# Mukesh @ Lallu Saxena & Ors v. A.D.J.(Essential Commodities Act) Hardoi & Anr

- **Citation:** (2021) 7 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-01
- **Case number:** Rent Control No. 11921 of 2017
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-lallu-saxena-ors-v-a-d-j-essential-commodities-act-hardoi-anr-47146
- **Pages:** 8

## Headnote

answered based upon evidence recorded by the
trial court-no fresh evidence taken-no infirmity
in impugned order.

Held, It is settled law that jurisdiction in SCC
Revision is greater than the jurisdiction under
Section 115 C.P.C. and less that of as appeal.
(para 22)

W.P. dismissed. (E-7)

List of Cases cited:

## Text

110 INDIAN LAW REPORTS ALLAHABAD SERIES
genuineness created under Section 81 of
the Evidence Act does not give rise to any
presumption of genuineness about news
paper reports and it is not to be treated as
proof of facts stated in them. Such
statements are merely hearsay.

9. Thus, in view of said legal position,
when petitioner has failed to substantiate his
claim through any substantial documentary
evidence and has not taken pains to do proper
research on the subject to collect material
which can said to be credible in nature, we
are not persuaded to accept this petition as
Public Interest Litigation (PIL), but are
constrained to term it as a publicity oriented
litigation, which needs to be curtailed and
grafted in its root. Therefore, petition fails
and is dismissed with cost of Rs.20,000/-
----------
(2021)07ILR A110
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Rent Control No. 11921 of 2017

Mukesh @ Lallu Saxena & Ors.
 ...Petitioners
Versus
A.D.J.(Essential Commodities Act) Hardoi
& Anr. ...Respondents

Counsel for the Petitioners:
Anuj Dayal

Counsel for the Respondents:
Anurag Narain

Suit for ejectment-as tenancy got terminatedRevisional Court allowed the revision -directed
to vacate the shop-and give peaceful possession
to the lanlord-challenged-questions framed were
answered based upon evidence recorded by the
trial court-no fresh evidence taken-no infirmity
in impugned order.

Held, It is settled law that jurisdiction in SCC
Revision is greater than the jurisdiction under
Section 115 C.P.C. and less that of as appeal.
(para 22)

W.P. dismissed. (E-7)

List of Cases cited:

1. Allah Bux Vs Ist A.D,J, & ors., AIR 1996
Allahabad 49

2. Radhey Shyam Gupta Vs Jawahar Lal Bhatia,
(1996) 28 ALR, 518

3. Abul Alim Vs D.J., Jhansi & ors. 1995(2)
Allahabad Rent Case, 52

4. Hindustan Petroleum Corporation Ltd. Vs
Dilbahar Singh (2014) 9 SCC,78

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Anuj Dayal, learned
counsel for the petitioner and Sri Anurag
Narain, learned counsel for the respondentlandlord.

2. It is the case of the petitioner that
respondent no.2 filed a Suit for ejectment on
13.07.2005 registered as SCC Suit no. 10 of
2005 on the ground that respondent no.2 and
the wife of his brother Vedrani purchased the
property in question on 22.03.1984 and after
the death of Vedrani, the respondent alone is
the legal heir and owner and landlord of the
shop in question. Respondent no.2 had let out
one shop (herein referred to as shop in
question) to the father of the petitioners in
1985 on rent at the rate of Rs. 275/- per
month which included house tax and water
tax.The father of the petitioner had paid rent
as well as house tax and water tax till 30th
June,2001.The father of the petitioners
7 All. Mukesh @Lallu Saxena & Ors. Vs. A.D.J.(Essential Commodities Act) Hardoi & Anr.
111
expired on 27.03.2004 and after his death
petitioner had occupied the shop in question
as a joint tenancy. In the plaint filed by
respondent no.2, it was alleged that notice
was sent to the petitioners on 17.03.2005 for
arrears of rent which they refused to accept.
After lapse of statutory period, the of tenancy
got automatically terminated on 07.07.2005.
It was also stated in the plaint that petitioners
had sub-let the premises to one Deepu son of
Sri Rajendra Kumar Saxena on rent of
Rs.1000/- per month and the shop in question
is in possession of Deepu.

