# Rakesh Gupta Revisionist v. Smt. Shail Kumari Gupta

- **Citation:** (2024) 9 ILRA 1368
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-06
- **Case number:** S.C.C. Revision No. 12 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-gupta-revisionist-v-smt-shail-kumari-gupta-52557
- **Pages:** 7

## Headnote

A. Civil Law - Provincial Small Causes
Court Act, 1887-Section 25-Determination
of the rate of rent payable by the tenantlegality of eviction order against the
tenant-
the
opposite
party(landlady)
sought the revisionist's eviction and claimed
rent arrears of Rs. 6600 per month-the trial
court decreeing eviction and setting the rent
at Rs. 6600 per month-The revisionist
claimed rent was Rs. 500 per month based
on agreement-the trial court relied on
evidence including an unpressed agreement
and previous proceedings, to fix the rent at
Rs.
6600
per
month-the
revisionist
agreement was admitted even though not
properly stamped, as the revisionist himself
avoided paying the duty-Held a trial court
erred in determining the rent Rs 6600 per
month
based
on
an
unpressed
rent
agreement and unsubstantiated findings by
the prescribed authority-the rent was fixed at
Rs.500 per month as per agreement filed by
the tenant-The eviction of the tenant was
upheld as the tenancy had expired-The
revision was partly allowed, setting aside the
trial court's finding on the rent amount.(Para
1 to 33)

The revision is allowed. (E-6)

## Text

1368 INDIAN LAW REPORTS ALLAHABAD SERIES
sale-deed, she had locus standi to claim that
she had the right to resist her ejectment
through execution proceedings instituted
for execution of a decree which was passed
in a suit in which she was not a party.
Executing Court has rightly gone into the
question
in
exercise
of
jurisdiction
conferred by Order XXI Rule 97 C.P.C.
The order passed by the executing Court
cannot be said to be without jurisdiction.

21. The learned counsel for the
petitioner has lastly submitted that the trial
court has decided the intricate question of title
merely after looking into the documentary
evidence and without giving any opportunity
to the parties to adduce any oral evidence to
prove their case whereas there was nothing on
record to prove the title of Shyam Lal from
whom the opposite party no. 1 claims to
derived title in respect of the property in
question and, therefore, the title of the opposite
party no. 1 was not established.

22. In Nirmal Jeet Singh Hoon v.
Irtiza Hussain, (2010) 14 SCC 564, the
Hon'ble Supreme Court explained the scope
and effect of Section 23 of the Act of 1887 by
relying upon the precedent in the case of
Budhu Mal (Supra) and reiterated that "the
finding on the issue of title recorded by the
Small Cause Court does not operate as res
judicata and ultimately the issue of title has
to be adjudicated upon by the competent civil
court."

23. When we reconcile the ratio of
law laid down in Noorduddin and Nirmal
Jeet Singh Hoon (Supra), the correct position
of law which emerges is that the Small Cause
Courts has limited jurisdiction to go into the
question of title incidentally for deciding the
claim of the landlord for a decree of ejectment
and execution thereof. However, the Small
Cause Courts decide the cases in a summary
manner and the finding returned by a Small
Cause Court regarding title of the rival parties
will not operate as res judicata in a subsequent
suit filed by the landlord in regular Civil Court
claiming a decree on the basis of his title.

24. Therefore, the finding returned by
the executing Court in proceedings for
execution of a decree of a Small Cause Court
will not affect the revision-petitioner's right to
file a suit for recovery of possession of the
property after establishing his right thereto on
the basis of his claim to title of the property,
which claim shall be decided by the Civil
Court after adjudicating the rival claims to
title of the property and the findings returned
by the Small Cause Court in the impugned
order will not operate as res judicata in that
suit.

25. In view of the foregoing
discussion, this Court is of the considered view
that there is no illegality in the judgment and
an order dated 21.05.2022 passed by the
learned Additional District Judge/Special
Judge, P.C. Act, Court no. 3, Lucknow in
Miscellaneous Case No. 39-C of 2013
warranting any interference by this Court in
exercise of its revisional jurisdiction conferred
by Section 25 of the Act of 1887. The revision
lacks merits and it is dismissed, subject to the
observations made in this judgment.
----------
(2024) 9 ILRA 1368
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

S.C.C. Revision No. 12 of 2024

Rakesh Gupta ...Revisionist
Versus
Smt. Shail Kumari Gupta ...Respondent
9 All. Rakesh Gupta Vs. Smt. Shail Kumari Gupta
1369
Counsel for the Revisionist:
Pritish Kumar, Amal Rastogi

