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1982 DIGILAW 1044 (ALL)

Jagan Nath v. Sushila Devi

1982-09-13

K.C.AGARWAL

body1982
JUDGMENT K.C. Agarwal, J. - This writ petition challenges the orders of the Additional District Judge passed under section 25 of the Provincial Small Causes Court Act and that of the Judge Small Causes dated 11th March, 1976. 2. She facts briefly stated are these. Respondent No. 1 Smt. Sushila Devi filed suit No. 156 of 1972 on December 5, 1972 for ejectment of the petitioner on the grounds, inter alia, that the disputed shop had been let out on Rs. 17/- per month as rent and the construction was of the year 1965, hence the provisions of U. P. Act No. XIII of 1972 were not applicable. In paragraph 2 of the plaint the plea set up was as follows : "that the shop in question is a construction of 1965 A. D., hence the provisions of U.P. Act No. XIII is not applicable to it." The petitioner filed written statement on March 6, 1973 and alleged that the shop had been constructed in the year 1951 and that the U. P. Act No. 3 of 1947 would apply to the same. During the pendency of the suit the petitioner filed application dated 10th April, 1975 requiring the respondents to give date of construction of the shop. This application was followed by deposit of entire amount by him as contemplated by section 39 of the Act on 24th July, 1975 alongwith the rent. The Judge Small Causes Court by its judgment dated 11th March, 1976 held that the shop was constructed in February, 1965, and as the deposit of the amount required by section 39 was not made within one month of the commencement of the Act, the defendant was not entitled to relief of eviction. The petitioner went up in revision under section 25 of the Small Causes Court At which was dismissed and the finding about the construction of the shop having been made in February, 1965 was confirmed. Being aggrieved, the petitioner filed a civil revision (Civil Revision No. 2192 of 1976) under section 115 of the Code of Civil Procedure . This revision was dismissed on 9.5.1979 on the ground that in view of the Full Bench decision of this Court it was not maintainable. The petitioner, thereafter filed the present writ petition. 3. Being aggrieved, the petitioner filed a civil revision (Civil Revision No. 2192 of 1976) under section 115 of the Code of Civil Procedure . This revision was dismissed on 9.5.1979 on the ground that in view of the Full Bench decision of this Court it was not maintainable. The petitioner, thereafter filed the present writ petition. 3. The learned counsel appearing for the petitioner urged that the courts below committed an error in replying upon the evidence of respondent No. 1 with regard to construction of the shop and in holding that the defendant had not deposited the entire amount within one month of the application of the Act to the building in dispute. His contention was that for the purpose of proving the date of construction only evidence admissible in law was Municipal records. 4. After hearing counsel for the parties, I am of opinion that the writ petition has no merit and is liable to be dismissed. The petitioner has been taking a shifting stand about the date of construction of the disputed building. He want on changing his case of and on. In the beginning when he filed the written statement, the case taken was that the shop had been constructed in 1951 and that the building was governed by U. P. Act No. 3 of 1947. This plea had been taken to plead that Act No. XIII of 1972 did not apply to the building in question. Sub-section (2) of section 2 of the aforesaid Act lays down that nothing in the rent control legislation shall apply to a building "during a period of ten years from the date of which its construction is completed". Jagannath (D. W. 1) who appeared on behalf of the defendant stated that he had been seeing the shop as such since 1957-58. Ram Lal (D. W. 2) stated that he was seeking the shop in the same condition since 1948. The evidence of the defendant was found to be untrustworthy and was discarded by the Judge Small Causes Court. The Judge Small Causes Court referred to the evidence of the plaintiff and found on its basis that the shop in question was completed in February, 1965. The evidence of the defendant was found to be untrustworthy and was discarded by the Judge Small Causes Court. The Judge Small Causes Court referred to the evidence of the plaintiff and found on its basis that the shop in question was completed in February, 1965. Holding that the shop was made in 1965, the Judge Small Causes Court held that U. P. Act No. XIII of 1978 became applicable to the shop in February, 1975 and as the deposit of the entire amount required by Section 39 was not made within one month of the Act applying to the building, the petitioner was held not to be entitled to be relieved of eviction. These findings had been affirmed in revision by the Additional District Judge under section 25 of the said Act. 5. Shri V. K. Gupta, relied upon a decision of the Supreme Court in R. S. Rai v. Lilawatil, 1980 (2) U.P.R.C.C. 419. and urged that the oral evidence of the parties since was inadmissible to prove the date of construction, the courts below erred in relying upon oral evidence and in holding on its basis that the shop was constructed in 1965. Admittedly none of the two parties in this case filed the Municipal papers to prove the date on which the first assessment order was made. The plaintiff first assessment was made. The petitioner did not pursue the matter and cross examined the respondent. From the evidence adduced, the two courts found that the construction was completed in February, 1965. As noted above, the petitioner himself had pleaded at one time that the shop was constructed before 1965 and now since it did not suit him, he had changed his version about the construction. P. W. 2 Shafiullah who had constructed the shop in dispute stated that the shop was constructed in the beginning of 1965. Ext. 4 which was rent note executed in favour of respondent No. 1, the predecessor, in-interest on 20th July, 1965, clearly mentions that the shop was constructed in 1965. Therewas, therefore, enough material for the petitioner to come to the conclusion that the shop was constructed in February, 1965 but shall pleaded ignorance about it and applied for dates of construction being given by respondent No. 1 to enable the petitioner to deposit the rent and other amounts as contemplated by section 39, he has to thank himself. Therewas, therefore, enough material for the petitioner to come to the conclusion that the shop was constructed in February, 1965 but shall pleaded ignorance about it and applied for dates of construction being given by respondent No. 1 to enable the petitioner to deposit the rent and other amounts as contemplated by section 39, he has to thank himself. In such state of affairs as exhibited in the instant case. I do not find the present case as a fit one for holding that the judgments of two courts below suffer from any error apparent on the face of record and liable to be set aside. 6. In the result, the writ petition fails and is dismissed with costs. The petitioner is given three month's time to vacate the premises in dispute. He will hand over the possession of the shop in question within this period of three months and shall also pay the entire amounts which may due to respondent No. 1 within this period.