# Vishwa Gaurav Pandey Revisionist v. Dr. Smt. Sangeeta Agarwal & Anr

- **Citation:** (2021) 6 ILRA 521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-03
- **Case number:** S.C.C. Revision No. 29 of 2020
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwa-gaurav-pandey-revisionist-v-dr-smt-sangeeta-agarwal-anr-47123
- **Pages:** 11

## Headnote

Prashant Singh Gaur

Suit decreed in landlord's favour-original
tennant shifted and inducted her relatives
- without informing plaintiff landlordtenant disputed the amount of rent and
extent of accomodation-but failed to lead
any evidence-impugned order does not
suffers from any error.

Held, The power under Section 25 of the
Provincial Small Cause Court Act empowers the
Court to examine whether in the impugned
judgment there has been any violation of any
statutory provision or the judgment suffers from
misreading of any evidence or omission to
consider any relevant and clinching evidence or
where the inference drawn from the facts
proved is such that no reasonable person can
arrive at such findings. (para 26)

Revision dismissed.(E-8)

List of Cases cited:

## Text

6 All. Vishwa Gaurav Pandey Vs. Dr. Smt. Sangeeta Agarwal & Anr.
521
obligation in deciding the representation
expeditiously and moreover the Central
Government
has
not
decided
the
representation dated 21.07.2020 till date
which is fatal and vitiates the detention
order.

28. In view of the aforesaid facts and
the law noticed above, the writ petition
succeeds and the detention order is
quashed. The petitioner shall be released
forthwith by the respondents unless he is
required in any other case.

29. In the facts and circumstances,
there shall be no order as to costs.

30. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self-attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

31.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)06ILR A521
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.06.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

S.C.C. Revision No. 29 of 2020

Vishwa Gaurav Pandey ...Revisionist
Versus
Dr. Smt. Sangeeta Agarwal & Anr.
 ...Opp. Parties

Counsel for the Revisionist:
Apoorva Tewari, Akash Singh

Counsel for the Opp. Parties:
Prashant Singh Gaur

Suit decreed in landlord's favour-original
tennant shifted and inducted her relatives
- without informing plaintiff landlordtenant disputed the amount of rent and
extent of accomodation-but failed to lead
any evidence-impugned order does not
suffers from any error.

Held, The power under Section 25 of the
Provincial Small Cause Court Act empowers the
Court to examine whether in the impugned
judgment there has been any violation of any
statutory provision or the judgment suffers from
misreading of any evidence or omission to
consider any relevant and clinching evidence or
where the inference drawn from the facts
proved is such that no reasonable person can
arrive at such findings. (para 26)

Revision dismissed.(E-8)

List of Cases cited:

1. M/s Technician Studio Pvt. Ltd. Vs Smt. Lila
Ghosh & anr., 1978 Allahabad Rent Cases, 220

2. Sanvarmal Kejriwal Vs Vishwa Cooperative
Housing Society Ltd. & ors. reported in 1990 (2)
SCC 288

3. Mani Nariman Daruwala @ Bharucha Vs
Phiroj N. Bhatena & ors. reported in 1991 (3)
SCC 141

4.Harshwardhan Chokkani Vs Bhupendra N.
Patel & ors. reported in 2002 (3) SCC 626

5. Park Street Properties Private Ltd. Vs Deepak
Kumar Singh & anr. reported in 2016 (9) SCC 268

6. Jhabbu Lal Vs District Judge, Dehradun & ors.
reported in 1998 (2) ARC 558
522 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Raghu Nath Goyal Vs Yogendra Singh Nehru
reported in 2015 (4) ADJ 168

8. Anthony Vs K.C. Itoop & Sons & ors. reported
in 2000 (6) 394

9. Trilok Singh Chauhan Vs Ram Lal & ors.
reported in 2018 (2) SCC 566

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant revision has been
preferred
under
Section
25
of
the
Provincial Small Cause Court Act, 1887
against the judgment and decree dated
11.11.2019 passed in SCC Suit No. 213 of
2014 (Dr. Smt. Sangeeta Agarwal and
Another Vs. Vishva Gaurav Pandey) by
means of which the suit of the plaintiffsrespondents has been decreed granting the
relief of arrears of rent and ejectment by
the Court of Special Judge, P.C. Act, Court
No. 5, Lucknow acting as Judge Small
Cause Court.