Counsel for the Respondent:
Abhay Kumar Srivastava

A. Civil Law - Provincial Small Causes
Court Act, 1887-Section 25-Determination
of the rate of rent payable by the tenantlegality of eviction order against the
tenant-
the
opposite
party(landlady)
sought the revisionist's eviction and claimed
rent arrears of Rs. 6600 per month-the trial
court decreeing eviction and setting the rent
at Rs. 6600 per month-The revisionist
claimed rent was Rs. 500 per month based
on agreement-the trial court relied on
evidence including an unpressed agreement
and previous proceedings, to fix the rent at
Rs.
6600
per
month-the
revisionist
agreement was admitted even though not
properly stamped, as the revisionist himself
avoided paying the duty-Held a trial court
erred in determining the rent Rs 6600 per
month
based
on
an
unpressed
rent
agreement and unsubstantiated findings by
the prescribed authority-the rent was fixed at
Rs.500 per month as per agreement filed by
the tenant-The eviction of the tenant was
upheld as the tenancy had expired-The
revision was partly allowed, setting aside the
trial court's finding on the rent amount.(Para
1 to 33)

The revision is allowed. (E-6)
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Pritish Kumar and Sri.
Amal Rastogi, the learned counsel for the
revisionist
and
Shri
Abhay
Kumar
Srivastava, the learned counsel for the sole
opposite party. With the consent of the
learned Counsel for the parties, the revision
is being decided finally at the admission
stage itself.
2. By means of the instant revision
filed under Section 25 of the Provincial
Small Causes Court Act, the revisionist has
challenged validity of a judgment and order
dated 29.05.2024 passed by the learned
Additional District and Sessions Judge,
Court No. 16, Lucknow in SCC Suit No. 14
of 2014, whereby the SCC Suit filed by the
opposite
party
for
the
revisionist's
ejectment from a shop in his tenancy and
for recovery of rent at the rate of Rs.6,600/-
per month, has been decreed.

3. The aforesaid suit was filed by
the opposite party on 07.02.2014 inter alia
stating that she is the owner of building
No.133/211 situated in Mohalla Takiya
Ganeshganj, Aminabad Road, P.S. Naka,
District-
Lucknow.
The
defendantrevisionist is her tenant in respect of one of
the shops situated in the building which is
bounded as below: -

East- Aminabad Road,
West-
House
of
the
plaintiff,
North- shop being run
under the name and style of Gupta
Kirana Store,
South- Shop being run
under the name and style of Shivam
Medical Store.

4. It was pleaded in the plaint that
initially the revisionist's father Mangal
Prasad was a tenant of the shop in question,
who died on 30.07.2011. Thereafter, the
revisionist
entered
into
a
tenancy
agreement with the opposite party for a
period of 11 months, at a monthly rent of
Rs.6,600/- for the same shop which was
previously in his father's tenancy. When the
revisionist did not vacate the shop in spite
of termination of his tenancy rights by
efflux of time, she sent a legal notice dated
01.01.2014 to the revisionist but he
declined to receive the same. The opposite
party further stated that the revisionist has
not paid rent since 01.09.2011.
1370 INDIAN LAW REPORTS ALLAHABAD SERIES
5. The opposite party had filed an
agreement
dated
20.09.2011
allegedly
executed between her and the revisionist.

6. The revisionist filed a written
statement of his defense denying the plaint
averments and he pleaded that he was a
lawful tenant in occupation of the shop in
question, at the monthly rent of Rs.500/-.
The revisionist denied that the rent of shop
in question is Rs.6,600/- per month and he
specifically stated that the rent at the
aforesaid rate has not been paid at any
point of time. The revisionist further stated
that when the opposite party did not receive
rent from him after the death of his father,
he had started depositing the rent in Misc.
Case No.75 of 2013 under Section 30 (1) of
the U.P. Act No.13 of 1972. The revisionist
denied having received any notice sent by the
opposite party or to have declined to receive the
same. In additional pleas, the revisionist
pleaded that the opposite party had filed an
application under Section 21 of the U. P. Act
No. 13 of 1972, wherein she had pleaded that
rent of the shop in question was Rs.6,600/- per
month . As the premises fell outside the
purview of U.P. Act No.13 of 1972 as per
pleadings made in the application under Section
21 of U.P. Act No.13 of 1972, the application
had been dismissed as not maintainable.

7. The revisionist filed a rent
agreement dated 21.09.2011 executed between
the parties wherein the agreed rent was said to
be Rs.500/- per month and the period of
tenancy was agreed to be 11 months with effect
from 31.07.2011. It was specifically stated in
this agreement that the period of tenancy will
expire on 31.05.2012 whereafter the tenancy
will stand terminated automatically.

