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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JUJRISDICTION CIVIL APPEAL NO. 20833 OF 2017

ARISING OUT OF SLP (C) NO. 33994 OF 2014 TRILOK SINGH CHAUHAN ... APPELLANT

VERSUS RAM LAL(DEAD) THR. LRS     ... RESPONDENTS

J U D G M E N T ASHOK BHUSHAN, J. 1. This appeal has been filed against the judgment dated

26.08.2014 of High Court of Uttarakhand in Civil Revision

No. 32 of 2010 by which judgment High Court has allowed

the Revision and set aside the order passed by the Judge,

Small  Causes  Court  directing  the  eviction  of  the

respondent-tenant with recovery of rent and damages.  The

landlord aggrieved by the judgment has come up in this

appeal.

2. Brief facts of the case, necessary to be noted for

deciding this appeal are:

The appellant is the owner of Shop No. 46 Adarsh Gram

Chauhan  Market,  Yatra  Bus  Station,  Rishikesh.   The

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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

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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/-.

3. High  Court  also  allowed  three  week's  time  to

respondent to file amended written statement. Additional

counter  statement  was  filed  by  the  respondent.   Trial

Court framed an additional issue on 20.01.2009 which is

to the following effect:

“1. Whether the plaintiff has waived to oppose for eviction in  his notice dated 07.09.2001? If yes, whether the required relief added by the plaintiff is barred to the limitation as stated in the additional counter statement.”

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4. Parties led their evidences before the Trial Court

including the documentary evidences. 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.

5. 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.

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6. Learned counsel for the appellant submits that the

High Court committed error in upsetting the findings of

fact regarding rate of rent which was held by the Trial

Court as Rs. 1500/- per month but reversed by the High

Court holding it to be Rs. 250/- per month only. It was

further stated that the tenant is in possession of shop

for nineteen years and although tenancy was terminated by

landlord after one month of the service of the notice,

appellant could not get the possession of the shop.  The

counsel for the appellant referring to Page No. 88 and 89

of the paper book submits that Trial Court has given

cogent  reasons  and  considered  relevant  evidence  for

recording a finding that rate of rent is Rs. 1500/- per

month which has been set aside by the High Court.   

7. Learned  counsel  appearing  for  the  respondent,

refuting the submission of the learned counsel for the

appellant contends that the Trial Court while decreeing

the suit had not adverted to the additional issues which

were framed by the Trial Court on 20.01.2009. He submits

that  Trial  Court  having  not  adverted  to  additional

issues, the Revisional Court has rightly set aside the

judgment and order of the Trial Court and dismissed the

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suit.

8. We have considered the submissions of the learned

counsel for both the parties and perused the record.

9. The basis of judgment of the High Court in setting

aside the judgment of the Trial Court is the reversal of

the findings regarding rate of rent.  As noted above, the

case of the plaintiff was that the rate of rent is Rs.

1500/- per month whereas the case of the tenant was that

rate of rent was Rs. 250/- per month. The High Court

while coming to the conclusion that the rate of rent is

Rs. 250/- per month gave following reasonings:

"I have perused the impugned judgment of the trial court and find the force in the argument so submitted by the learned counsel of the revisionist and instead remanding the case and lingering this old litigation further between the parties, I am of the view that no rent due was payable to the landlord at the time of issuing  the  notice  dated  07.09.2001. Relatively, the oral testimony of the landlord is  rebutted  by  the  oral  testimony  of  the tenant, revealing the fact that the tenanted premises was taken on the rent to the tune of Rs. 250/- per month with a payment of premium of  Rs.  1,20,000/-  wherefor  no  receipt  was issued by the landlord to the revisionist. The fact can not be over sighted that this is in quite prevalent practice in such matters that

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the landlord takes the lump sump premium from the tenant, as has been taken in the instant case.  After taking such a hefty premium, the rent must not be more than what it has been stated way back in the year 1994.

No additional reliable testimony has been brought by the landlord on record to create the force in his pleadings.”

