Devendra Kumar Upadhyaya, J.@mdashHeard Sri Arun Saxena, learned counsel for the revision applicant and Sri Aslam Khan, learned counsel for the opposite party.
2. This revision petition has been filed under Section 25 of the Provincial Small Causes Courts Act challenging the judgment and order dated 25.09.2013 whereby SCC Suit preferred by the opposite party for eviction, recovery of rent and damages for use and occupation of the shop in question has been decreed.
3. The opposite party filed a suit for recovery of rent, eviction and payment of damages for use and occupation of shop no. 9, situate in Nagar Palika market, old Galla Mandi, city of Lakhimpur which is bounded on the east by shop of Nagar Palika, on the west by a lane, on the north by shops of Nagar Palika and on the south by a road. The suit was filed with the plaint allegations that the revision applicant-defendant has not made payment of rent of the shop from the month of January, 2008 till August, 2008 and accordingly, a notice on 06.09.2008 was sent to him demanding the rent, however, even after receipt of notice, the defendant did not make the payment of rent and since the notice period expired on 07.10.2008, the tenancy stood terminated and since then occupation of the shop in question is unlawful and hence, the plaintiff is entitled to be paid the amount not only of the rent which is due but also the damages for illegal use and occupation of the shop in question and further he is also entitled to get the defendant evicted.
4. A written statement was filed by the defendant stating therein that the plaintiff did not have right to sue through his guardian and hence, since the suit has been filed by the unauthorized person, as such it is not maintainable. It was also stated that the plaintiff is not the owner of shop in question, hence, he cannot institute the suit in his capacity as landlord and further that the plaintiff, who is not allottee of the shop, does not have right to institute the suit. It was further stated that the shop in question is in the ownership of the Nagar Palika Parishad, Lakhimpur and further that the plaintiff did not do any business in the shop and also that the plaintiff is blind . The defendant also stated in the written statement that the plaintiff has been living in Kanpur along with his father and still lives there. It was also stated that by an oral agreement it was agreed between the parties that the defendant shall pay a sum of Rs. 1,50,000/- as consideration and in lieu thereof the shop in question will be got transferred in favour of the defendant. It was also stated that the occupation of the defendant is as per the said oral agreement.
5. On the basis of pleadings submitted by the parties, learned trial court framed four issues, namely, (1) as to whether the defendant had defaulted in making the payment of rent, (2) as to whether the provisions of U.P. Act No. 13 of 1972 are applicable on the shop in question, if yes, as to whether the defendant is entitled to seek the benefit of provisions of Section 20(4) of the said Act, (3) as to whether the notice given by the plaintiff to the defendant is unlawful and hence, the same did not terminate the tenancy and (4) as to what relief the plaintiff is entitled to.
6. Discussing the evidence led by the parties, an unambiguous finding has been recorded by the learned trial court to the effect that the evidence on record shows that the defendant has not paid any amount to the plaintiff since January, 2008 and further that there was no agreement between the parties for transferring the shop in question for a consideration of Rs. 1,50,000/-. The court below, thus, decided the issue no. 1 and held that the defendant had defaulted in making the payment of rent. As regards the issue no. 2, a finding by the court below has been recorded that since the shop is newly constructed, the provisions of U.P. Act No. 13 of 1972 are applicable, thus, the benefit of provision of Section 20(4) of U.P. Act No. 13 of 1972 is not available to the defendant. In respect of issue no. 3 also, a clear finding has been recorded that the notice issued by the plaintiff to the defendant was lawful and as such the tenancy stood terminated after 30 days from the date of receipt of notice. The trial court has held the plaintiff to be entitled for eviction, recovery of rent and also payment of damages.
7. The sole question which has been pressed by the learned counsel for the revision-applicant in the instant case is that the court below has wrongly held that the suit is maintainable on behalf of the plaintiff through his natural guardian as father treating him to be his next friend.
8. It has been submitted by learned counsel for the revision-applicant that without adjudging or conducting any inquiry as to the incapacity or incapability of the plaintiff by reason of any mental infirmity, the learned trial court has erred in law in proceeding with the suit.
9. However, the aforesaid submission made by learned counsel for the revision-applicant needs to be rejected in the facts and circumstances of the case.
10. In the plaint, the plaintiff was clearly described as Ahmad Maqsood Naquvi, aged about 30 years, son on Shah Nawaj Naquvi (handicapped) through natural guardian and next friend Shah Nawaj Naquvi.
11. It is noteworthy that the plaintiff is blind as has been admitted by the defendant himself in his written statement. In para 11 of the written statement, it has been clearly stated by the defendant that the plaintiff is blind . Thus, there is clear admission on the part of the defendant as to the blindness of the plaintiff. The learned trial court on 25.09.2013 while disposing of the application No. 73C2 (732) moved by the defendant has considered the issue raised by the defendant and has come to the conclusion that a person who is blind cannot be said to be capable enough to protect his interest. The learned trial court has relied upon an affidavit filed by the father of the plaintiff wherein it has been stated that the plaintiff is handicapped and on account of his ailment he suffers from invisibility.
12. Order 32 Rule 15 of CPC makes provision for instituting suit by or against minors and persons of unsound mind. Rule 15 of Order 32 of CPC provides that Rules 1 to 4, except Rule 2A, shall so far as may be, apply to the persons adjudged before or during pendency of the suit to be of unsound mind. The said provision further provides that the provision of Rule 1 to 14 (except Rule 2A) of Order 32 of CPC, shall also apply to the persons, who, though not so adjudged, are found by the court, on enquiry, to be incapable, by reason of mental infirmity, of protecting their interest when they are suing or being sued.
13. In the instant case, it is the admission of the defendant himself in the written statement that the plaintiff is , thus, the learned trial court has come to the conclusion that on account of invisibility from which the plaintiff suffers, he is not in a position by the reason of mental incapacity to protect his interest and hence, looking to the entire facts and circumstances of the case, the learned trial court permitted to filing of suit on behalf of the plaintiff through his father who is natural guardian and next friend.
14. It is noteworthy that the Order 32 Rule 15 of CPC uses two different phrases (1) "unsound mind" and (2) "incapable by reason of mental infirmity." According to the said provision, a suit can be permitted to be instituted through next friend, in case the plaintiff is adjudged before or during pendency of the suit, to be a person of unsound mind. The second circumstance or exigency which has been envisaged in the provision of Order 32 Rule 15 of CPC is that the plaintiff can be permitted to institute the suit through his next friend in case, on inquiry by the court, the person concerned is found to be incapable by reason of any mental infirmity. Thus, a person of "unsound mind" has to be distinguished from a person who is "incapable by reason of any mental infirmity". The "incapacity" or "incapability" by reason of mental infirmity may, in certain circumstances, arise on account of the fact that the person who is seeking to institute the suit suffers from invisibility or blindness. The invisibility itself, may lead to a kind of mental infirmity making a person incapable of protecting his interest. Thus, in view of above, I am of considered opinion that the judgment and order passed by the learned court below does not suffer from any illegality.
15. Learned counsel for the revision-applicant has, however, placed reliance on the judgment of the Supreme Court in the case of
16. So far as the submission made by learned counsel for the revision-applicant based on the aforesaid judgment of Kasturibai and others (supra) is concerned, I may only indicate that the inquiry as contemplated in Order 32 Rule 15 of CPC does not mean full-fledged inquiry. This view is supported by the judgment of this Court in the case of
17. In view of discussions made above, I do not find any illegality or infirmity in the order passed by the learned trial court so as to call for any interference in this petition, which is hereby dismissed.
18. However, there will be no order as to costs.
