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2009 DIGILAW 3422 (ALL)

Prem Chand v. VII Addl. District Judge, Aligarh

2009-11-05

SHISHIR KUMAR

body2009
JUDGMENT Hon'ble Shishir Kumar, J. Heard Sri Avinash Swaroop, learned counsel for petitioner and Sri Pankaj Agarwal, Advocate holding brief of Sri M. K. Gupta, learned counsel for respondents. 2. This writ petition has been filed for quashing the order dated 23.2.1994 by which revision filed by respondent-landlord has been allowed. 3. The facts arising out of writ petition are that landlord filed a suit on 16.1.1989 for ejectment against petitioner before Judge, Small Causes Court, which was registered as Suit No.5 of 1989. The respondent-landlord's case was in the plaint that said building was constructed in the year 1979, therefore, Act No.13 of 1972 is not applicable. Various evidences were placed before the Court by the plaintiff. The Judge, Small Causes Court after considering the claim of parties and on the basis of pleading a finding has been recorded that construction of the building is in the year 1979. However, dismissing the suit on the ground that as ten years have been completed, therefore, Section 2 Sub Clause 2 of the Act No.13 of 1972 became applicable and there is no ground for ejectment under Section 20 of the Act. Hence, the suit is dismissed. Respondent-landlord aggrieved by order passed by Judge, Small Cause Court filed a revision assailing the fact that Act No.13 of 1972 is not applicable in view of relevant records, therefore, finding recorded by Judge, Small Causes Court should be set aside and revision be allowed. The Revisional Court vide its order dated 23.3.1994 allowed the revision and decreed the suit. 4. Sri Avinash Swaroop, learned counsel appearing for petitioner submits that finding recorded by Revisional Court regarding date of construction is not correct because from various records, it was proved that prior to 1979, building in question was in existence and as respondent has constructed the shop in question prior to 1978, and computation was made, therefore, the Revisional Court has clearly ignored various documents filed thereon. Various documents have been filed by petitioner with supplementary affidavit before this Court. He has placed reliance upon a judgement of the Apex Court reported in (2001) 5 Supreme Court Cases, 705, Deena Nath Vs. Pooran Lal. Placing reliance upon aforesaid judgement learned counsel for petitioner submits that if in recording a finding the court does not bear in mind the statutory mandate, such finding would not be a mere finding of fact. He has placed reliance upon a judgement of the Apex Court reported in (2001) 5 Supreme Court Cases, 705, Deena Nath Vs. Pooran Lal. Placing reliance upon aforesaid judgement learned counsel for petitioner submits that if in recording a finding the court does not bear in mind the statutory mandate, such finding would not be a mere finding of fact. Such erroneous finding illegally arrived at, would be vitiated the entire judgement. Further, it has been submitted that finding to this effect that date of assessment is 1979, is based on no evidence. 5. On the other hand, Sri Manoj Kumar Gupta, learned counsel for respondents submits that Judge, Small Causes Court has recorded a finding that date of assessment of building in question is 1979, and this finding has never been challenged by petitioner in revision and that has become final, therefore, it is not open to petitioner to submit before this Court regarding the finding which has become final relating to date of construction by the Judge, Small Causes Court. Further it has been submitted that the document filed with the supplementary affidavit was never a part of the record before the court below, therefore, that cannot be taken into consideration. The second argument raised by learned counsel for petitioner is that as regards the exemption of building from the purview of Act No.13 of 1972 is concerned, Revisional Court has considered that in view of settled principle, in case, when the suit was filed and during pendency of suit, ten years is completed, then the said building will be treated to be exempted from Act No.13 of 1972. The judgement of the Apex Court reported in Supreme Court & Full Bench Rent Cases 1994, Page 63 Bhola Nath Varshney (since dead ) through its L.R's Vs. Mulk Raj Madan. He has placed reliance upon paras 6 and 13 of the said judgement. The same is being quoted below:- "6. In view of the undisputed fact that the building was constructed in the year 1974 the basic question which requires an answer in this appeal is whether the building, which was not ten years' old on the date of the suit and was exempted from the operation of the Act, can be governed by it if ten years elapsed during the pendency of the litigation. To answer this question, in the light of the findings recorded by the learned Courts below, it will be appropriate at this stage to refer to the relevant provisions of the Act. Section 2(2) of the Act, to the extent it is germane for our present purpose, reads as under:- "(2) Except as provided in sub-section (5) of Section 12, sub-section (I-A) of S. 