2. Briefly, the facts giving rise to the
instant revision are as under:-

3. That the plainitiff-respondents
instituted SCC Suit No. 213 of 2014
against Sri Vishva Gaurav Pandey seeking
a decree of arrears of rent and ejectment as
well as damages for wrongful use and
occupation.

4. It was pleaded that the ground floor
portion comprising of 3 living rooms, hall,
lobby, porch and front open space in House
No. 75, Ravindra Palli, Faizabad Road,
Lucknow was initially let out to Smt.
Garima Pandey, the sister of the defendant.
The premises was let out on a monthly rent
of Rs. 6,500/- excluding electricity, water
tax and other charges. It was also pleaded
that with mutual consent the monthly rent
was enhanced to Rs. 9,000/- per month.

5. In paragraph 3 and 4 of the plaint,
it has been stated that the defendnat
(Vishva Gaurav Pandey) started tendering
the cheques in his own name since January,
2013. It was later discovered that Smt.
Garima Pandey after marriage had shifted
elsewhere without informing the plaintiffs
and during her stay she inducted her
relatives including the defendant in an
unauthorized manner. It was also stated that
only when the cheque for the rent relating
to the month of March, 2014 was
dishonoured and the plaintiffs went to the
premises that they realised that they had
been accepting the rent from the defendant.

6. It was also pleaded that the
defendant (Vishva Gaurav Pandey) had
instituted a suit for injunction in the Court
of Civil Judge, Junior Division, Hawali,
Lucknow on 22.04.2014 on false pretext.
The plaintiff's since were receiving the rent
from the defendant, therefore, treating the
defendant as the tenant and the fact that the
rent was in excess of Rs. 2,000/-,hence, by
means
of
notice
dated
19.08.2014
terminated the tenancy and thereafter
instituted the suit against the defendant.

7. The said suit was contested by the
defendant by filing his written statement
wherein he took the defence that he was
only the tenant of one room situate on the
ground floor whereas the wash room, lobby
and the Angan was in common use of the
defendant
with
other
tenants.
The
defendant pleaded that he was a tenant of
Rs. 1,600/- per month along with Rs. 100/-
towards water charges, thus, a total sum of
Rs. 1,700/- was paid as rent by the
defendant to Dr. Sangeeta Agarwal, the
plaintiff no. 1.

8. He also pleaded that the defendant
was only the tenant of Dr. Sangeeta
6 All. Vishwa Gaurav Pandey Vs. Dr. Smt. Sangeeta Agarwal & Anr.
523
Agrawal and Dr. Atul Agarwal, the
plaintiff no. 2 has been wrongly impleaded
in the above suit. It was further pleaded that
since the rate of rent was only Rs. 1700/-
per month and the building was old, hence,
it was covered by the provisions of Uttar
Pradesh Regulation of Letting of Rent and
Eviction Act, 1972 (hereinafter referred to
as the Act No. 13 of 1972). The defendant
also submitted that he had deposited the
arrears in terms of Section 20 (4) of the
U.P. Act No. 13 of 1972 and as such was
entitled to the benefit of the aforesaid
provision, relieving him from the decree of
ejectment.

9. Insofar as the service of composite
notice of demand and ejectment dated
19.08.2014 is concerned, the same was
served on the defendant, however, it was
assailed on the ground that it did not relate
to the portion of which the defendant was a
tenant rather it related to a much larger
area, hence, the notice was bad.

