents are the owner of the house in question. Even, no document has been produced before the Revisional Court about the cancellation of sale-deed dated 17.05.2000. 16. Therefore, this Court is of the view that point of determination No. 3 has been rightly decided by SCC vide order dated 30.01.2021 Court affirmed by Revisional Court vide dated 29.01.2025. 17. Point of determination No. 5 is as to whether petitioner- defendant is defaulter in payment of rent or not. 18. Learned counsel for the petitioner-defendant submitted that as the petitioner-defendant has denied the ownership of plaintiffs- respondents over the house in question, there is no occasion for the petitioner-defendant to pay the rent. 19. Per contra, learned counsel for the plaintiffs-respondents submitted that after receiving of notice, it is required on the part of the petitioner-defendant to deposit the entire due rent on or before first date of hearing, which has not been deposited admittedly. Therefore, the Court has rightly held that petitioner-defendant is defaulter in payment of rent. 20. I have considered the submission of learned counsel for the parties on this point and perused the record. 21. From perusal, it is apparently clear and admitted that petitioner-defendant has not deposited any rent and also after receiving the notice on or before first date of hearing, no rent has been deposited. Therefore, SCC Court has rightly held petitioner- defendant defaulter in payment of rent and Revisional Rourt has also affirmed the finding of the SCC Court. 22. Apart that, Revisional Court has also considered the landlord- tenant relationship between the parties and has specifically held that petitioner-defendant is tenant of plaintiff-respondent. 23. Under such facts and circumstances of the case, I find no infirmity or illegality in the impugned orders dated 30.01.2021 & 29.01.2025. 24. Petition lacks merit and is accordingly dismissed.
Decision
25. No order as to costs. Order Date :- 7.4.2025 ADY Digitally signed by :- AMAR DEEP YADAV High Court of Judicature at Allahabad