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1998 DIGILAW 697 (ALL)

Phool Singh v. Additional J S C C Bareilly

1998-07-14

S.P.SRIVASTAVA

body1998
Judgment Shitla Pd. Srivastava, J. 1. This petition under Article 226 of the Constitution of India has been filed by the petitioner who was the tenant for quashing the judgment and order dated 27th March, 1993 and 3rd February, 1998, passed by the respondent Nos. 1 and 2 respectively (Annexures 4 and 10 to the writ petition). 2. The facts giving rise to the present writ petition in brief are that the respondent No. 3 filed a suit for ejectment against the petitioner before the J.S.C.C. on the ground that default was made by the petitioner for payment of monthly rent. In paragraph 9 of the plaint it was stated that the landlord on 3rd July, 1981 served a notice under Section 106 of the Transfer of Property Act on the defendant and then filed a suit. The suit was contested by the petitioner on a number of grounds. The main ground of defence was that the building is covered under U.P. Act No. 13 of 1972, therefore, the suit is not maintainable. The second ground was that the notice under Section 106 of the Transfer of Property Act was illegal and no suit can be filed on the basis of the said notice. The other defence taken by the petitioner was that he has deposited the amount on the first date of hearing, therefore, he was entitled to the benefit of Section 21(4) of U.P. Act No. 13 of 1972. It is further stated in the petition that after filing suit the respondent landlord applied under Section 21(l)(a) of the Act 13 of 1972 for release of the property. The said application was dismissed up to the High Court. The trial Court decreed the suit. Aggrieved by the said judgment a revision was filed by the petitioner. The petitioner filed an application under Order XLI, Rule 27, CPC before the Revisional Court to admit the release application filed by the landlord to prove that the boundaries given in the notice as well as in the suit were different to that of the boundaries given in the application for release. The revision was also dismissed. The petitioner has challenged these two orders in this writ petition. The petition was opposed at the admission state by Mr. Rajesh Tandon without filing any counter-affidavit. 3. The revision was also dismissed. The petitioner has challenged these two orders in this writ petition. The petition was opposed at the admission state by Mr. Rajesh Tandon without filing any counter-affidavit. 3. Learned Counsel for the petitioner has urged that a notice under Section 106 of the Transfer of Property Act was given on 3rd July, 1981 and a suit was filed on 20th September, 1981. As the provisions of U.P. Act No. 13 of 1972 were applicable, therefore, the notice was bad in law and the suit itself was not maintainable. His contention is that the notice given under Section 106 of the Transfer of Property Act was waived under Section 113, when an application under Section 21 was filed during the pendency of the revision, wherein the landlord applied for release, meaning thereby that he admitted that the tenant is still continuing. His contention is that this admission of the landlord nullifies the effect of the notice under Section 106 of the Transfer of Property Act determining the tenancy. His further contention is that the boundaries given in the notice are different to the boundaries given in the release application, therefore, the notice is bad in law. His second contention is that as the U.P. Rent Control Act was applicable on the date of the suit and even if it was not applicable on that date, it became applicable during the pendency of the suit, therefore, the petitioner was entitled to the benefit or Section 20(4) of the Act, in view of Section 39 of the Act. For that purpose he has placed reliance on, Raghunath Dayal v. District Judge, Etah and Ors. 1991 (1) ARC 376. 4. Mr. Rajesh Tandon, Advocate, appearing on behalf of the contesting respondent has urged that the point of waiver under Section 13 of the Transfer of Property Act was not taken before the Revisional Court in the revision filed by the petitioner, therefore, this point can not be argued here in the writ jurisdiction. 1991 (1) ARC 376. 