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2009 DIGILAW 28 (ALL)

TAHSEEN KHAN v. IDRISH KHAN

2009-01-07

V.K.SHUKLA

body2009
( 1 ) PRESENT JSCC revision has been filed questioning the validity of order dated 27. 11. 2008 passed by Additional District Judge Court No. 8, Moradabad in JSCC suit No. 9 of 2005, decreeing the suit of the plaintiff-respondent for eviction and damages. ( 2 ) BRIEF background of the case is that the revisionists are tenants of the premises in question at the rate of Rs. 2500/- per month. The premises in question is not at all covered by the provisions of U. P. Act No. 13 of 1972, as such notice under Section 106 of the Transfer of Property Act was given on 07. 03. 2007, and when even after expiry of notice period terms and conditions of notice were not complied with, then suit was filed for eviction, arrears of rent and damages. The said suit was contested by the revisionists by contending that the facts mentioned in the notice were unsustainable and the suit in question was not at all liable to be decreed. The Judge Small Cause Court, thereafter, on the basis of the evidence adduced, decreed the suit. At this juncture present revision has been filed. ( 3 ) LEARNED counsel for the revisionists, Sri Mohit Kumar, Advocate, contended with vehemence that in the present case, grounds on which notice was issued had been found to be incorrect and unsustainable, as such the suit could not have been decreed and coupled with this merely on surmises and conjectures damages has been awarded with mesne profit, as such revision is liable to be allowed. ( 4 ) COUNTERING the said arguments, Sri M. K. Sharma, Advocate, contended that in the present case building in question was not at all governed by the provisions of U. P. Act No. 13 of 1972, and in this background notice simplicitor under Section 106 of the Transfer of Property Act was given and only based on the same, suit in question was liable to be decreed and other grounds were of no consequence, and coupled with this, in the present case rightful assessment qua damages has been made, which has not been disputed by the revisionists, on factual front, as such revision is liable to be dismissed. ( 5 ) AFTER respective arguments have been advanced, the first question to be adverted to is as to whether on grounds mentioned in the notice, in case they have not been proved, even then suit could have been decreed after termination of tenancy. In the present case undisputed position is that the building in question was not at all governed by the provisions of U. P. Act No. 13 of 1972, as such net effect of the same was that the tenancy was liable to be terminated by giving one months notice as is envisaged under Section 106 of the Transfer of Property Act by issuing notice. Under Section 106 of the Transfer of Property Act, relevant factor is the factum of determination of tenancy and not the grounds mentioned therein. In this background once tenancy has been terminated by clearly mentioning that the landlord does not further intend to retain the tenants and terminated the tenancy after expiry of the notice period, then grounds mentioned are of no consequence, and after termination of tenancy, tenant has got no right to retain the premises, and the suit in all eventuality is liable to be decreed. In the present case exactly this has been done. Valid notice was given, terminating tenancy and the premises in question being not covered by the provisos of U. P. Act No. 13 of 1972, as such decree has rightly been passed, and there is no infirmity in the decree. ( 6 ) NOW the second question posed in the present case is as to whether damages have been accorded arbitrarily or in the rightful manner. In the present case finding of fact arrived at by Judge Small Cause Court has been perused. Categorical averment was made in the plaint that the premises in question would fetch rent not less than Rs. 10,000/- per month. The shop in question is situated in main market on the main road and this fact has been taken note of that in the year 1994 rent of the premises was Rs. 2500/- and with the passage of time rent has enhanced manifold. From the side of revisionists no serious dispute has been raised, and taking into over all factual scenario damages have been awarded at the rate of Rs. 300/- per month from the date of filing of suit. 2500/- and with the passage of time rent has enhanced manifold. From the side of revisionists no serious dispute has been raised, and taking into over all factual scenario damages have been awarded at the rate of Rs. 300/- per month from the date of filing of suit. Once keeping into account the factual aspect of the matter finding of fact has been returned, awarding damages and qua which there is no serious dispute raised, in this background, said finding cannot be said to be arbitrary, unreasonable or perverse, warranting interference in exercise of authority vested under Section 25 of Provincial Small Causes Court Act. ( 7 ) CONSEQUENTLY, present civil Revision is dismissed. The revisionists are accorded three months time to vacate the premises in question and hand over its peaceful vacant possession to the respondent-landlady, subject to the condition that within one month from today affidavit shall be filed by the petitioner before the Additional District Judge, Court No. 8, Moradabad, that premises in question will be vacated on or before expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today, the interim protection shall cease to operate, and landlord would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of the revisionists. ( 8 ) AT last it has been contended that parties to the dispute are members of same family, and there is likelihood of compromise. It is made clear that dismissal of this Revision, will not come in the way of the parties to make fresh arrangement, if any,but as far as these proceedings are concerned, they are final. No order as to costs. .