10. Before the Trial Court, it is only
the plaintiff no. 2 Dr. Atul Agarwal who
appeared as a witness whereas none
appeared on behalf of the defendant nor the
defendant examined himself before the
Court. The Trial Court by means of
judgment dated 11.11.2019 considering the
respective contention of the parties decreed
the suit for the relief of arrears of rent,
ejectment as well as damages for wrongful
use and occupation.

11. The defendant being aggrieved
against the aforesaid judgment has knocked
the doors of this Court.

12. Sri Apoorva Tiwari, learned
counsel for the revisionist has assailed the
impugned judgment on primarily three
grounds;

(i) It has been urged that the
jurisdiction of the Court is determined on
the basis of the allegations made in the
plaint. Since in paragraphs 3 to 5 of the
plaint, it was alleged by the plaintiffs that
the property in question was initially leased
out to Smt. Garima Pandey and that Smt.
Garima Pandey had left the premises
without informing the plaintiffs and during
her stay, she unauthorisedly inducted the
defendants and her near relatives.Thus, as
per the allegations in the plaint, the status
of
the
defendant
was
that
of
an
unauthorized occupant and such a suit by
the owner against an unauthorized occupant
was not maintainable before the Judge,
Small Cause rather the plaintiffs ought to
have instituted the suit before the Civil
Court on the regular side. Thus the decree
suffered from the vice of jurisdictional
error hence a nullity.

(ii) It is also urged that from the plaint
averment, no relationship of landlord and
tenant was made out since it was pleaded
by the plaintiffs that they had been
accepting the rent under the impression that
the amount was being tendered to them by
Smt. Garima Pandey. Thus, for the said
reason, when there was no relationship of
landlord and tenant between the plaintiff
and defendant thus for the said reason also
the suit was apparently not between the
lessor and lessee, consequently, the suit
was not maintainable and was hit by the
provisions of Section 15 of the Provincial
Small Cause Court Act.

(iii) It is also been feebly argued that
the revisionist-defendant was not granted
adequate opportunity to contest the case
and that certain documents were filed by
the plaintiffs which though were taken on
record but opportunity was not granted to
the revisionist to rebutt the same or to lead
oral evidence in respet thereto. Thus, for all
the reasons as mentioned above, it was
524 INDIAN LAW REPORTS ALLAHABAD SERIES
urged that the judgment and decree passed
by the SCC Court dated 11.11.2019 was
bad in the eyes of law and was liable to be
set aside.

13. Sri Tiwari in support of his
submissions has relied upon the following
decisions:

(i) M/s Technician Studio Pvt. Ltd.
Vs. Smt. Lila Ghosh and Another, 1978
Allahabad Rent Cases, 220 (ii) Sanvarmal
Kejriwal Vs. Vishwa Cooperative Housing
Society Ltd. and Others reported in 1990
(2)
SCC
288
(iii)
Mani
Nariman
Daruwala Alias Bharucha Vs. Phiroj N.
Bhatena and Others reported in 1991 (3)
SCC 141 (iv) Harshwardhan Chokkani
Vs. Bhupendra N. Patel and Others
reported in 2002 (3) SCC 626.

14. At this stage, it will be relevant to
notice that the decisions of the Apex Court
in the case of Sanvarmal Kejriwal (supra)
and Mani Nariman Daruwala (supra) both
are on the proposition that the jurisdiction
of the Court in which the action was
originated must be determined on the basis
of the averments in the plaint whereas the
other two decisions in the Case of M/s
Technicians
Studio
Pvt.
Ltd
and
Harshwardhan Chokkani (supra) both are
on the proposition that mere payment of
rent in itself does not create a tenancy.