3. After filing of Suit the notices were
issued to the petitioners, they filed written
statement.
Although
they
accepted
relationship of landlord and tenant they stated
that they were giving rent and house tax and
water tax till January,2005 but landlord was
not giving any receipts to them. After
January,2005, landlord refused to accept the
rent. The petitioners denied the notice of
termination of tenancy saying that it was
never served upon them. The petitioners are
running a General Store in the shop in
question and after death of their father, Deepu
being his nephew was helping the petitioners
in the shop and he was not a sub tenant as
alleged in the plaint. It was also stated that the
petitioners and their mother were compelled
to prefer a suit for injunction which was
registered as Regular Suit no.72 of 2005 in
the court of Civil Judge (J.D.) (West) in
which interim order was passed that they
should not be evicted except in accordance
with law. Petitioners were liable to get benefit
of Section 20 (4) of the U.P. Urban Building
(Regulation of Letting, Rent and Eviction)
Act, 1972 as they had already preferred an
application
for
depositing
the
rent
unconditionally before the court below in
Regular Suit no. 72 of 2005. Since February,
2005 they were depositing the rent in SCC
Suit No. 10 of 2005 ( the petitioners made
an application on 13.12. 2005 before the
Judge Small Causes for permission for
depository of rent in Court under section
20(4) which was accepted).

4.

Learned
Additional
Civil
Judge/Judge Small Causes Court framed
seven issues for adjudication. The evidence
of respondent no.2 was taken. He admitted in
his statement that he wanted the petitioners to
vacate the premises because he wished to
start a Coaching Center for his unemployed
graduate son. Respondent no.2 also accepted
that Deepu was the nephew of late Rajesh
Kumar Saxena, the original tenant and he was
taking care of the shop but died during the
pendency of the Suit.

5. It has been argued by learned counsel
for the petitioners that in the statement given
by the landlord before the learned court
below he accepted the rent of the shop as
Rs.300/- which included water tax and house
tax. In the statement of petitioner no.1,he had
stated that petitioner had deposited rent upto
June 2005 and it was not disputed during
cross-examination by the plaintiff.

6. Learned court below found that there
was a relationship of landlord and tenant
between the petitioner and respondent no.2
and that the petitioner was also depositing the
rent in SCC no.10/2005 under section 20 (4)
of the Act,1972 which meant that the
petitioner was always ready and willing to
tender the rent to the landlord but he refused
to accept the same. Learned court below
observed that Deepu was the nephew of the
original tentant and was a family member
therefore there was no evidence of subletting.Learned Civil Judge/Judge Small
Causes Court dismissed the suit by judgment
112 INDIAN LAW REPORTS ALLAHABAD SERIES
and order dated 02.11.2015 . The suit for
injunction, namely Suit No.72 of 2005 was,
in the meantime, also decreed by an order
dated 22.12.2007 to the effect that defendantlandlord shall not evict the petitioners except
in accordance with the procedure prescribed
by law.

7. The landlord/respondent no.2
preferred a Revision against the judgment
and order dated 02.11.2015 registered as
SCC Revision no. 40 of 2015 again on the
ground of default in payment of rent and on
the ground of sub-letting. In the Revision, it
was stated that although the petitioner
preferred an application for depositing the
rent
in
Court
under
Section
20(4),
petitioner did not deposit water tax and
house tax.The Revisional Court has given a
finding that tenant did not deposit house tax
and water tax, therefore, they were not
entitled for the benefit of Section 20(4) of
the Act,1972.The Revisional Court also
held that Deepu was not a family member
of late Rajesh Kumar Saxena, the original
tenant and running of the shop in question
by him amounted to sub- letting.

8. It has been argued by learned
counsel for the petitioner that Revisional
court far exceeded its jurisdiction under
Section 25 of the provisions of Small
Causes Courts Act.The revisional Court
reopened the findings of fact recorded by
the Judge, Small Causes Court and wrongly
concluded
that
the
petitioners
were
defaulters and that Deepu was a sub
tenant.He failed to appreciate that the
petitioners were depositing rent in Court
and also that if tenanted premises were
occupied by family members,it cannot be
said to be case of sub-letting. Moreover the
alleged sub tenant Deepu had already
expired during the pendency of the SCC
Suit and petitioner no.1 was taking care of
the shop in question and he was legal heir
of the original tenant being his son.

