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Allahabad High Court · body

2001 DIGILAW 321 (ALL)

RAM BABU JAIN v. VIRENDRA KUMAR GUPTA

2001-04-09

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THIS is revision under Section 25 of the Provincial Small Cause Courts Act, 1887 against the judgment and decree dated 25. 1. 2001 passed by the J. S. C. C. /ivth Additional District Judge, aligarh in S. C. C. Suit No. 38 of 1991. ( 2 ) THE premises in dispute In shop No. 1786-B situated within the limits of Nagar Palika, hathras. The respondents filed the suit for eviction against the revisionist mainly on the ground that the shop was imposed tax for the first time on 1. 10. 1981. That the suit was filed on 30. 5. 1991 and therefore. U. P. Act No. 13 of 1972 does not apply to the premises in suit. That the tenancy has been terminated by the notice. ( 3 ) THE revisionist contested the suit alleging that the shop in dispute is an old construction. Previously Jwala Prasad was the tenant of the shop and thereafter, the revisionist is a tenant. That the notice is invalid, ( 4 ) THE trial court framed necessary issues and recorded the findings in favour of the respondents on all issues and decreed the suit. Aggrieved by it, the present revision has been preferred. ( 5 ) I have heard Sri Manoj Misra learned counsel for the revisionist and Sri A. K. Gupta, learned counsel for the respondents. ( 6 ) THE first contention in this revision is that the premises in dispute is an old construction and u. P. Act No. 13 of 1972 applies to the same. The learned counsel for the revisionist in support of the argument has referred to the assessment of the Municipal Board Annexure-5 to the affidavit in which in column Nos. 13 and 14, it is mentioned that the assessment has been done from 1st April, 1981. It is contended that this document shows that the shop was first assessed on 1. 10. 1981 and therefore, the suit being filed after ten years on 1. 10. 1981. U. P. Act No. 13 of 1972 applies to the premises. It is further contended that the applicant moved an application before the trial court for summoning the records concerning the construction and assessment of the building in question. The copy of that application is Annexure-9 to the affidavit. 10. 1981. U. P. Act No. 13 of 1972 applies to the premises. It is further contended that the applicant moved an application before the trial court for summoning the records concerning the construction and assessment of the building in question. The copy of that application is Annexure-9 to the affidavit. It is mentioned in this application that the building in question was assessed to house-tax much before the 1. 10. 1981 and Us construction was reported and recorded in the Municipal record much before 1. 10. 1981. That it is necessary to summon those records. His application was wrongly rejected by the trial court. ( 7 ) LEARNED counsel for the revisionist in support of his argument regarding the date of construction has referred to Section 2 of U. P. Act No. 13 of 1972 which provides that the Act shall not apply to a building during the period of ten years from the date on which its construction is completed. The Explanation (1) (a) is regarding the date of completion of the construction, which reads as follows : explanation-1.-- For the purposes of this sections : (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local. authority having jurisdiction and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said date and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purpose of supervising the construction or guarding the building under construction) for the first time. " ( 8 ) IT is contended that Annexure-5 shows that the completion of construction was recorded from 1st April. 1981 and therefore, the building is covered by U. P. Act No. 13 of 1972. It Is also contended that this document was riot considered by the court below, and has also erred in rejecting the application of the revisionist to summon the records of the Municipal Board. ( 9 ) I have considered the arguments of the learned counsel for the revisionist. It appears that in column Nos. 13 and 14 of the assessment Annexure-5 effective from 1st April. 1981 has been mentioned. ( 9 ) I have considered the arguments of the learned counsel for the revisionist. It appears that in column Nos. 13 and 14 of the assessment Annexure-5 effective from 1st April. 1981 has been mentioned. However, these columns are regarding electric connection and the tax. They are not regarding the date of completion of construction or report of completion of construction. The application Annexure-9 for summoning the record is a vague application. It has not been mentioned as to what papers exist in the record of the Municipal Board and whether the revisionist has seen that papers. A vague application was moved to summon the entire records regarding the building in dispute. It was also not supported by the affidavit that the copy of the said document cannot be issued to the applicant. Therefore, that application was rightly rejected and there was no question for summoning the entire records of the Municipal Board of the building in question. The suit was filed in the year 1991 and the application was moved after a long delay on 25. 2. 1999 with the purpose of delaying the disposal of the case. The revisionist could have filed the certified copy. The application was, therefore, rightly rejected. ( 10 ) AS against this, the first assessment of the building in question was filed by the respondents, which shows that the shop was first assessed to the tax on 1. 10. 1981. Therefore, according to the explanation mentioned above for the purposes of this Act, the date of completion of the constructions shall be deemed to be 1. 10. 1981. The suit having been filed within ten years, i. e. on 30. 5. 1991, U. P. Act No. 13 of 1972 does not apply to the premises in suit. Therefore, the court below has rightly held that U. P. Act No. 13 of 1972 does not apply to the premises in suit. There is no reason in interfere in the finding. ( 11 ) NOW coming to the second question, it has been argued that the notice is invalid firstly for the reason that the tenancy was not terminated by the said notice. Copy of the notice dated 5. 1. 1991 has been filed, which is Annexure-4 to the affidavit. There is no reason in interfere in the finding. ( 11 ) NOW coming to the second question, it has been argued that the notice is invalid firstly for the reason that the tenancy was not terminated by the said notice. Copy of the notice dated 5. 1. 1991 has been filed, which is Annexure-4 to the affidavit. In this notice, it is clearly mentioned that the respondents are in need of the premises and that they do not want to keep the revisionist as tenant any more. The tenancy has been terminated on the expiry of thirty days. The revisionist was asked to deliver the possession of the shop in dispute after expiry of thirty days, which shows that the revisionist was permitted to occupy the premises for thirty days and. therefore, the notice is not invalid. ( 12 ) THE last contention of the learned counsel for the revisionist regarding the validity of the notice is that in para 4 of the plaint, it is pleaded by the respondents that the revisionist surrendered a portion measuring 26" wide land towards south and remained tenant of the remaining portion. It is contended that the notice of termination of tenancy is of the entire premises and. therefore, it is invalid. This argument of the learned counsel cannot be accepted. It has not been pleaded in the W. S. that the notice of termination of tenancy is not of the entire premises. It is also not specifically pleaded in the W. S. as to which portion of the premises the notice does not relate or it relates to some portion not in the tenancy of the revisionist. The notice cannot be held to be invalid on this ground. ( 13 ) AFTER considering the entire arguments. I do not find any ground to interfere in the judgment and decree of the court below. The revision is fit to be dismissed. However, it may be mentioned that it has also been argued by the learned counsel for the revisionist that the revisionist is an old tenant of the premises in dispute within a shop and is carrying on his business. ( 14 ) IN view of this, the revision is dismissed. However, the revisionist is allowed three months time to vacate the premises in dispute. .