15. Per contra, Sri Prashant Singh Gaur,
learned counsel appearing for the plaintiffsrespondents while refuting the submissions of
the learned counsel for the revisionist submits
that the averments of the plaint must be read
as a whole. It is not permissible to cull out
sentences or read certain paragraphs in
isolation. It is further urged that from a
complete and meaningful reading of the
plaint, it would indicate that the plaintiffsrespondents had pleaded with sufficient
particularity that initially the premises in
question which was described in the plaint
was let out to Smt. Garima Pandey who is
none other than the sister of the defendant.
She was initially paying the rent of Rs.
6,500/- which later with passage of time was
enhanced to Rs. 9,000/- per month. The
plaintiffs had also accepted the rent by way of
cheque which was issued by the defendant,
however, the plaintiffs were under the
impression that it was on behalf of Smt.
Garima Pandey. On one occasion when the
cheque for the rent of the month of March,
2014 was dishonoured that the plaintiffsrespondents realised that Smt. Garima
Pandey was married and had left the premises
while it was in occupation of the defendant
who had been paying the rent.

16. It has further pleaded that the
defendant accepted the defendant as his
tenant
moreover
the
defendant
also
instituted a suit for injunction before the
Civil Court on incorrect facts but he pleaed
himself to be a tenant but of a lesser portion
and at a much lower rate of rent. In the
aforesaid backdrop, the plaintiff-respondents
after serving a composite notice of demand
and ejectment terminated the tenancy and
instituted the suit for arrears of rent,
ejectment and damages for wrongful use and
occupation.

17. Such a suit being between the
lessor and the lessee was cognizable by the
Judge, Small Causes and thus the question
of
jurisdiction
being
raised
by
the
defendant-revisionist is misconceived as
the
plaint
clearly
demonstrates
the
defendant being the tenant who had paid
rent to the plaintiffs, hence, this apart from
being an admission now the defendant
cannot resile and assail the jurisdiction by
raising a frivilous plea.
6 All. Vishwa Gaurav Pandey Vs. Dr. Smt. Sangeeta Agarwal & Anr.
525

18. It is further urged by Sri Gaur that
the defendant himself admitted in the
written statement that he was a tenant and
paying the rent to the plaintiff Dr. Sangeeta
Agarwal. Once the relationship of landlord
and tenant is admitted in the pleadings and
such an admission is neither retracted or
explained to mean otherwise, hence, at this
stage, it is not open for the revisionist to
urge that there is no relationship of landlord
and tenant and the SCC Court did not have
the jurisdiction.

19. It is also urged that ample
opportunity was granted to the defendant to
contest the case apart from filing the
written statement. The defendant did not
make any endevour to examine himself or
any witness on his behalf. The assertion
that certain documents were filed which
were taken on record and opportunity was
not granted to the defendant is also
incorrect, inasmuch as, none of those
alleged documents find place in the reasons
recorded by the trial Court in its judgement,
hence, no prejudice has been caused to the
defendant.

20. Apart from the fact that from the
perusal of the record of the order sheets of
the Trial Court would reveal that the
defendants made several applications one
after the other which all came to be
dismissed with the sole intention of
delaying the proceedings and the same was
also noticed by the Trial Court. At one
point of time, the proceedings were also
transferred from one Court to the other and
even when the judgment was reserved by
the Trial Court, the defendant left no stone
unturned to further delay and made an
application which was decided by the Trial
Court and the reference of which is
contained in the judgment itself. For the
aforesaid reasons, the decision of the Trial
Court
does
not
suffer
from
any
jurisdictional error nor the same requires
any interference from this Court in exercise
of powers conferred under section 25 of the
Provincial Small Causes Court.

21. The learned Counsel for the
respondents has relied upon the following
decisions:-

(i) Park Street Properties Private Ltd.
Vs. Deepak Kumar Singh and Another
reported in 2016 (9) SCC 268, (ii) Jhabbu
Lal Vs. District Judge, Dehradun and
Others reported in 1998 (2) ARC 558 (iii)
Raghu Nath Goyal Vs. Yogendra Singh
Nehru reported in 2015 (4) ADJ 168 (iv)
Anthony Vs. K.C. Itoop & Sons and Others
reported in 2000 (6) 394.