8. The opposite party filed her
affidavit
as
her
examination-in-chief
wherein she reiterated the plaint averments.
She stated that a rent agreement had been
executed between the parties for giving the
shop in question on rent to the revisionist
for a period of 11 months at the agreed
monthly rate of Rs.6,600/- and that the
revisionist
had
not
paid
rent
since
01.09.2011 in spite of notice and he has not
vacated the shop.

9. In her cross-examination, the
opposite party stated that earlier the
revisionist's father was tenant of the shop.
No written agreement had been executed
between the opposite party and the
revisionist's father and she did not issue
any
receipt
for
the
rent
from
the
revisionist's
father.
After
death
of
revisionist's father, the opposite party had
asked the revisionist to vacate the shop but
thereafter a rent agreement for 11 months
was executed between the parties in the
year 2011 and the agreed rent was
Rs.6,600/- per month. The opposite party
denied that the agreed rent of the shop in
question was Rs.500/- per month.

10. PW-2 Rajesh Kumar Shukla
had also put his signatures on the
agreement and he gave his statement to
prove
the
tenancy
agreement
dated
20.09.2011.

11. The revisionist filed his
affidavit as his examination-in-chief in
support of his defense wherein he stated
that he is a statutory tenant of the shop in
question and the rent payable by him is
Rs.500/- per month. He denied that rent of
the premises is Rs.6,600/- per month. He
denied having received any notice sent by
the opposite party or to have declined to
receive the notice. He stated that earlier he
was depositing rent of the shop in
proceedings under Section 30 of U.P. Act
No.13 of 1972 and after filing of the suit
9 All. Rakesh Gupta Vs. Smt. Shail Kumari Gupta
1371
for ejectment, he was depositing the same
under Order XV Rule 5 C.P.C. The
revisionist denied having entered into any
written agreement of tenancy and he stated
that the alleged agreement is forged and
fictitious and the revisionist has never put
his signatures on any agreement. In his
cross-examination also, the revisionist
asserted that no written agreement was
executed between the parties and rent
payable by him is Rs.500/- per month only.

12. Initially, upon an application
filed by the landlady - opposite party, the
trial Court had passed an order dated
19.10.2016 for getting a hand writing
expert's report regarding the signatures
made on the agreement dated 20.09.2011
but subsequently, the opposite party filed
an application (C-57) stating that since the
expert's report was not received in spite of
expiry of a period of two years and the
opposite party wanted disposal of the suit
expeditiously, she had decided to not press
the written agreement. The Court accepted
the opposite party's aforesaid application
and passed an order dated 02.1.2020
holding that the rent agreement (Paper
No.C6/2 to C6/5) will not be treated as a
part of the plaintiff's evidence.

13. The trial Court formulated the
following points for determination: -

(1) Whether there is a
relationship of landlady and tenant
between the parties in respect of the
shop in question?
(2) Whether the defendant
has inherited the tenancy from his
father or a new tenancy has come
into existence?
(3) Whether rent of the
shop after death of the revisionist's
father is Rs.6,600/- per month or it
is Rs.500/- per month?
(4) Whether a notice under
Section 106 of the Transfer of
Property Act had been adequately
served on the defendant?
(5) Whether the plaintiff is
entitled to get possession of the
property in question and arrears of
rent
and
damages
from
the
defendant?

14. On the first point, the learned
trial Court held that the defendant himself
has pleaded in the written statement that he
is a tenant of the plaintiff in respect of the
shop in question. Therefore, the defendant
is a tenant of the plaintiff.

15. While deciding the second
point, the trial Court held that the plaintiff
has contended that after death of the
defendant's father, a rent agreement was
executed at the request of the defendant, for
giving the shop on rent for a period of 11
months at the monthly rent of Rs.6,600/-
per month. Although the plaintiff had not
pressed this agreement, PW-2 has stated in
his examination-in-chief that an agreement
had been executed between the parties on
20.09.2011 for giving the shop in question
on rent for a period of 11 month at the
monthly rent of Rs.6,600/-, in his presence
and he had also had put his signatures on
the agreement as a witness of its execution.
In his cross-examination, PW-2 stated that
when he had reached, the agreement had
already been prepared and he had signed
the same after reading it. Another witness
Satyam Pandey had also signed the
agreement in his presence after reading it.
The trial Court held that although the
plaintiff had not pressed the agreement
dated 20.09.2011 and accordingly it had
been ordered on 02.01.2020 that the
1372 INDIAN LAW REPORTS ALLAHABAD SERIES
agreement will not be treated as a part of
the plaintiff's evidence, the testimony of
PW-2, who is an independent witness,
proves that a rent agreement had been
executed
between
the
parties
on
20.09.2011. Therefore, the trial Court held
that a new relationship of tenant and
landlord came into being between the
parties and the tenant was not continuing
under the tenancy inherited from his father.

