Shri Jhaman Das v. Shri Ram Krishan — 1986 DIGILAW 104 (ALL)

JUDGMENT N.D. Ojah, J. - This is a tenant's revision under Section 25 of the Provincial Small Causes Courts Act against the decree dated 28.11.1985 passed by the IV Addl. District Judge, Kanpur decreeing the suit filed by the plaint if opposite party for ejectment of the applicant from an accommodation and for arrears of rent etc. the plaintiff-opposite parties have put in appearance and a caveat has been filed on their behalf. Consequently I have heard counsel for the parties. 2. It has been urged by counsel for the applicant that U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, hereinafter referred to as the Act, was applicable to the accommodation in question and consequently no decree for ejectment could be passed unless any of the grounds contemplated by Section 20 of the Act was made out. In so far as this submission is concerned, it may be pointed out that copies of the plaint and the written statement it have been filed by the parties along with their affidavits before me. In the plaint it was specifically stated that the accommodation in question was constructed in the year 1977, its first assessment was made before 1978 and as such, the Act was not applicable to the said accommodation. The written statement filed by the applicant, a copy whereof has been filed by the applicant himself along with his rejoinder affidavit indicates that in paragraph 2 thereof it was specifically stated" It is, however, not disputed that the accommodation in suit is new and does not fall within the purview of U.P. Act No. 13 of 1972". The necessary averment in this behalf was contained in paragraph 3 of the plaint. Paragraph 3 of the written statement contained reply of paragraph 3 of the plaint. It states that para No. 3 of the plaint is not admitted. Correct facts will appear from additional pleas". In the additional pleas it has nowhere been stated that the accommodation in question was constructed prior to 1977 or its first assessment was made before 1978 and, as such, the Act was applicable to it. On the other hand towards the end of paragraph 13 of the written statement it has been reiterated that the building was out of the purview of U.P. Act No. 13 of 1972 (wrongly stated as U.P. Act No. 12 of 1972). On the other hand towards the end of paragraph 13 of the written statement it has been reiterated that the building was out of the purview of U.P. Act No. 13 of 1972 (wrongly stated as U.P. Act No. 12 of 1972). It was, thus, a case where the fact that the accommodation in question had been constructed in the year 1977, that its first assessment was made in 1978 and that consequently the Act was not applicable to it stood admitted in the written statement and apparently the plaintiff-opposite parties were not called upon to establish this admitted fact. Counsel for the applicant, however, urged that an issue on the point had been framed notwithstanding the pleadings of the parties as stated above and consequently the burden lay on the plaintiff-opposite parties to prove their assertion by producing a certified copy of the order of assessment. Since that was not done, oral evidence on that point could not be looked into. In this connection reliance has been placed by counsel for the applicant on the decision of the Supreme Court in Ram Saroop Rai v. Smt. Lilavati, 1980 A.L.J. 651. That was a case as is apparent from its perusal that there was a dispute between the parties as to whether the Act applied to the building in question. Both the parties had produced evidence on that point. Reliance inter alia was placed by the landlord on an admission of the tenant in the rent-deed to the effect that the accommodation was a new construction. It was held that the burden of proving the date on which the construction of the building was completed was on the landlord and he had to establish it in accordance with the provisions contained in the Explanation 1 to Section 2 (2) of the Act. 3. As regards the admission in the rent-deed it was pointed out in the case of Ram Saroop Rai (Supra) that an admission is not always conclusive especially in the light of the Municipal Records such as are available. In my opinion that decision is clearly distinguishable on the facts of the instant case. In Nagindas Ramdas v Dalpatram Iccharam alias Brijram and others, AIR 1974 S.C. 471 it was held in paragraph 26 of the report, "Admissions, if true and clear, are by far the best proof of the facts admitted. In my opinion that decision is clearly distinguishable on the facts of the instant case. In Nagindas Ramdas v Dalpatram Iccharam alias Brijram and others, AIR 1974 S.C. 471 it was held in paragraph 26 of the report, "Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong". As seen above, the case of Ram Saroop Rai (Supra) was not a case of admission in pleadings, but was a case of evidentiary admission, the same being in the rent-deed and not in the written statement. As such that admission was not conclusive and could be shown to be wrong. In the instant case, however, the admission is in the written statement and as held in the case of Naginda Ramdas (Supra) by the Supreme Court this admission is fully binding on the applicant and constituted a waiver of proof. This admission itself could be made the foundation of the rights of the parties. In my opinion, therefore, there is no substance in the aforesaid submission. 