22. Sri Gaur has relied upon the
decisions of Park Street Properties Pvt.
Ltd. (supra) and Anthony (supra) to
buttress his submissions that where a lease
is in respect of a property, the same can be
made expressly or by implication. Also
that
in
absence
of
any
registered
instrument, the Courts have ample power
to determine the factum of tenancy from
other evidence as well as conduct of the
parties.

23. As far as the decisions of Jhabbu
Lal (supra) is concerned, it has been cited
to urge that the tenancy can be created by
implied consent and that there may be a
case where they may not be an express
agreement between the parties yet if the
occupant by his own conduct treats
himself to be the tenant and the rent is
accepted
by
the
landlord
in
such
circumstances, the tenancy would be
created by the parties. So also the decision
of the Raghhunath Goyal (Supra) has been
cited for the aforesaid proposition.
526 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The Court has considered the rival
submissions and also perused the material
available on record.

25. At the very outset, it may be
noticed that this Court is exercising
jurisdiction under Section 25 of the
Provincial Small Cause Court Act and it
will be necessary to notice the scope and
width of the aforesaid jurisdiction.

26. The power under Section 25 of the
Provincial
Small
Cause
Court
Act
empowers the Court to examine whether in
the impugned judgment there has been any
violation of any statutory provision or the
judgment suffers from misreading of any
evidence or omission to consider any
relevant and clinching evidence or where
the inference drawn from the facts proved
is such that no reasonable person can arrive
at such findings.

27. The power under Section 25 of the
Provincial Small Cause Court Act though is
wider than Section 115 C.P.C. but the very
nature of the revisional power is that it is
truncated. The Apex Court in the case of
Trilok Singh Chauhan Vs. Ram Lal and
Others reported in 2018 (2) SCC 566 had
the occasion to consider the scope of the
revisional powers under Section 25 of the
Provincial Small Cause Court Act and by
relying upon an earlier decision of the
Apex Court in the case of Hari Shanker Vs.
Rao Girdhari Lal Chaudhary reported in
AIR 1963 SC 698 and a subsequent
decision of Mundrilal Vs. Sushila Rani
reported in 2007 (8) SCC 609, in
paragraphs 15 and 16 has held as under:-

15. The scope of Section 25 of the
1887 Act, came for consideration before
this Court on several occasions. In Hari
Shankar v. Rao Girdhari Lal Chowdhury
[Hari Shankar v. Rao Girdhari Lal
Chowdhury, AIR 1963 SC 698] , in paras 9
and 10, this Court laid down the following:
(AIR p. 701)

"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 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 [Bell & Co. Ltd.
v. Waman Hemraj, 1937 SCC OnLine Bom
99 : (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: (SCC OnLine Bom paras 3-4)

''3. ... 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.

4. 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
6 All. Vishwa Gaurav Pandey Vs. Dr. Smt. Sangeeta Agarwal & Anr.
527
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 can
interfere. But, in my 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 plain finding
of fact and more so, because he himself
proceeded on a wrong assumption."

16. Another judgment which needs to be
noted is judgment of this Court in Mundri Lal
v. Sushila Rani [Mundri Lal v. Sushila Rani,
(2007) 8 SCC 609] . This Court held that
jurisdiction under Section 25 of the 1887 Act,
is wider than the revisional jurisdiction under
Section 115 CPC. But pure finding of fact
based on appreciation of evidence may not be
interfered with, in exercise of jurisdiction
under Section 25 of the 1887 Act. 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
inadmissible evidence or (iv) findings have
been arrived at without consideration of
relevant evidence.

28. Thus, from the above, it would be
clear that there are limited grounds upon
which the Court in exercise of powers
under Section 25 of the Provincial Small
Cause Court Act can interfere. In light of
the powers conferred and its scope as
noticed above, this Court embarks upon the
exercise to test the veracity of the
submissions of the learned counsel for the
parties.

