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2009 DIGILAW 2584 (ALL)

INDERJIT SINGH v. BHAG SINGH

2009-07-16

DEVI PRASAD SINGH

body2009
JUDGMENT DEVI PRASAD SINGH, J.--Heard Smt. Rama Goel, learned Counsel for the revisionist and Sri Manoj Mishra, learned Counsel for the respondents. 2. Respondent No.1 Sri Bhag Singh the father of the respondent No. 1/1 and the husband of respondent No. 1/2 was owner and landlord of premises No. 18/516-B, Kaushalpuri, Kanpur Nagar. The suit for eviction was filed by plaintiff-respondents with the allegation that the defendant/applicant is the tenant of first floor of the premises in suit or monthly rent of Rs. 3,500/- per month. The tenancy started from 20th day of each English Calendar month and ends on 19th day of the next month. It has been stated that since the rate of rent is more than Rs. 2000/- per month, the provision contained in U.P. Act XIII of 1972 (in short Act) held to be not applicable. Admittedly, tenancy was started on 20.3.2000 for a period of 11 months but after lapse of 11 months it alleged that the defendant/petitioner has not vacated the premises and he is in arrears of rent since 20.2.2001. The notices were sent by plaintiffs/respondents and alleged to serve on 26.6.2003 and on 24.5.2003 on residential and official addresses of the defendant/petitioner. After expiry of period of notice, the suit was filed for arrears of rent and damages to the tune of Rs. 98,700/-. However, during the pendency of suit Sri Bhag Singh left for heavenly abode and is represented by plaintiff/respondents. The Trial Court had framed the following issues for determination:- 1. Whether the rate of rent is Rs. 3,500/- per month, as alleged for plaintiff is so, its effect? 2. Whether the notice was legally served upon the defendant? 3. Whether the defendant is a defaulter? 4. To what relief, if any, are the plaintiff entitled? 3. The Trial Court while deciding the Issue No.1 had recorded the finding that the plaintiff/respondents are claiming rent of Rs. 3,500/- per month, and also observed thal the defendant has not denied that the rent of Rs. 3,500/- alleged to agreed by the parties. 4. The learned Counsel for the revisionist invited attention to Para 2 of the plaintiff which indicates that the plaintiff/respondents had claimed that the monthly rent agreed between the parties was Rs. 3,500/- per month. 3,500/- per month, and also observed thal the defendant has not denied that the rent of Rs. 3,500/- alleged to agreed by the parties. 4. The learned Counsel for the revisionist invited attention to Para 2 of the plaintiff which indicates that the plaintiff/respondents had claimed that the monthly rent agreed between the parties was Rs. 3,500/- per month. However, while giving reply to Para 2 of the plaint, it has been stated in written statement that the rent of premises in question was Rs. 1,500/- per month. The claim of the rent at the rate of Rs. 3,500/- has been asserted to false by the defendant/petitioner. Even the closed scrutiny of finding recorded by Trial Court does not reveal that under what circumstances the finding has been recorded for rent of premises in question is Rs. 3,500/- per month. The reliance placed by defendant/petitioner on the assessment register of Nagar Mahapalika, Kanpur has not been considered by the Trial Court. The assessment Register of Nagar Mahapalika, Kanpur does not contained an entry with regard to rent of Rs. 3,500/- per month. Thus, it appears that the Trial Court while recording the finding with regard to the payment of rent at the rate of Rs. 3,500/- per month seems to based on no material. So far as, the issue No.1 decided by Trial Court seems to based on no evidence or the Trial Court had been failed to consider the evidence on record as stated by learned Counsel for the respondents. It is clear that the finding of fact recorded by Trial Court with regard to payment of rent of Rs. 3,500/- per month seems to be not sustainable. So far as services of notice is concerned there appears to be no dispute that notice issued on the defendant/petitioner was duly served. The defendant/petitioner has deposited rent at the rate of Rs. 1,500/- per month in Trial Court. 5. In view of the above, the impugned order passed by Court below seems to be unsustainable. Application deserved to be allowed. 6. Accordingly the revision is allowed. The order dated 22.9.2007 is set aside. The controversy remanded to Trial Court to decide the suit afresh. While deciding the controversy the Trial Court shall decide the issue afresh without influence by the observation made in the present order, expeditiously and preferably within four months from the date of receipt of certified copy. 6. Accordingly the revision is allowed. The order dated 22.9.2007 is set aside. The controversy remanded to Trial Court to decide the suit afresh. While deciding the controversy the Trial Court shall decide the issue afresh without influence by the observation made in the present order, expeditiously and preferably within four months from the date of receipt of certified copy. The petitioner shall ensure the payment of rent at the rate of Rs. 1,500/- per month during the pendency of controversy before the Court below, which shall be subject to outcome of suit. Civil Revision Allowed.