9. Sri Anurag Narain has appeared for
opposite party no.2. He has pointed out the
averments made in the counter affidavit
filed by him on 22.03.2018 and also a
supplementary counter affidavit filed on
23.04.2019. It is the case of the respondent
no.2 that the statement recorded by learned
court below of landlord referred to another
shop in the same premises which had been
let out for Rs.300/- per month to some
other tenant which rent included house tax
and water tax. So far as shop in qustion is
concerned, its rent was only Rs.275/- and
did not include house tax and water tax
which had to be deposited separately.

10. It has been argued by Sri Anurag
Narain that unless it is indicated in the rent
agreement or otherwise by the conduct of
the parties in the past, tenant's failure to pay
water tax and house tax separately shall
amount to default in payment of rent. It has
also been argued that if payment of rent is
stopped for some reason, it is deposited in
the Court. To get the benefit of Section
20(4) of Act,1972 , the tenant has to
deposit not only rent, house tax and water
tax but also interest accrued thereon at the
rate of 9% and also costs including the
Advocate's fee.

11. It has been submitted that the
Revisional court did not exceed its
jurisdiction as there were only two
questions of law that were to be considered
by the Revisional court; one was with
regard to whether Deepu, the nephew of
late Rajesh Kumr Saxena could be said to
be a family member under section 3(g) of
1972 Act and other question was whether
non deposit of rent alongwith house tax and
water tax and interest and costs on the first
7 All. Mukesh @Lallu Saxena & Ors. Vs. A.D.J.(Essential Commodities Act) Hardoi & Anr.
113
date of hearing before the Court concerned
and thereafter failure to continuously
deposit month to month of rent, house tax
and water tax during the pendency of the
suit would amount to the tenant be declared
as defaulter.

12.

Learned
counsel
for
the
respondent no.2 has placed reliance upon
definition of "family members" under
Section 3(g) of the Act,1972 which
specifically included only spouse, malefemale parents, grand parents daughter of
original tenant or his grand daughters the
word "nephew" is not included in the
definition of family member.

The Revisonal court looking into
account to the fact that petitioners had not
denied that shop in question was being run
by Deepu, the newphew of late tenant and
the Revisonal court on the basis of
definition under Section 3(g) of the Acts
1972 rightly came to the conclusion that
nephew is not a family member and,
therefore,it amounted to sub-letting.

13.

Learned
counsel
for
the
respondent no.2 has also pointed out that
the findings recorded by learned revisonal
court in the order impugned that the
petitioners had not deposited rent alongwith
house tax and water tax and with interest
and costs either at the time of the institution
of the SCC Suit nor did they deposit the
said rent month to month regularly during
the pendency of suit Some-times the
tenants had given application for depositing
two months rent at others they had
deposited 15 months rent altogether,
without depositing house and water tax.
Learned counsel for the respondent no.2
had placed reliance upon the judgments
rendered by this Court in the case of
Allah Bux Vs. Ist Additional District
Judge and others, AIR 1996 Allahabad 49
and the judgment rendered by this Court in
the case of Radhey Shyam Gupta Vs.
Jawahar Lal Bhatia, (1996) 28 ALR, 518
and the judgment rendered by this Curt in
the case of Abul Alim Vs. District Judge,
Jhansi and others 1995(2) Allahabad Rent
Case, 52. To substantiate his arguments
regarding petitioner being defaulter for not
depositing rent month to month alongwith
house tax and water tax.