29. The learned counsel for the
revisionist has primarily urged that the
SCC Court did not possess jurisdiction to
entertain the suit as from the averments
made in the plaint, the plaintiffs had
described the defendant-revisionist as an
un-authorized occupant and thus the suit
was not maintainable before a Small
Cause Court Act. The other limb of
submission relating to jurisdiction is that
since no relationship of landlord and
tenant was made out and even from the
averments in the plaint, it indicated that
the rent which was paid by the defendantrevisionist was accepted by the plaintiffsrespondents to be rent on behalf of Smt.
Garima Pandey, thus, there was no
relationship
of
landlord
and
tenant
between the plaintiff and the defendant
and even otherwise merely by the
plaintiffs stating that they had accepted
the defendant as a tenant neither it would
give rise to the creation of a tenancy nor
mere acceptance of rent would create the
relationship of landlord and tenant and
that being so the Court did not possess
the jurisdiction, hence, the judgment of
the Trial Court cannot be sustained.

30. The aforesaid submission may
sound attractive but upon considertion of
the material available on record as well as
the pleadings, the same does not impress
this Court.
528 INDIAN LAW REPORTS ALLAHABAD SERIES

31. It is no doubt true that the
jurisdiction of the Court is ascertained by
the allegations and averments made in the
plaint alone and it is not the defence which
is to be looked into for the aforesaid
purpose.The decision relied upon by the
learned counsel for the revisionist in the
cases Sanvarmal Kejriwal (supra) and Mani
Nariman Daruwala (Supra) clearly upholds
the aforesaid proposition and there is no
doubt or quarell to the said proposition.
However,
in
the
present
facts
and
circumstances, it is equally true that the
plaint has to be considered as a whole and
not
in
piecemeal.
The
plaintiffs
in
paragraph 6 while narrating the facts has
clearly indicated that though the defendant
had filed a frivilous suit but as there was no
express or written contract pertaining to the
creation of relationship of landlord and
tenant and also for the reason that the
defendant had issued cheques towards
payment of rent which was encashed by the
plaintiffs, hence, to remove any doubt, the
plaintiffs admit the defendant as their
tenant.

32. The plaintiffs had also issued a
notice terminating the tenancy to the
defendant dated 19.08.2014 wherein the
similar averments have been made. The
aforesaid notice also indicated that the
premises was not governed by the U.P. Act
No. 13 of 1972. Thus, it cannot be said that
the plaint as a whole does not contain
averments
regarding
the
tenancy
in
question.

33. Apparently, in light of the
pleadings delivered by the plaintiffsrespondents, it appears that the plaintiffsrespondents have clearly indicated that
the defendant is the tenant who had been
paying rent to the plaintiffs which has
been accepted by the plaintiff. A notice
terminating the tenancy of the defendant
was issued and received by him and
thereafter the suit was instituted before
the Judge, Small Causes. At this juncture,
it will be equally important to notice that
the averments made in the plaint have to
be taken as the way they are. The truth or
falsity of its content is to be determined
at trial. Thus, in so far as the jurisdiction
is concerned, it cannot be said that the
suit was incorrectly instituted before the
Judge, Small Causes.

34. Coming to the submission that
the plaintiffs at some place in the plaint
had mentioned that the tenancy was
initially in favour of Garima Pandey who
had
inducted
the
defendant
in
an
unauthorized
fashion
and
thus
the
defendant
being
an
un-authorized
occupant, the suit would not lie or that
there was no relationship of landlord and
tenant and even though mere rent was
accepted will not create the tenancy. The
record indicates that it was the defendantrevisionist who had first instituted a suit
for permanent injunction before the Court
of Civil Jude, Junior Division, Hawali,
Lucknow bearing R.S. No. 177 of 2013
against the present plaintiffs-respondents.
A copy of the said plaint has been
brought on record and in the said suit it
has been averred by the revisionist
himself that he is the tenant of Dr.
Sangeeta Agarwal on a monthly rent of
Rs. 1,600/- + Rs. 100/- towards water
charges of one room situate on the
ground floor. It is further alleged by the
revisionist in the regular suit that his
brother and father are also separate
tenants of some other portion in the same
house. Since they were not paying the
rent in time to the landlord which had
created difficulty, hence, the present
revisionist paid the rent not only on his
6 All. Vishwa Gaurav Pandey Vs. Dr. Smt. Sangeeta Agarwal & Anr.
529
behalf but also on behalf of his brother
and father.

