Rameshkumar Chhotalal Shah Vs Patel Varanasibhai Shivram - Court Judgment

Excerpt:
[r.v. raveendran; a. k. patnaik] indian penal code section 452 - house-trespass after preparation for hurt, assault or wrongful restraint -- after investigation, the police filed two challans on 02.02.2006 before the judicial magistrate, first class, ludhiana. after further investigation, the superintendent of police, city-ii, ludhiana, submitted his report to the deputy inspector general of police, ludhiana range. the relevant portion of the report of the superintendent of police, city-ii, ludhiana, which contains his conclusions after further investigation, is extracted herein below: "i found during my investigation that mohan singh, son of shri sher singh , dharmatma singh, harpal singh, jagdev singh and bhupinder singh, sons of mohan singh, residents of pullanwal, sold one plot of 1 kanal 13 marlas on 09.03.2004 to bharpur sigh, harnek singh, sons of balbir singh, jagjit singh, son of amarjit singh, gurcharan singh, son of hari dass and jagdev singh, son of harpal singh, resident of phulanawal through registered sale deed vasikha no.23895 and the mutation no.10940 duly entered in the name of purchasing party. for deciding the issue, we must first refer to the provisions of section 173 of the cr.p.c. under which the police submits reports after investigation and after further investigation, section 190 of the cr. p.c. under which the magistrate takes cognizance of an offence upon a police report and section 482 of the cr.p.c. under which the high court exercises its powers to quash the criminal proceedings. report of police officer on completion of investigation. cognizance of offences by magistrate. sub-section (8) of section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the magistrate a further report regarding such evidence and the provisions of sub-section (2) of section 173, cr.p.c., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). thus, the report under sub-section (2) of section 173 after the initial investigation as well as the further report under sub-section (8) of section 173 after further investigation constitute "police report" and have to be forwarded to the magistrate empowered to take cognizance of the offence. r.p. kapur moved the punjab high court under section 561-a of the code of criminal procedure for quashing the proceedings initiated by the first information report. 1. by way of present revision application, the applicant has inter alia prayed for quashing and setting aside the judgment and order dated 30^th september 2003 passed by the joint district judge, banaskantha, confirming the judgment and order dated 29^th november 1995 passed by the civil judge (junior division), deesa in regular civil suit no.175 of 1989, whereby the trial court had dismissed the suit filed by the applicant herein.2. it is the case of the applicant that the applicant-landlord, who is original appellant-plaintiff, filed regular civil suit no.175 of 1989 for possession of the suit premises prescribed in paragraph 3 of the original plaint on the ground of arrears of rent and for amount of arrears and mesne profit against the respondent-tenant, who is original respondent-defendant in the court of civil judge (junior division) at deesa, which ultimately came to be dismissed vide impugned judgment and decree. being aggrieved by the said judgment and decree, the applicant preferred regular civil appeal no.53 of 1995 before the court of 2^nd joint district judge, banaskantha at deesa. the said appeal came to be dismissed vide impugned judgment and order. hence, present revision application.3. mr.t.v. shah, learned advocate for the applicant, has submitted that the courts below have failed to appreciate that the notice at exhibit 52 is not as per the provisions of section 12(2) of the bombay rents, hotels and lodging house rates (control) act, 1947 (hereinafter referred to as 'the act'); that the courts below have erred in holding that the notice under section 12(2) of the act as well as under section 106 of the transfer of property act is also required; that the courts below have erred in holding that the suit falls within the purview of section 12(3)(a) of the act; that the courts below have erred in presuming that the opponent ought not to have refused the suit notice if the notice of atonement had been issued by the applicant previously and that when the opponent has paid the arrears of rent, the applicant is entitled for recovery of possession of the suit property. mr. shah has also read over paragraphs 12 and 13 of the impugned judgment and