14. In Allah Bux Vs. Ist Additional
District Judge and others (supra) this Court
has considered the case of the the tenant
who fell in arrears of rent for six months
and deposited the same under Section 30 of
1972 Act in the Court concerned. The
tenant argued that he could not be said to
have committed any default wherein the
meaning of Section 20 of 1972 Act and
was, therefore, not liable for ejectment. The
Court observed that the landlord served
notice to the tenant for deposit of arrears of
rent for four months and on failure to
deposit the same despite such demand the
tenant was liable to be evicted. The service
of notice by landlord meant that landlord
was willing to accept the rent, therefore, the
tenant should not have deposited the same
in Court. A perusal of section 30 of the Act
of 1972 showed that it permitted to deposit
of rent in Court in the event of refusal by
the landlord. The landlord by sending
notice in writing to the tenant signified his
willingness to accept rent. Despite service
of notice the tenant chose to deposit the
arrears of rent in the Court of Munsif which
amounted to failure to comply 0f the
Section 20(4) and therefore he could not be
saved under Section 30 of Act.
114 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In Abul Alim Vs. District Judge,
Jhansi ( supra) a Coordinate Bench of this
Court considered section 7 of the Act 1972
wherein it has been provided that the
liability to pay water tax is that of the
tenant , subject to any contract in writing to
the contrary. It was held that when there
was no contract in writing to the contrary,
the liability of payment of water tax and
house tax was that of the tenant. The tenant
having not paid the water tax in addition to
and as part of rent,was liabile to eviction.
Such a Tenant can be saved by section
20(4) of the Act of 1972, if he deposited
the arrears of water tax on the first date of
hearing. However, the tenant had not
deposited the arrears even on the first date
of hearing hence the Court allowed the writ
petition filed by the landlord.

16. In Radhey Shyam Gupta Vs.
Jawahar Lal Bhatia (Supra), this Court
observed that the tenant should have
deposited their taxes also at the time of first
hearing under section 20(4) of the Act 1972
to avoid liability of eviction. The tenant
could have also deposited the amount under
section 30 of the Act in case of refusal of
landlord to accept it. Since neither of the
two options were exercised by the tenant he
was liable for eviction. Section 7 of the Act
of 1972 was quoted by Hon'ble Judge and it
was observed that there was a duty of the
tenant to pay water tax and he should not
wait for payment by the landlord to
Municipal authorities and then later on pay
the same. The court relied upon the
observations made in Abul Alim (supra) and
observed that although the provision is very
harsh as it effected the right to shelter of
the tenant but tenant should have been
advised correctly and he should have paid
the arrears of water tax at the time of first
hearing under section 20(4) of the Act. The
tenant having committed default he was
liable for eviction.

17. Sri Anuj Dayal in rejoinder has
submitted that it is evident from the
statement of respondent no.2 before learned
trial court that Deepu was the tenant's
nephew and he had died during pendency
of the Suit. Sri Anurag Narain however
pointed out from the statement of landlord
recorded by learned trial court that rent of
the adjoining shop was Rs.300 and it
included house tax and water tax. The shop
in question ws let out only for Rs. 275/- per
month.

18. This Court has considered the
judgement of the Revisonal Court under
challenge and finds therefrom that the
revisonal court after mentioning the fact of
filing of the SCC Suit and framing of issues
by learned trial court and decision therein
has referred to the question whether the
rent that was being paid by the petitioner at
the rate of Rs.275/- per month included
house tax and water tax or whether it was
exclusive of house tax and water tax which
has to be paid separately at the rate 10 % of
the rent of the shop. With regard to
question of default, the Revisional Court
has considered various applications made
by the petitioners herein in 2011-2012 and
then again in 2014 for depositing two
months of rent, fifteen months of rent and
six months of rent at the rate of Rs.275/-
per month only without tendering separate
amounts for house tax and water tax which
was their statutory duty to deposit @ 10%
of the monthly rent. He came to the
conclusion
that
rent
was
deposited
irregularly and the petitioners were in
default in depositing the rent also the
petitioners did not deposit house tax and
water tax at any point of time in Court.
7 All. Mukesh @Lallu Saxena & Ors. Vs. A.D.J.(Essential Commodities Act) Hardoi & Anr.
115

19. The Revisonal Court also found
that Deepu was the nephew and not a
family member of the original tenant and
the petitioners had admitted that he was the
running shop in question at the time when
the SCC Suit was filed although during the
pendency of SCC Suit he had died. Learned
Revisonal Court also observed that the
original tenant had been let out the shop in
1985 at the rate of Rs. 275/- per month. At
the time of decision of revision after 32
years, the tenans were paying only Rs.275/-
per month and that too irregularly and for
most of the time they were in default. They
were running a General Merchant business
in the shop in question .

