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2009 DIGILAW 3610 (ALL)

Raj Kumar Gupta v. Saira Bano

2009-11-27

A.P.SAHI

body2009
JUDGMENT Hon'ble A.P. Sahi, J. Heard Shri Atul Dayal, learned counsel for the applicant and Shri Arvind Srivastava, learned counsel for the opposite party. 2. This revision has been filed questioning the correctness of the order of the learned Additional District Judge in a small causes suit whereby the opposite party has sought ejectment of the applicant on the ground of arrears of rent. The allegation made by the opposite party-landlady was that the applicant is a defaulter and therefore the premises in question should be vacated and peaceful possession be handed over to the landlady. 3. Shri Atul Dayal, learned counsel for the applicant has raised two issues. Firstly, that the house in question was an old house and therefore the finding that the U.P. Act No. 13 of 1972 was not applicable, is incorrect. Secondly, even otherwise whether the house could be construed to be a new building was depandant upon a specific finding with regard to the date of first assessment of the new construction which finding is absent and therefore the impugned order is liable to be set aside. 4. Shri Atul Dayal has relied on the following decisions in the cases of Ram Saroop Rai Vs. Smt. Lilawati reported in 1980 Allahabad Rent Cases page 466, Om Prakash Gupta Vs. Digvijendra Pal Gupta reported in 1979 Allahabad Rent Cases page 470 and in the case of Jitendra Prasad Nayak Vs. Anant Kumar Sah and another reported in 1998 Supreme Court & Full Bench Rent Cases page 472 to substantiate his submissions. He contends that the burden had already been discharged by the applicant-tenant by denying the allegations of the new constructions and the landlady has failed to establish the date of first assessment therefore the impugned order is liable to be set aside. 5. Shri Atul Dayal further submits that the reliance placed by the court below on the sanction of the map in the year 1989 and the factum of mutation on 01.12.1990 was totally irrelevant for the purpose of construing the date of construction of the new building. He submits that the court below has committed an error by proceeding to record findings on the strength of evidence which was foreign to the provisions of the Provincial Small Cause Courts Act, 1887. 6. He submits that the court below has committed an error by proceeding to record findings on the strength of evidence which was foreign to the provisions of the Provincial Small Cause Courts Act, 1887. 6. Shri Arvind Srivastava, learned counsel for the opposite party, on the other hand, contends that the arguments of the other side is putting the cart before the horse, inasmuch as, the applicant has failed to dislodge the finding regarding new constructions and that the landlady has discharged her burden by clearly stating that the building had been newly constructed, for which a map was sanctioned in the year 1989. Accordingly, it was submitted on behalf of the opposite party that the applicant having failed to lead any evidence to the contrary, the finding recorded by the court below cannot be said to be perverse. 7. I have heard learned counsel for the parties. 8. From a perusal of the impugned order, it is evident that the building has been constructed newly for which a mutation was also carried out on 01.12.1990 in favour of the opposite party. The landlady had taken a clear plea that the map had been sanctioned. Except for a bald denial in the written statement of the applicant the onus was not discharged by collecting and filing of any other document to the contrary. The applicant could have approached the map sanctioning authority to find out as to whether the contention raised by the landlady is correct or not. 9. Not only this, the argument advanced that the date of first assessment would be relevant, could have been proved by filing of the extract of the assessment of the municipality, which could have been easily obtained by the tenant-applicant. No effort appears to have been made by the tenant to file any document to indicate the first date of assessment. Even otherwise, in case the building was an old building the same could also have been established by the tenant by producing the assessment records after obtaining certified copy thereof from the Municipal Corporation. In the absence of any such rebuttal a bald denial in the written statement that the building was not newly constructed has been rightly disbelieved by the court below. 10. In the absence of any such rebuttal a bald denial in the written statement that the building was not newly constructed has been rightly disbelieved by the court below. 10. In order to construe as to what is the date of first assessment, one will have to resort to the language in explanation one of Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which is quoted below: "Explanation I-[For the purposes of this section], - (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 dates, 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 purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants; (b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition." A perusal of the said explanation will therefore leave no room for doubt that in the absence of any date of recorded assessment the earliest of the dates or the date on which it is actually occupied for the first time would be the relevant date. 11. In the instant case, the applicant has occupied the premises upon a tenancy, which is said to have been created in the year 1996. 12. Accordingly, the argument advanced by Shri Atul Dayal that there has to be a finding with regard to the date of first assessment cannot be countenanced. 11. In the instant case, the applicant has occupied the premises upon a tenancy, which is said to have been created in the year 1996. 12. Accordingly, the argument advanced by Shri Atul Dayal that there has to be a finding with regard to the date of first assessment cannot be countenanced. No material was placed by the tenant to substantiate the said plea or to controvert the inference drawn. 13. The landlady had filed the extract of the municipality to indicate that her name had not been entered between 1978-1987 and that her name came to be recorded on 1st December, 1990. The allegation is that the rent was not paid w.e.f. 1st August, 2005 onwards and in spite of notice the default was continuously committed. The tenancy is admitted since March, 1996. 14. In view of the admitted tenancy and in view of the finding record on the issue of default, there is no occasion for this Court to interfere with the impugned order. 15. Learned counsel for the applicant, as noticed of, had raised only two points as indicated above and in my opinion the said points do not make out any case, which may amount to a material irregularity so as to warrant interference in this revision under Section 25 of the Provincial Small Cause Courts Act. 16. The revision lacks merit and is accordingly dismissed.