35. Be that as it may, this aspect has
been considered by the Trial Court in detail
and while noticing so it has taken note of
the respective pleadings and also noticed
the fact that the plaintiffs-respondents had
appeared in the witness box and duly
proved the averments of the plaint. The
Trial Court also noticed that the defendant
had
admitted
the
tenancy,
however,
disputed that the rate of rent as well as the
extent of the accodomodation under his
tenancy, however, he did not appear in the
witness box nor examined any witness to
prove his defence. In absence of the
aforesaid at best, the averments in the
written statement remained a plea which
could not be substantiated. Hence, treating
the admission in so far as the relationship is
concerned as well as the absence of the
material to the contrary, the trial court
recorded a finding that the relationship of
landlord and tenant existed between the
parties.

36. Thus, once a finding of fact has
been recorded by the Trial Court based on
the material available on record, this Court
is not inclined to distrurb such a finding of
fact especially in absence of any cogent
material, contrary to the aforesaid, on
record.

37. The submission of the learned
counsel for the revisionist is an attempt to
dig and corrode the pleadings of the
plaintiffs to make out a case whereas it
failed to lead any evidence nor could give
any explanation as to the fact that once the
defendant had admitted the tenancy and
also admitted that he was paying rent to the
landlord in the written statement of the
regular suit but had disputed the amount of
rent and the extent of accommodation only
but failed to lead any evidence to
substantiate the same, hence, in view of the
aforesaid discussion the first limb of the
argument of the revisionist fails.

38. In so far as the submission that
mere payment of rent would not create a
tenancy and the reliance placed onthe
case of M/s Technician Studio Pvt. Ltd.
(supra) is concerned, it would indicate
that the facts of the aforesaid case were
quite different. In the case of M/s
Technician Studio Pvt. Ltd. (supra) the
payment was made in part performance of
the contract of lease contained in a
compromise petition. The Apex Court
held that payment of rent did not create
any tenancy was in the backdrop of the
terms and conditions of a contract of
lease contained in a compromise petition.
Since there was a specific contract in
terms whereof the amount was paid in
part performance the observations were
made by the Apex Court. In the aforesaid
judgment, it has further been noticed that
whether the relationship of landlord and
tenant exists between the parties depends
on whether the parties intented to create a
tenancy and the intention has to be
gathered from the facts and circumstances
of the case.

39.

Applying
the
aforesaid
proposition, it would indicate that in the
present case, the revisionist had instituted
the suit first in point of time and admitted
himself to be a tenant. The plaintiffsrespondents while filing the SCC Suit
referred to the background of facts and
specifically stated that they admit the
defendant to be the tenant and also that
they had accepted the rent from him,
accordingly, the intention as well as
admission as contained in the pleadings
530 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly indicates the creation of relationship
of landlord and tenant and that the amount
paid by the revisionist would be the rent in
respect of the premises in question.

40. In the case of Harshwardhan
Chaukani (supra) the Apex Court has
noticed the aforesaid and has held that
merely by paying the rent a person does
not become a tenant but what it further
holds is, that it is not the only
determinative factor, other circumstances
also can be taken into consideration.

41. Taking the overall facts as
noticed above, the evidence led by the
plaintiffs and no evidence led by the
defendant to prove his defence does not
persuade this Court to take a different
view than the one taken by Trial Court.

42. For the aforesaid reasons, the
decisions cited by the learned counsel for
the revisionist does not come to his
rescue. What this Court finds that since
there is no document to establish the
lease, however, the conduct of the parties
and the evidence on record clearly
suggest the relationship of landlord and
tenant between the parties and this
finding has been recorded by the Trial
Court does not suffer from any error.
Thus the second submission of the
revisionist also fails.