20. Hence, the Revisional court
allowed the Revision, setting aside the
order passed by Judge Small Causes Court
dated 02.11.2015 and dircted the petioners
to vacate the shop and give its peaceful
possession to the landlord within two
months and also to pay all the arrears at the
rate of Rs.275/- per month to him.

21. With regard to the arguments
raised by learned counsel for the petitioners
that the Revisonal court exceeded its
jurisdiction unraveiling the findings of fact
recorded by the learned trial court.This
court finds that the Revisonal court was
entitled to look into the findings recorded
by the trial court in the light of statutory
provisions. There were two legal questions
to be considered by the Revisonal court;
one relating to whether a nephew can be
said to be a 'family member' under 1972
Act, and the other was whether house tax
and water tax can be said to be included in
the rent offered by the tenant in the absence
of any agreement between the parties and
whether failure to deposit arrears of rent
and monthly rent thereafter in the
learned trial court and during pendency of
revision before revisonal court amounted to
default,dis-entitling the tenant from the
protection of Section 20(4) of Act 1972.
Both these question have been answered by
the Revisonal Court based upon the
evidence that was recorded by the learned
trial court. No fresh evidence was taken to
come to the findings as recorded in the
judgment impugned.

22. It is settled law that jurisdiction in
SCC
Revision
is
greater
than
the
jurisdiction under Section 115 C.P.C. and
less that of as appeal. It has been so held by
the Constitution Bench of Hon'ble Supreme
Court in the case of Hindustan Petroleum
Corporation Limited Vs. Dilbahar Singh
(2014) 9 SCC,78.

23.

In
Hindustan
Petroleum
Corporation
Limited
Vs.
Dilbahar
Singh,(supra),the Constitution Bench of
Hon'ble Supreme Court was considering
the question of scope of Revison under
various Rent Control Acts as interpreted by
the respective High Court, and observed in
para 28 and 29 as follows:-

"28. Before we consider the matter
further to find out the scope and extent of
revisional jurisdiction under the above three
Rent Control Acts, a quick observation about
the "appellate jurisdiction" and "revisional
jurisdiction" is necessary. Conceptually,
revisional jurisdiction is a part of appellate
jurisdiction but it is not vice versa. Both,
appellate
jurisdiction
and
revisional
jurisdiction are creatures of statutes. No
party to the proceeding has an inherent right
of appeal or revision. An appeal is
continuation of suit or original proceeding,
116 INDIAN LAW REPORTS ALLAHABAD SERIES
as the case may be. The power of the
appellate court is coextensive with that of the
trial court. Ordinarily, appellate jurisdiction
involves rehearing on facts and law but such
jurisdiction may be limited by the statute
itself that provides for the appellate
jurisdiction. On the other hand, revisional
jurisdiction, though, is a part of appellate
jurisdiction but ordinarily it cannot be
equated with that of a full-fledged appeal. In
other words, revision is not continuation of
suit or of original proceeding. When the aid
of Revisional Court is invoked on the
revisional side, it can interfere within the
permissible parameters provided in the
statute. It goes without saying that if a
revision is provided against an order passed
by the Tribunal/appellate authority, the
decision of the Revisional Court is the
operative decision in law. In our view, as
regards the extent of appellate or revisional
jurisdiction, much would, however, depend
on the language employed by the statute
conferring
appellate
jurisdiction
and
revisional jurisdiction.

29. With the above general
observations, we shall now endeavour to
determine the extent, scope, ambit and
meaning of the terms "legality or propriety";
"regularity,
correctness,
legality
or
propriety"; and "legality, regularity or
propriety" which are used in the three Rent
Control Acts under consideration:

29.1. The ordinary meaning of
the word "legality" is lawfulness. It refers
to strict adherence to law, prescription, or
doctrine; the quality of being legal.

29.2. The term "propriety" means
fitness;
appropriateness,
aptitude;
suitability;
appropriateness
to
the
circumstances or condition conformity with
requirement; rules or principle, rightness,
correctness, justness, accuracy.