4. It was then urged by counsel for the applicant that the notice under Section 106 of the Transfer of Property Act was invalid inasmuch as it required the applicant to vacate the accommodation in question and hand over possession thereof to the landlord within 30 days. A similar plea was raised before a Full Bench of this Court in Gorakh Lal v. Maha Prasad Narain Singh and others, AIR 1964 Allahabad 260 and was repelled. It was held that the words used in the notice asking the tenant to vacate the premises within thirty days from the date of service of the notice only fix the outer limit by which the tenant must vacate. The limit fixed was the last moment of the thirtieth day of the notice. It was held that the words used in the notice asking the tenant to vacate the premises within thirty days from the date of service of the notice only fix the outer limit by which the tenant must vacate. The limit fixed was the last moment of the thirtieth day of the notice. and the notice so construed was strictly according to the letter and spirit of the law and was valid. In view of this decision I find no substance in this submission either. 5. Counsel for the applicant then urged that the rent for the period even after the expiry of the termination of tenancy had been deposited by the applicant in the suit and had been withdrawn by the plaintiff opposite parties and consequently the notice to terminate the tenancy stood waived under Section 113 of the Transfer of Property Act. In Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh AIR 1968 S.C. 933 , it was held that a waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. In Moti Lal v. Basant Lal and another, AIR 1965 All. 175 it was held that no question of waiver arises after the landlord has brought a suit on the basis of a valid notice given for determination of the lease. After such a suit has been brought, there can be no waiver. As held by the Supreme Court in the case of Associated Hotels of India (supra) a waiver is an intentional relinquishment of a known right. When the landlord has after terminating the tenancy of a tenant instituted a suit suit his ejectment and is pursuing it his intention is known, namely, that he does not wish the tenant to continue as a tenant of the accommodation. Simply because after the institution of the suit the rent for the period subsequent to the date of termination of the tenancy deposited by the tenant is withdrawn by the landlord it cannot be said that there was an intention to waive the notice. In Khumani v. Saktey Lal, AIR 1952 All. Simply because after the institution of the suit the rent for the period subsequent to the date of termination of the tenancy deposited by the tenant is withdrawn by the landlord it cannot be said that there was an intention to waive the notice. In Khumani v. Saktey Lal, AIR 1952 All. 579 it was held that if the landlord actively continues the prosecution of the case or appeal with regard to the ejectment of the tenant, mere acceptance of rent by him cannot be treated as waiver. 6. Lastly, it was urged by counsel for the applicant that sub-section (2) of Section 2 of the Act which provides that except with regard to the Sections mentioned therein nothing in the Act shall apply to a building during the period of ten years from the date on which its construction is completed is ultra vires, the same being discreminatory and violative of Article 14 of the Constitution. Reliance in support of this submission has been placed on the decision of the Supreme Court is Motor General Traders and another v. State of Andhra Pradesh and others, AIR 1984 S.C. 121 . On the fact of it the said case is clearly distinguishable. In my opinion sub-Sec. (2) of Section 2 of the Act cannot be held to be ultra vires on the ground urged by counsel for the applicant. It is settled law that reasonable classification is always permissible. Of course, in order to hold the classification to be reasonable it has to be found that there is a rational basis which provides nexus for the classification. The aforesaid sub-sec. (2) of Section 2 was brought on the statute book in order to provide incentive for investing money in constructing buildings so that they may be available for occupation of those who have no building to reside. The facts of the case of Motor General Traders (supra) were that Sec. 32(b) of A.P. Building (Lease, Rent and Eviction) Control Act (15 of 1960) exempted all buildings constructed on or after 26.8.1957 from the operation of the Act. The facts of the case of Motor General Traders (supra) were that Sec. 32(b) of A.P. Building (Lease, Rent and Eviction) Control Act (15 of 1960) exempted all buildings constructed on or after 26.8.1957 from the operation of the Act. It was held that the said Section is violative of Article 14 as the classification of buildings for purposes of Section 32 (b) does not satisfy the true tests of a valid classification and the continuance of that provision on the statute book will imply the creation of the privilege class of landlords without any rational basis as the incentive to build which provided a nexus for reasonable classification of such class of landlords no longer exists by lapse of time in the case of majority of such landlords. That is not the position in the instant case. Here the incentive provided is confined to a fixed number of years and, by virtue of the provisions contained in this behalf in the Act, on the expiry of ten years or of fifteen years if the case is covered by the proviso to sub-Section (2) of Section 2 from the date on which the construction of the building is completed, the Act automatically becomes applicable to that building. In my opinion the incentive to build in the instant case provides a nexus for reasonable classification. 7. No other point has been pressed. 8. In the result, I find no merit in this revision. It is accordingly dismissed. 9. Having heard counsel for the plaintiff-Opposite parties in this behalf I grant one month's time to the applicant to vacate the accommodation in question. There shall be no order as to costs. 10. A copy of this order may be supplied to counsel for the parties on payment of necessary charges within three days.