43. In so far as the submission
regarding non-grant of opportunity is
concerned, upon perusal of the record,
this Court finds that the aforesaid
submission
is
also
misconceived,
inasmuch as, the defendant was granted
ample opportunity but he chose not to
lead any evidence. The record also
reflects that the defendant has been trying
to procastanate the litigation by moving
multiple applications which all came to
be rejected for cogent and appropriate
reasons, though, that is not under
challenge
before
this
Court
but
nevertheless since the submission has
been raised by the learned counsel for the
revisionist,
accordingly,
it
is being
noticed by this Court.

44.

The
submission
of
the
revisionist is that certain document were
taken on record against which he was not
granted an opportunity to lead any oral
evidence also pales into insignificance,
inasmuch as, the findings of the Trial
Court
are
not based
on
the
said
documents. The same has not been
noticed nor the plaintiff led any evidence
on the same. In view of the aforesaid,
neither the said documents which were
not proved by the plaintiffs himself has
any relevance nor any prejudice has been
caused to the defendant nor the same has
been made the basis of the impugned
judgment,
consequently,
the
said
submission also fails.

45. In light of the aforesaid
discussion, this Court is of the firm
opinion that the judgment and decree
dated 11.11.2019 passed in SCC Suit No.
213 of 2014 by Special Judge, P.C. Act,
Court No. 5, Lucknow acting as Judge,
Small Causes does not suffer from any
error, accordingly, the same is affirmed.

46. The revision is devoid of merits
and is dismissed.

47. In the facts and circumstances,
there shall be no order as to costs. Office
is directed to remit the record of the Trial
Court to the court concerned within 10
days.
----------
6 All. Amir @ Bhola Vs. State of U.P.
531
(2021)06ILR A531
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.06.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Bail Application No. 16769 of 2021

Amir @ Bhola ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Manoj Kumar Srivastava, Sri Anwar Hussain,
Sri Rajesh Kumar

Counsel for the Opp. Party:
A.G.A.

(a) Bail - In view of the nature of evidence, the
period of detention already undergone, the
unlikelihood of early conclusion of trial and also
the absence of any convincing material to
indicate the possibility of tampering with the
evidence, the applicant may be enlarged on bail.
(Para 8)

Application Allowed. (E-8)

List of Cases cited:-

1. Dataram Singh Vs St. of U.P. & anr. (2018) 3
SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The Court has convened through
Video conferencing.

2. Heard learned counsel for the
applicant as well as learned A.G.A.
appearing for the State and perused the
record.

3. This application has been filed
seeking the release of the applicant on bail
in Case Crime No. 0047 of 2021, u/s 8/20
of N.D.P.S. Act, 1985 (State of U.P. Vs.
Amir @ Bhola), P.S.- Rasoolpur, District
Firozabad.

4. Submission of learned counsel for
the applicant is that the quantity of the
contraband shown to be recovered from the
possession of the applicant is 950 gram
Charas which is said to be below
commercial quantity. The contention is that
the police has deliberately shown the
amount exaggeratedly just in order to add
to the gravity of the offence. It has also
been pointed out that the applicant is jail
since
24.02.2021.
Other
submissions
assailing the the truthfulness of the
prosecution story with regard to the
recovery have also been made. Further
contention is that the statutory provisions
of the Narcotic Drugs and Psychotropic
Substances Act, 1985 have not been
complied with in true letter and spirit, and
therefore, the legal sanctity of the alleged
recovery stands vitiated. The counsel has
also tried to demonstrate the circumstances
indicating the false implication of the
applicant. Malice behind the prosecution
has also been pleaded during the course of
the arguments placed on behalf of the
accused.

5. Several other submissions in order
to demonstrate the falsity of the allegations
made against the applicant have also been
placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused have also been touched upon at
length. It has been assured on behalf of the
applicant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. It has also been pointed