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed." 13. Lastly, we may refer to the case of Ramesh Chandra v. III Additional District Judge, (1992) 1 SCC 751 : (1992 AIR SCW 991). In this case also the judgment was delivered by a Division Bench of this Court consisting of three Judges. In negativing a. similar contention raised on behalf of the tenant relying upon the case of Vineet Kumar (supra) the Court observed: "Yet another contention urged by the learned counsel for the tenant on the strength of Vineet Kumar (supra) is that inasmuch as the statutory period of ten years expired during the pendency of the suit, the Act became applicable and the suit must be disposed of only in accordance with the. provisions of the Act and in particular sub-sec. (2) of S. 20. This decision has, however, been explained in a subsequent decision in Nand Kishore Marwah (supra) wherein it has been held that the law applicable on the date of 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. It was held that the suit has to be tried and decided without reference to the Act. We are in respectful agreement with the view expressed in Nand Kishore Marwah (supra)." In view of the law as now laid down by this Court it must be held that the Act has no application to the facts of the instant case, It was however contended by the learned counsel for the tenant that even if the Act did not apply to the suit premises section 39 did. This contention cannot also be accepted having regard to the following observations made in the case of Om Prakash Gupta (supra) "Further, in order to attract Section 39 the suit must be pending on the date of commencement of the Act which is July 15, 1972 but the suit giving rise to the present appeal was filed on March 23, 1974 long after the commencement of the Act. There is yet another reason why S. 39 will have no application to the present case. In view of sub-sec on (2) of S. 2 of the Act the Act is not applicable to a building which has not a standing of 10 years and if the Act itself was not applicable, it would be absurd to say that S. 39 thereof would be applicable." 6. Taking support of aforesaid judgement, learned counsel for respondent submits that view taken by Judge, Small Causes Court was erroneous in view of judgement of the Apex Court, therefore, Revisional Court taking into consideration the aforesaid judgement has held that if during pendency of case, the building in question completes ten years of construction, then it cannot be presumed that Act No.13 of 1972 will be applicable. The same view has been taken in Om Prakash Vs. Mahabir Prasad reported in ARC Allahabad Rent Cases 1991, Page 40. 7. After hearing learned counsel for parties and after perusal of record, from the record it is clear that as regards the date of construction it is well settled that date of assessment will be treated as date of construction. From the record, it was proved that prior to March 1979, building in question was not assessed or there was no record before the municipal board to say or to prove that building was assessed prior to that date. Further, this fact has not been denied by petitioner that document filed with supplementary affidavit was ever filed before the courts below. As regards the finding recorded regarding applicability of the Act by the Judge, Small Causes Court, in my opinion, in view of Supreme Court judgement as well as judgement of this Court, the Act was not applicable. In such situation, the judgement and order passed by Revisional Court is perfectly correct based on evidence, needs no interference by this Court under Article 226 of the Constitution of India. 8. In such situation, the judgement and order passed by Revisional Court is perfectly correct based on evidence, needs no interference by this Court under Article 226 of the Constitution of India. 8. The writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost. 9. At the last, learned counsel appearing for petitioner submits that some reasonable time may be granted to vacate the said premises. It is provided that, in case, petitioner moves an application within three weeks supported by an affidavit in the shape of undertaking before the court below specifically mentioned therein that immediately after expiry of period of six months from today, he will vacate the said premises and will handover peaceful possession to respondent-landlord without inducting any third person, then in that case, court below after due satisfaction will grant six months time from today. It is also made clear that petitioner-tenant will pay the rent of six months from today to respondent-landlord before vacation of the said premises.