16. Regarding the rate of rent, the
trial Court held that the Prescribed
Authority had dismissed the application
filed under Section 21 of U. P. Act No. 13
of 1972 by an order dated 04.02.2016
holding that rent of the premises exceeded
Rs.2,000/- per month and it had no
jurisdiction to entertain the application.
This order has attained finality and is
binding on the parties. PW-1 and PW-2
both have stated the rate of rent to be
Rs.6,600/- and, therefore, the plaintiff has
proved the rate of rent to be Rs.6,600/-.

17. While deciding the forth point
which was framed regarding service of
notice, the trial Court held that plaintiff has
filed the notice, the postal receipt and the
unserved envelop which mentions the
correct address of the revisionist and which
contains an endorsement made by the
postman that the addressee had declined to
receive it. No question was put to the
plaintiff on this point during her crossexamination. Therefore, service of notice
by refusal by the revisionist was proved.

18. In view of the findings of the
trial Court on the aforesaid four points, the
suit
was
decreed
by
the
impugned
judgment dated 29.05.2024 holding the
revisionist liable to pay arrears of rent and
damages at the rate of Rs.6,600/- per
month.
19. While assailing validity of the
judgment and decree dated 29.05.2024, Sri.
Pritish Kumar, the learned counsel for the
petitioner has submitted that no oral
evidence is admissible to prove the
contents of the written agreement and when
the
plaintiff
herself
had
given
an
application (Paper no. A57) stating that she
did not want to press the tenancy agreement
as a part of her evidence, which application
had been allowed by an order dated
02.01.2020, the trial court could not have
relied upon any evidence to prove the terms
of the agreement which was not to be
treated as a part of the plaintiff's evidence.

20. The second submission of the
learned counsel for the petitioner is that in
P.A. Case No. 14 of 2014 filed by the
opposite party-landlady under Section
21(1) of the U.P. Act No. 13 of 1972, the
landlady had claimed that rent of the shop
in question was Rs.6,600/- per month. The
petitioner had disputed this fact and he had
contended that rent of the premises was
merely Rs.500/- per month. The Prescribed
Authority rejected the application as not
maintainable by holding that when the
landlady herself contends the rate of rent to
be Rs.6,600/-, the premises falls outside the
purview of Rent Control Act. Relying upon
this decision of the Prescribed Authority,
the trial court has taken the rate of rent to
be Rs.6,600/- whereas rate of rent of
Rs.6,600/- was recorded in the order passed
by the Prescribed Authority merely on the
basis of the contention of the landlady,
which was denied by the petitioner-tenant.
The Prescribed Authority has dismissed the
application has not maintainable and no
finding regarding rate of rent has been
recorded by the Prescribed Authority.

21. Opposing the revision, the
learned counsel for the opposite party has
9 All. Rakesh Gupta Vs. Smt. Shail Kumari Gupta
1373
submitted that the petitioner had not
pleaded in his written statement that he had
not executed the rent agreement dated
20.09.2011. He has submitted that since the
pleading in respect of execution of rent
agreement dated 20.09.2011 remain uncontroverted, there was no requirement to
prove the un-controverted pleading.

22. The learned counsel for the
opposite party next submitted that the
Prescribed Authority has recorded a finding
that it is undisputed that the rent of the shop
in question was Rs.6,600/-.

23.
I
have
considered
the
submissions of the learned counsel for the
parties.

24. What appears from the
material available on record is that the
opposite party claims to have entered into
an agreement dated 20.09.2011 under
which the revisionist had agreed to pay the
rent of the shop at the rate of Rs.6,600/- per
month and that the period of tenancy would
expire on 19.08.2012. The petitioner
disputed having agreed to pay rent at the
rate of Rs.6,600/-. There is force in the
submission of the learned Counsel for the
petitioner that after the order dated
02.01.2020 was passed allowing the
plaintiff's application C-57 and providing
that the rent agreement dated 20.09.2011
will not be treated as a part of the plaintiff's
evidence, the finding of the Trial Court
regarding that agreement is unsustainable
in law.