10. Learned counsel for the appellant has referred to

findings of the Trial Court at Page No. 88 and 89. It is

useful to refer to the discussions made by the Trial

Court deciding the Issue No. 1, which issue was whether

the respondent is tenant in the disputed shop of the

plaintiff for the rate of rent, a sum of Rs. 1500/- per

month? The discussion of the Trial Court at Page No. 88

to 90 is as follows:  

“.....In support of the above statement, the plaintiff produced the Evaluation List for the period  2004-2009  issued  by  the  Executive Officer, Nagar Palika, Rishikesh vide document no. 96Ga. Though, it also clearly proves that the rent of above disputed property is equaled to Rs. 1500/- per month.  The respondent has not filed any documentary evidence to oppose the above fact which it can be proved that the rent of the above disputed shop is equaled to Rs. 250/- per month in place of Rs. 1500/- month.

It clearly proves from the statements of the  above  witnesses  and  the  documentary evidence available on record that any written agreement regarding the rent of the questioned property  has  neither  been  made  between  the

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parties  nor  filed  any  rent  receipt  by  the respondent against the payment of rent though it is accepted by both the parties that the plaintiff himself used to come at shop for the collection of rent and the respondent used to acknowledge the entry of this payment of rent in his diary at the shop.

The respondent ought to have proved this fact that the rent of the above questioned shop  was  equaled  for  sum  of  Rs.  250/-  per month.  The respondent should have produced the  above  diary,  which  was  important documentary  evidence  and  having  under  the possession  of  the  respondent  and  the signatures of the plaintiff were also taken in this diary, therefore, the adverse presumption shall be taken against respondent u/s 114 of the Evidence Act due to having not to produce the above diary. This fact cannot be proved by the respondent; therefore, after analyzing the above facts, I am of the view that there is not  present  any  ground  to  disbelieve  the statement of the plaintiff in which he stated the rent was equaled for sum of Rs. 1500/- per month.....”  

11. 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

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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.

12. The High Court was exercising the jurisdiction under

Section  25  of  the  Act,  1887  which  provision  is  as

follows:  

"Sec. 25. Revision of decrees and orders of Courts of Small Causes:

The  High  Court,  for  the  purpose  of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.”

13. The scope of Section 25  of the Act, 1887 came for

consideration before this Court on several occasions. In

Hari Shankar & Ors. Vs. Rao Girdhari Lal Chowdhury, AIR

1963 SC 698, in Para Nos. 9 and 10, this Court laid down

the following:  

“9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause  Courts  Act.  That  section  has  been considered  by  the  High  Courts  in  numerous

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cases  and  diverse  interpretations  have  been given. The powers that it is said to confer would make a broad spectrum commencing, at one end,  with  the  view  that  only  substantial errors of law can be corrected under it, and ending,  at  the  other,  with  a  power  of interference  a  little  better  than  what  an appeal gives. It is useless to discuss those cases in some of which the observations were probably  made  under  compulsion  of  certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the  meaning  of  such  sections  is  that  of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj, (1938) 40 Bom LR 125: (AIR 1938 Bom 223) where the learned Chief Justice,  dealing  with  Section  25  of  the Provincial Small Cause Courts Act, observed:

"The  object  of  Section  25  is  to enable the High Court to see that there has  been  no  miscarriage  of  justice, that the decision was given according to law. The section does not enumerate the  cases  in  which  the  Court  may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an  exhaustive  definition  of  the circumstances  which  may  justify  such interference;  but  instances  which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court  has  based  its  decision  on evidence  which  should  not  have  been admitted,  or  cases  where  the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes  to  the  conclusion  that  the unsuccessful party has not had a proper trial according to law, then the Court

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can interfere. But, in may opinion, the Court  ought  not  to  interfere  merely because  it  thinks  that  possibly  the Judge  who  heard  the  case  may  have arrived at a conclusion which the High Court would not have arrived at.”

This observation has our full concurrence.

10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view,  the  learned  single  Judge  was  not justified in interfering with a plan finding of  fact  and  more  so,  because  he  himself proceeded on a wrong assumption.”

14. Another judgment which needs to be noted is judgment

of this Court in Mundri Lal Vs. Sushila Rani(Smt) & Anr.,

(2007) 8 SCC 609.  This Court held that jurisdiction

under  Section  25  of  the  Act,  1887  is  wider  than  the

Revisional  Jurisdiction  under  Section  115  C.P.C.   But

pure finding of fact based on appreciation of evidence

may not be interfered with, in exercise of jurisdiction

under  Section  25  of  the  Act,  1887.  The  Court  also

explained the circumstances under which, findings can be

interfered with in exercise of jurisdiction under Section

25.  There are very limited grounds on which there can be

interference in exercise of jurisdiction under Section

25; they are, when     (i) Findings  are  perverse  or

(ii)based  on  no  material  or  (iii)  Findings  have  been

arrived  at  upon  taking  into  consideration  the

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inadmissible evidences or (iv) Findings have been arrived

at without consideration of relevant evidences.