order passed by the lower appellate court.3.1 in support of his submissions, mr.shah has relied upon the decision of the apex court in the case of v. dhanpal chettiar v. yesodai ammar, reported in air 1979 sc 1745, whereby the apex court has held that in order to get a decree or order for eviction against a tenant under any state rent control act it is not necessary to give notice under section 106 of the transfer of property act. in view of aforesaid, it is prayed that present revision application may be allowed.4. having considered the contentions raised by the learned advocate for the applicant, averments made in the revision application and the documentary evidence produced on record, including the impugned judgment and decree passed by the trial court as well as judgment and order passed by the lower appellate court, it transpires that the notice at exhibit 52 was not issued under section 12(2) of the act read with sections 106 and 111(g) and (h) of the transfer of property act. however, by way of the said notice, it was only intimated to the opponent-tenant that the sale transaction of the suit shop and partition of the shop as mentioned in the said registered sale deed and becoming the owner of the suit shop, for which the applicant is entitled to recover the arrears of rent as well as future rent, which is called the notice of attornment. further, it has been rightly held by the courts below that after issuance of notice at exhibit 52, no notice under section 12(2) of the act read with section 106 of the transfer of property act, has been issued by the applicant to the opponent herein regarding termination of the tenancy right over the suit shop and handing over the possession of the suit shop on account of non-compliance of the said notice before filing the said suit. further, no averment is made in the plaint regarding termination of the tenancy right of the opponent. it is required to be noted that when the opponent came to know that he is in arrears of rent, he immediately paid the entire amount of arrears of rent before the trial court and nothing was outstanding as observed in the impugned judgment and decree. it has been rightly observed by the trial court that there is no breach of provision of section 12(3)(a) of the act. it is required to be noted that in the present case, the suit has been after a period of 1-year, 9-months and 16-days after issuance of notice. in that view of the matter also, the applicant ought to have issued notice just prior to filing of the suit, which is not done so and that establishes mala fide intention on the part of the applicant. in that view of the matter, the view taken by the trial court is just and proper. the lower appellate court has after relying upon the decision of the apex court in the case of mahendra raghunathdas gupta v. vishwanath bhikaji mogul and others, reported in air 1997 sc 2437, has rightly observed that the opponent has been issued a notice at exhibit 52, which is for attornment.4.1 so far as decision of the apex court relied upon by the learned advocate for the applicant mr.shah in the case of v. dhanpal chettiar (supra) is concerned, it is required to be noted that the apex court has held that in order to get a decree or order for eviction against a tenant under any state rent control act, it is not necessary to give notice under section 106 of the transfer of property act. in the present case, the findings recorded by the trial court in that regard are absolutely just and proper and they are not contrary to the said decision. so far as the findings of the appellate court in this respect are concerned, this court may not adopt the same in this respect. the trial court has rightly observed that there is no breach of provisions of section 12(3)(a) of the act. thus, the said decision cited by the learned advocate for the applicant would not be helpful to the applicant.5. in view of aforesaid, i am of the opinion that the trial court has assigned cogent and convincing reasons for arriving at the impugned conclusion. over and above the aforesaid reasons, i adopt the reasons assigned by the trial court and do not find any illegality much less any perversity in the findings recorded. i am in complete agreement with the findings recorded by the trial court. no case is made out to interfere with the findings recorded by the trial court. hence, present revision application deserves to be rejected.6. for the foregoing reasons, present revision application fails and is, accordingly, rejected. rule is discharged. no order as to costs. interim relief, if any, stands vacated.