29.3. The terms "correctness" and
"propriety" ordinarily convey the same
meaning, that is, something which is legal
and proper. In its ordinary meaning and
substance, "correctness" is compounded of
"legality" and "propriety" and that which is
legal and proper is "correct".

29.4. The expression "regularity"
with reference to an order ordinarily
relates to the procedure being followed in
accord with the principles of natural justice
and fair play."

After considering the relevant
case laws , the Supreme Court give it
conclusion in para 43 as follows:-

"43. We hold, as we must, that
none of the above Rent Control Acts
entitles the High Court to interfere with the
findings of fact recorded by the first
appellate court/first appellate authority
because on reappreciation of the evidence,
its view is different from the court/authority
below. The consideration or examination of
the evidence by the High Court in
revisional jurisdiction under these Acts is
confined to find out that finding of facts
recorded by the court/authority below is
according to law and does not suffer from
any error of law. A finding of fact recorded
by court/authority below, if perverse or has
been arrived at without consideration of
the material evidence or such finding is
based on no evidence or misreading of the
evidence or is grossly erroneous that, if
allowed to stand, it would result in gross
miscarriage of justice, is open to correction
because it is not treated as a finding
according to law. In that event, the High
Court
in
exercise
of
its
revisional
jurisdiction under the above Rent Control
Acts shall be entitled to set aside the
impugned order as being not legal or
proper. The High Court is entitled to satisfy
itself as to the correctness or legality or
propriety
of
any decision
or order
impugned before it as indicated above.
However, to satisfy itself to the regularity,
7 All. Mohammad Aamir Vs. Dist. Judge Lucknow & Ors.
117
correctness, legality or propriety of the
impugned decision or the order, the High
Court shall not exercise its power as an
appellate power to reappreciate or reassess
the evidence for coming to a different
finding on facts. Revisional power is not
and cannot be equated with the power of
reconsideration of all questions of fact as a
court of first appeal. Where the High Court
is required to be satisfied that the decision
is according to law, it may examine
whether the order impugned before it
suffers from procedural illegality or
irregularity.(emphasis supplied)"

24. This Court does not find any
factual
legal
infirmity
in
the
order
impugned.The writ petition is dismissed.
Petitioners are directed to pay all the
arrears of rent since 01.07.2013 alongwith
house tax and water tax at the rate of 10%
to the respondent no.2 within two months
from today and simple interest at the rate of
9% per annum thereon, and to give vacant
peaceful possession of the shop in question
to the landlord/ respondent no.2 within the
same period.
----------
(2021)07ILR A117
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Rent Control No. 12338 of 2019

Mohammad Aamir ...Petitioner
Versus
Dist. Judge Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner:
Khaleeq
Ahmad
Khan,
Mohammad
Akram, Mohd. Mubali Gussalam

Counsel for the Respondents:
Mohammad
Ehtesham
Khan,
Neeraj
Chaurasiya

Even if the issue of jurisdiction not raised-and
no
objection
was
taken
before
him
to
considered the question-always court's duty to
decide question of jurisdiction and limitation suo
moto-impugned orders set aside.

W.P. partly allowed.(E-7)

List of Cases cited:

1. Harshad Chiman Lal Modi Vs DLF Universal
Ltd. & anr. (2005) 7 SCC 791

2.Bahrein Petroleum Co. Ltd. Vs P.J. Pappu, AIR
1966 SC 634

3. Kiran Singh Vs Chaman Paswan , AIR 1954
SC 340

4. United Bank of India Vs Achintyakumar Lihiri,
2007(25) LCD 176

5. Manoj Kumar Gupta Vs Sunil Kumar Gupta,
2019 (1) JCLR 832(All)

6. M/s Bharat Petroleum Corporation Limited &
anr. Vs Rent Control and Eviction Officer/ City
Magistrate, Allahabad & ors., 2015 (110) ALR
177

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Mohd. Mubalig-UsSalam, learned counsel for the petitioner
and Sri Mohammad Ehtesham Khan,
learned
counsel
appearing
for
respondent/landlord.

2. It is the case of the petitioner as
argued by his Counsel that Sri Riyaz