15. 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.

16. The submission which has been much pressed by the

learned counsel for the respondent is that Trial Court

has  not  adverted  to  the  additional  issues  which  were

framed by the Judge, Small Causes Court after allowing

the amendment.  The additional issue was as to whether

the plaintiff has waived to oppose for eviction in his

notice dated 07.09.2001 and whether the prayer for relief

added  by  the  plaintiff  is  barred  by  limitation.  The

notice  dated  07.09.2001  brought  on  record  by  the

appellant as Annexure P.1. Notice after setting out facts

and claim in last paragraph states as follows:  

“Therefore, you are hereby given the notice

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that you should pay the whole outstanding rent of my client from December 2000 to till today at  the  rate  of  Rs.  1500/-  per  month  with interest within one month from the date of receipt  of  this  notice  and  the  tenancy  be terminated and shall be treated as terminate after  passing  above  prescribed  period.  You shall also be liable to pay the compensation at the rate of Rs. 50/- per day to my client after  passing  the  above  limitation  and  the suit  will  be  filed  against  you  before  the competent court, for which you will be sole responsible for all the costs and expenses. You should pay the expenses of notice for sum of Rs. 500/-.  You are informed hereby that the  copy  of  this  notice  has  been  put  into custody at my office for further need. The second copy of this notice is being forwarded to you through U.P.C. Post.”

17. The notice clearly contemplated the termination of

the tenancy after expiry of one month. It is relevant to

note that the High Court in its judgment has noted the

arguments of revisionists regarding non-decision of the

additional issues. The High Court noticed the aforesaid

submission in following words:

“Learned  counsel  of  the  revisionist  has vehemently  argued  that  none  of  such  added point of determination has been dealt with by the court below in the body of the judgment, much less any finding on either of them....”   

18. High Court although noted the above submission but

has  not  proceeded  to  examine  the  above  contention  or

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recorded any finding in favour of the respondent. Trial

Court had already framed Issue No. 9 to the following

effect: “Whether the plaintiff has any right to evict the

respondent from the disputed property?”  The issue was

answered in favour of plaintiff.

19. Although, the above argument was not adverted by the

High  Court  but  since  the  respondent  has  raised  the

argument  before  us,  it  is  necessary  to  consider  the

above-said  argument.  The  additional  issue  as  noticed

above is as to whether by notice dated 07.09.2001 the

landlord  has  waived  his  right  of  eviction.  From  the

averments of notice, as quoted above, it is clear that

tenancy  was  terminated  and  landlord  contemplated

eviction of the tenant. We thus are of the view that

there is no question of the waiver of eviction.  The

prayer of eviction which was formally added by amendment

can not be said to be barred by time since suit was

filed in the year 2001 itself. It was clearly pleaded in

the  plaint  that  in  spite  of  the  service  of  notice

neither payment of balance amount of rent has been made

nor the possession of the shop has been given to the

respondent, even after, terminating the tenancy. In para

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4 of the plaint following was stated:  

“4. That  the  tenancy  of  the  respondent  had been terminated by the plaintiff through above notice but the above shop of the plaintiff had neither  been  vacated  nor  entrusted  the possession by the respondent.  The respondent did not receive this notice deliberately.  The denial of acceptance of the service of above notice was recorded on the envelope of above registered post. It was necessary to file the above  case  due  to  non-compliance  of  above notice, do not make the payment of balance amount  of  rent  and  do  not  delegate  the possession of the shop to the plaintiff by the respondent even after terminating tenancy.”  

20. Thus,  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.

21. In result, the appeal is allowed. The judgment and

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order of the High Court is set aside and decree of the

Judge, Small Causes Court is restored. The parties shall

bear their own costs.  

......................J.    (A. K. SIKRI)

......................J.   (ASHOK BHUSHAN)

NEW DELHI, December 11, 2017