Supreme Court Judgment for eviction of Tenant and recovery of rent and damages

December 12, 2017

A Bench of Supreme Court Judges Justice A.K. Sikri and Justice Ashok Bhushan dealt with an appeal filed by the landlord against the Judgment passed by High Court of Uttarakhand by allowing the Revision Petition and set aside the order passed by the Judge, small causes court directing the eviction of the tenant with recovery of rent and damages.

The landlord (appellant) is the owner of Shop No. 46 Adarsh Gram Chauhan Market, Yatra Bus Station, Rishikesh. The respondent is carrying on business of clothe merchant in the shop as tenant. A notice dated 07.09.2001 was issued that respondent has not paid the rent of above-mentioned shop from December, 2000 till present date. The rate of rent was claimed as Rs. 1500/- per month. Notice was given to pay the whole outstanding rent with interest within one month from the receipt of the notice, failing which tenancy shall be treated as terminated. After prescribed period damages at the rate of Rs. 50/- per day were also claimed. As notice was not replied, the appellant filed a Small Causes Case No. 32 of 2001 in the Court of Additional District Judge praying for recovery of rent with compensation and expenses and any other relief. The written statement was filed by the respondent where he denied the rate of rent to be Rs. 1500/- per month. It was stated that the rate of rent is only Rs. 250/- per month and since October 1994, he is carrying on business of clothe. It was stated that the plaintiff has already received the rent for the month of August, 2001 but he did not issue any receipt. Appellant has stopped to receive the collection of rent from September, 2001. The respondent forwarded the total rent of Rs. 1250/- for the period of September, 2001 to January, 2002 at the rate of Rs.250/- per month through money order which was denied, stating that 'it is denied to accept due to this amount is less than the actual amount'.

Respondent pleaded that premises is covered by U.P. Act No. 13 of 1972. Trial Court by order dated 13.05.2004 framed ten issues. An application for amendment was filed by appellant for adding a prayer 'that the plaintiff may be given possession of disputed shop which is stated in the list of property annexed at the end of the plaint after evicting the respondent from the above shop'. The amendment application was although rejected by the Trial Court on 25.4.2007, but the High Court by an order dated 05.08.2008 allowed the amendment application subject to payment of cost of Rs. 3000/-.

Trial Court after considering the evidences of the parties decided issue No. 1 in favour of the appellant that rate of rent is Rs.1500/- per month. Other issues were also decided in favour of the appellant, consequently, the Trial Court passed a decree of eviction against the respondent-tenant with balance amount of payment of rent and damages at the rate of Rs. 50/- per day.

Aggrieved by the above-said judgment, the respondent filed a Revision before the High Court. The Revision filed by the respondent was under Section 25 of the Provincial Small Cause Courts Act, 1887(hereinafter referred to as 'Act, 1887'). The High Court vide its judgment allowed the Revision and set aside the judgment and decree of the Trial Court holding that rate of rent is Rs. 250/- per month and not Rs. 1500/- per month. High Court also made observation against the landlord that the motive of landlord is to secure the possession back and profit hunting.

The court said that "The findings recorded by the Trial Court were based on evidence brought on record. A reference to Evaluation List for the period 2004-2009 by the Executive Officer, Nagar Palika, Rishikesh vide document No. 96Ga was also mentioned. Trial Court has further drawn an adverse inference against respondent that he had not produced the diary in which acknowledgment of the entry of the payment of rent was made by the appellant. The entire discussion of the High Court as extracted above, does not refer to above two factors which weighed that the Trial Court in coming to the conclusion that rate of rent is Rs. 1500/- per month. We thus are of the clear opinion that High Court committed an error in setting aside the findings of the Trial Court on the rate of rent."

"Present is not a case where High Court set aside the finding of the Trial Court on any of above grounds where Revisional Court under Section 25 can interfere. High Court has not even referred to the reasons given by the Trial Court while coming to the conclusion that the rate of rent is Rs. 1500/ per month. We thus are of the view that judgment of the High Court is unsustainable."

"The landlord was clearly insisting on termination of the tenancy and was also mentioning a cause of action of not handing over of the possession. In these circumstances, we are of the view that it cannot be held that there was any waiver of relief of eviction either on the notice or in the suit. Formal prayer has already been added in the plaint seeking possession of shop after eviction which amendment was allowed by the High Court in its judgment dated 05.08.2008. We are thus of the view that High Court committed an error in setting aside the judgment and decree of the Judge, Small Causes Court."

With these observations the court allowed the appeal, set aside the judgment and order of the High Court and restored the decree of the Judge, small causes court.

Read the Judgment of Supreme Court dated 11.12.2017