Judgment:
1. By way of present Revision Application, the applicant has inter alia prayed for quashing and setting aside the judgment and order dated 30^th September 2003 passed by the Joint District Judge, Banaskantha, confirming the judgment and order dated 29^th November 1995 passed by the Civil Judge (Junior Division), Deesa in Regular Civil Suit No.175 of 1989, whereby the trial Court had dismissed the suit filed by the applicant herein.

2. It is the case of the applicant that the applicant-landlord, who is original appellant-plaintiff, filed Regular Civil Suit No.175 of 1989 for possession of the suit premises prescribed in paragraph 3 of the original plaint on the ground of arrears of rent and for amount of arrears and mesne profit against the respondent-tenant, who is original respondent-defendant in the Court of Civil Judge (Junior Division) at Deesa, which ultimately came to be dismissed vide impugned judgment and decree. Being aggrieved by the said judgment and decree, the applicant preferred Regular Civil Appeal No.53 of 1995 before the Court of 2^nd Joint District Judge, Banaskantha at Deesa. The said appeal came to be dismissed vide impugned judgment and order. Hence, present Revision Application.

3. Mr.T.V. Shah, learned advocate for the applicant, has submitted that the Courts below have failed to appreciate that the notice at Exhibit 52 is not as per the provisions of Section 12(2) of the Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as 'the Act'); that the Courts below have erred in holding that the notice under Section 12(2) of the Act as well as under Section 106 of the Transfer of Property Act is also required; that the Courts below have erred in holding that the suit falls within the purview of Section 12(3)(a) of the Act; that the Courts below have erred in presuming that the opponent ought not to have refused the suit notice if the notice of atonement had been issued by the applicant previously and that when the opponent has paid the arrears of rent, the applicant is entitled for recovery of possession of the suit property. Mr. Shah has also read over paragraphs 12 and 13 of the impugned judgment and order passed by the lower Appellate Court.

3.1 In support of his submissions, Mr.Shah has relied upon the decision of the Apex Court in the case of V. Dhanpal Chettiar v. Yesodai Ammar, reported in AIR 1979 SC 1745, whereby the Apex Court has held that in order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 of the Transfer of Property Act. In view of aforesaid, it is prayed that present Revision Application may be allowed.

4. Having considered the contentions raised by the learned advocate for the applicant, averments made in the Revision Application and the documentary evidence produced on record, including the impugned judgment and decree passed by the trial Court as well as judgment and order passed by the lower Appellate Court, it transpires that the notice at Exhibit 52 was not issued under Section 12(2) of the Act read with Sections 106 and 111(g) and (h) of the Transfer of Property Act. However, by way of the said notice, it was only intimated to the opponent-tenant that the sale transaction of the suit shop and partition of the shop as mentioned in the said registered sale deed and becoming the owner of the suit shop, for which the applicant is entitled to recover the arrears of rent as well as future rent, which is called the notice of attornment. Further, it has been rightly held by the Courts below that after issuance of notice at Exhibit 52, no notice under section 12(2) of the Act read with Section 106 of the Transfer of Property Act, has been issued by the applicant to the opponent herein regarding termination of the tenancy right over the suit shop and handing over the possession of the suit shop on account of non-compliance of the said notice before filing the said suit. Further, no averment is made in the plaint regarding termination of the tenancy right of the opponent. It is required to be noted that when the opponent came to know that he is in arrears of rent, he immediately paid the entire amount of arrears of rent before the trial Court and nothing was outstanding as observed in the impugned judgment and decree. It has been rightly observed by the trial Court that there is no breach of provision of Section 12(3)(a) of the Act. It is required to be noted that in the present case, the suit has been after a period of 1-year, 9-months and 16-days after issuance of notice. In that view of the matter also, the applicant ought to have issued notice just prior to filing of the suit, which is not done so and that establishes mala fide intention on the part of the applicant. In that view of the matter, the view taken by the trial Court is just and proper. The lower Appellate Court has after relying upon the decision of the Apex Court in the case of Mahendra Raghunathdas Gupta v. Vishwanath Bhikaji Mogul and others, reported in AIR 1997 SC 2437, has rightly observed that the opponent has been issued a notice at Exhibit 52, which is for attornment.

4.1 So far as decision of the Apex Court relied upon by the learned advocate for the applicant Mr.Shah in the case of V. Dhanpal Chettiar (supra) is concerned, it is required to be noted that the Apex Court has held that in order to get a decree or order for eviction against a tenant under any State Rent Control Act, it is not necessary to give notice under Section 106 of the Transfer of Property Act. In the present case, the findings recorded by the trial Court in that regard are absolutely just and proper and they are not contrary to the said decision. So far as the findings of the Appellate Court in this respect are concerned, this Court may not adopt the same in this respect. The trial Court has rightly observed that there is no breach of provisions of Section 12(3)(a) of the Act. Thus, the said decision cited by the learned advocate for the applicant would not be helpful to the applicant.

5. In view of aforesaid, I am of the opinion that the trial Court has assigned cogent and convincing reasons for arriving at the impugned conclusion. Over and above the aforesaid reasons, I adopt the reasons assigned by the trial Court and do not find any illegality much less any perversity in the findings recorded. I am in complete agreement with the findings recorded by the trial Court. No case is made out to interfere with the findings recorded by the trial Court. Hence, present Revision Application deserves to be rejected.

6. For the foregoing reasons, present Revision Application fails and is, accordingly, rejected. Rule is discharged. No order as to costs. Interim relief, if any, stands vacated.