4. Mr. Rajesh Tandon, Advocate, appearing on behalf of the contesting respondent has urged that the point of waiver under Section 13 of the Transfer of Property Act was not taken before the Revisional Court in the revision filed by the petitioner, therefore, this point can not be argued here in the writ jurisdiction. His contention is that the provisions of Rent Control Act are not applicable as the applicability of the Act is to be decided on the basis of the first municipal assessment of the building in question and as in this case the finding of fact has been recorded and that the first assessment was made in 1977, therefore, the provisions of Act was not applicable on the date when the suit was filed and since the case was not pending on July 15, 1972, when the Act came into force, rather it was filed in 1981, therefore, the provisions of the Act will not be applicable even if the requisite period of construction was completed during the pendency of the suit. He has placed reliance on a decision in Ashok Kumar Srivastava v. VII Addl. District Judge, 1989 (1) ARC 144. He has further placed reliance on Suresh Chand v. Gulam Chisti, 1990 (1) ARC 233, wherein the Supreme Court has held that the suit for eviction must be pending on 15th July, 1972. He has also placed reliance on a case reported in Raj Kumar Sharma v. District Judge, Hardwar, 1993 (2) ARC 103, wherein it has been held that the first date of Municipal Assessment is relevant date for granting period for applicability of Act No. 13 of 1972. He has further placed reliance on Bhola Nath Varshney v. Mulak Raj Madan, 1994 (1) JT (SC) 181, wherein it has been held that the law applicable on the date or the institution of the suit alone governs the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/revision, the Act does not become applicable. Further reliance has been placed by him on Atma Ram Mittal v. Ishwar Singh Punia, 1988 SC FBRC 549, wherein it has held that the right of the parties will have to be determined on the basis of the right avail able to them on the date of the suit. Further reliance has been placed by him on Atma Ram Mittal v. Ishwar Singh Punia, 1988 SC FBRC 549, wherein it has held that the right of the parties will have to be determined on the basis of the right avail able to them on the date of the suit. Further reliance has been placed by him on a case Ramesh Chandra v. IIIrd Addl. District Judge, Nainital, reported in 1992 Supreme Court Full Bench Rent Cases, 112. He has also placed reliance on a case reported in, Nootan Kumar and others v. IInd Addl. District Judge, 1993 (2) ARC 204, for the purpose that there cannot be any tenancy without any allotment, therefore, even if even an application under Section 21 was filed that will not create a tenancy. In reply, Mr. P.K. Jain has submitted that the revisional court had jurisdiction to entertain the application for accepting the additional evidence under Order XLI, Rule 27, CPC. Since it has not been considered the judgment is illegal. 5. Heard learned Counsel for the par ties and perused the judgments of both the courts below. After hearing the learned Counsel for the parties, I am of the view that the finding recorded by two courts below do not require any interference under Article 226 of the Constitution of India. From the judgment of the trial Court it is apparent that the plea taken by the petitioner regarding maintainability of the suit was on two grounds, firstly that the Rent Control Act is applicable, therefore, the suit was not maintainable, secondly that the notice was waived when the application under Section 21 of the Rent Control Act was filed. The appellate Court has recorded a finding that the construction was made in 1977 and the suit was filed in 1981 i.e. well within ten years from the date of the construction. For that the trial court has taken help of the first Municipal assessment, therefore, the finding of the trial Court that the provisions of Act No. 13 of 1972 are not applicable is a finding of fact and this finding of fact has been affirmed by the appellate Court, which requires no interference. For that the trial court has taken help of the first Municipal assessment, therefore, the finding of the trial Court that the provisions of Act No. 13 of 1972 are not applicable is a finding of fact and this finding of fact has been affirmed by the appellate Court, which requires no interference. So far as waiver point is concerned, the two courts have held that since the provisions of Act 13 of 1972 are not applicable, I am of the view that as no tenancy could be created without any allotment under the Act, therefore, by mere filing of the application under Section 21 it cannot be said that the plaintiff has waived the notice given under Section 106 of the Transfer of Property Act. On the point of benefit to the petitioner under Section 21(4) I am of the view that as the provisions of Act 13 of 1972 are not applicable the findings given by the courts below are proper and legal. 6. The writ petition has no force. It is therefore, dismissed, but there will be no order as to costs. Petition dismissed.