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2000 DIGILAW 960 (ALL)

Vinod Kumar Patkar v. District Judge

2000-07-25

R.H.ZAIDI

body2000
Judgment R.H. Zaidi, J. (1) Heard learned Counsel for the petitioner. (2) By means of this petition filed under Article 226 of the Constitution of India petitioner challenges the validity of the order dated 12.8.1999 passed by the respondent No. 1 and order dated 22.9.1998 passed by the respondent No. 2. It appears that the plaintiff-respondent No. 3 filed a suit for ejectment and recovery of rent which was registered as Suit No. 9 of 1995, on the ground that the provisions of the U.P. Act No. XIII of 1972 has no application to the building in question, and that tenancy was terminated in accordance with law. Suit was contested by the petitioner pleading that the building in question was an old building and the provisions of the Act were applicable to it. There existed no ground for his ejectment, therefore, suit was liable to be dismissed. On the basis of the pleadings of the parties, trial Court framed relevant issues. There after, parties produced evidence in sup port of their cases. The trial Court recorded findings on the relevant issue in favour of plaintiff-respondent and decreed the suit on 22.9.1998. Challenging the validity of the said decree petitioner filed a revision before the Court below. The Court below has also affirmed the judgment and decree passed by the trial Court and dismissed the revision by its judgment and order dated 12.8.1999, hence the present petition. (3) Learned Counsel for the petitioner vehemently urged that there was no pleading on behalf of the plaintiff-respondent that the building in question was first assessed in year 1985-86, According to them, the building in question was assessed in the year 1986-87, therefore, the Court below has acted illegally in relying upon the assessment for the year 1985-86 and holding that the provisions of the Act has no application to the building in question. The judgment and order/decree passed by the Court below were, therefore, liable to be set aside. (4) I have considered the submissions made by the learned Counsel for the petitioner. In the plaint, it is not disputed that it was pleaded that the provisions of the Act had no application over the building in question. The said fact was denied by the defendant-petitioner. The trial Court, on the basis of the pleadings of the parties, framed issues on the question as to whether the provisions of the Act were applicable. In the plaint, it is not disputed that it was pleaded that the provisions of the Act had no application over the building in question. The said fact was denied by the defendant-petitioner. The trial Court, on the basis of the pleadings of the parties, framed issues on the question as to whether the provisions of the Act were applicable. Parties produced evidence in support of their cases. The petitioner him self filed the assessment order for the year 1985-86. There was no other evidence to show that the building in question was assessed prior to the said order. The trial Court as well as the Court below have committed no error in placing the reliance on the assessment for the year 1985-86 and in holding that the suit was filed within ten years from the said period, therefore, the provisions of the Act had no application over the building in question/shop. (5) I do not find any illegality or infirmity in the findings recorded by the Courts below. No case of interference under Article 226 of the Constitution of India is made out:- 8. Lastly, learned Counsel for the petitioner submitted that the building in question is a commercial building which is situated at Ganj Dundwara, District Etah in the locality wherein vacant shop was not available. It is very difficult to the petitioner to search alternative accommodation to run his business. He, there fore, prayed that some reasonable time may be granted to the petitioner to vacate the shop in dispute. At this stage, nobody is appearing on behalf of the contesting respondent. However, under the facts and circumstances of the case, in my opinion, it will meet ends of justice if I grant six months time to vacate the shop in question subject to the condition that petitioner furnishes an undertaking in writing before the trial Court, within one month from today, that on expiry of six months time he shall deliver vacant possession of the shop in dispute to the respondent No. 3 and shall also pay rent/damages for the use and occupation of the shop in dispute to the said respondent, for a period he remains in occupation of the same, falling which this order shall stand automatically vacated. It is ordered accordingly, it is further provided that in case respondent No. 3 feels aggrieved by this order, liberty to him to approach this Court for redressal of his grievance, if any. 9. Subject to what has been stated above, the writ petition fails and is dismissed in limine. Petition dismissed.