25. The learned trial Court has also
erred in relying upon the order passed by
the Prescribed Authority to fix the rate of
rent of the shop at Rs.6,600/-, when the
Prescribed Authority had not adjudicated
the matter on merits and it had not recorded
any finding of fact. The Prescribed
Authority
had
merely
dismissed
the
application under Section 21 of the U. P.
Act No. 13 of 1972 as not maintainable,
keeping in view the pleading of opposite
party- land lady that rent of the shop in
question was Rs.6,600/-, which plea had
been disputed by the revisionist-tenant,
who had contended that rent was Rs.500/-.

26. When the Prescribed Authority
had dismissed the application as not
maintainable,
without
recording
any
finding, the trial Court could not have
relied upon the order passed by the
Prescribed Authority to hold that rent of the
premises is Rs.6,600/- per month.

27. In para 9 of the revisionist's
affidavit filed before this Court, he has
stated on oath that "the revisionist also
specifically submitted that the rent of the
tenanted premises is Rs.500/- per month
and not Rs.6,600/- as alleged by the
Respondent. That in support of this
contention the Revisionist placed on record
rent receipts, and also an agreement, dated
21.09.2011 executed by Respondent in
favour of the Revisionist which stated the
rent to be Rs.500/- only. Copy of the
agreement, dated 21.09.2011 is being
annexed hereto as ANNEXURE NO. 4 to
this affidavit." A copy of the agreement
dated 21.09.2011 filed by the revisionist as
Annexure No. 4 to the affidavit states that
the parties had agreed that rent of the
premises will be Rs.500/- per month and
period of tenancy will be till 30.05.2011.
The
tenancy
will
stand
terminated
automatically on 31.05.2012.

28. Regarding this agreement,
learned counsel for the petitioner has
submitted that this is an agreement
executed on a stamp paper worth merely
1374 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.100/- and it has not been registered and,
therefore, it is not admissible in evidence.

29. It is true that this agreement is not
duly stamped but the liability to pay stamp duty
on this agreement was of the revisionist
himself. The revisionist himself has evaded
payment of proper stamp duty on this
agreement. It is a settled principle of law that no
person can be allowed to take advantage of his
own wrong. When the revisionist himself had
avoided payment of stamp duty on the
agreement dated 21.09.2011, he cannot take the
plea that the agreement dated 21.09.2011 not
being duly stamped, is not admissible in
evidence although it has been filed by the
revisionist himself. Therefore, this Court finds
no reason to disbelieve the agreement filed by
the revisionist-defendant alongwith his affidavit
filed before this Court.

30. The learned Counsel for the
petitioner next submitted that the opposite party
- plaintiff had not taken any plea based on the
agreement dated 21.09.2011 and, therefore, no
decision has been given by the trial Court on
this point. In these circumstances, it would be
proper to remand the matter to the trial Court
for being decided afresh.

31. In Jagdish Prasad v. Angoori
Devi: (1984) 2 SCC 590, the Hon'ble
Supreme Court had held that: -

"2. ...This was not an attempt
to reassess evidence but to take into
consideration the evidence which had
not been looked into by the trial court.
The
revisional
jurisdiction
under
Section 25 of the Provincial Small
Cause Court Act is not as wide as the
appellate jurisdiction under Section 96
of the Code of Civil Procedure; yet in a
case of this type we do not think fault
could be found with the revisional court
for pointing out the legal error
committed by the trial court in its
approach to this material aspect...."

32. In the present case also, the
revisionist - defendant had himself filed an
agreement dated 21.09.2011, as per which, his
tenancy stands expired with effect from
31.05.2012, but it was not taken into
consideration by the learned trial Court. This
Court is well within its jurisdiction to correct the
legal error committed by the trial Court by
ignoring this material evidence placed by the
revisionist.

33. In view of the foregoing discussion,
the revision is allowed in part. The judgment and
order dated 29.05.2024 passed by the learned
Additional District and Sessions Judge, Court
No. 16, Lucknow in SCC Suit No. 14 of 2014 is
set aside to the extent that it holds the rate of rent
of the shop in question to be Rs.6,600/- per
month and it is held that the rate of rent of the
shop in question was Rs.500/- only. The
remaining part of the judgment and decree so far
as it orders ejectment of the revisionistdefendant, does not suffer from any illegality
calling for interference in exercise of this Court's
revisional jurisdiction and the revision in respect
of this relief is dismissed. The parties will bear
their own costs of litigation.
----------
(2024) 9 ILRA 1374
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ -B No. 853 of 2024

Keshav Prasad & Ors. ...Petitioners
Versus
Consolidation Commissioner, Lko. & Ors.
 ...Respondents