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2010 DIGILAW 1214 (ALL)

Habib v. 4th A. D. J. , Banda

2010-04-15

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. At the time of argument the counsel for the respondent sought to file a supplementary? counter affidavit stating that the finding that the Act was not applicable, was incorrect. It is apparent that this writ petition was filed in 1998, counter was filed in 2001 and the rejoinder affidavit was also filed. Coupled with the fact that the petitioner had never challenged the said finding, the Court is not inclined to accept the affidavit after lapse of twelve years and prolong the pendency further.. 2. This petition is directed against a revisional order dated 13.7.1998 by which the suit for eviction and recovery of arrears of rent has been dismissed and the decree of the trial court has been reversed. 3. The petitioner landlord instituted a SCC Suit No. 5 of 1995 with the allegation that the petitioner was a tenant in the disputed accommodation at the rate of Rs. 300/- per month but he fell in arrears since 1.11.1993 and despite notice dated 6.3.1995 neither he paid the arrears of rent nor vacated the premises. It was also pleaded that since it was a new construction, U.P. Act No. 13 of 1972 did not apply.? 4. After contest the suit was decreed vide order and judgment dated 23.12.1997 with the finding that the U.P. Act No. 13 was not applicable and the entire arrears of rent had not been paid. In revision the revisional court upheld the finding so far as the applicability of the Act is concerned but it held that the notice terminating the vacancy was invalid as it did not determine the tenancy. 5. Learned counsel for the petitioner has urged that the notice was a composite notice under Section 106 of the Transfer of Property Act whereby the arrears of rent were demanded to be paid within 30 days and the tenancy was terminated and the revisional court has recorded a perverse finding to the contrary. 6. A copy of the notice is annexed with Annexure-1 to the writ petition and its perusal shows that it is in two parts. In the first part the notice demands payment of arrears of rent from November, 1993 within 30 days and by the second part the notice determines the tenancy of the petitioner and directs him to vacate the premises within 30 days. In the first part the notice demands payment of arrears of rent from November, 1993 within 30 days and by the second part the notice determines the tenancy of the petitioner and directs him to vacate the premises within 30 days. However, learned counsel for the respondent has referred to subsequent allegations in the notice which shows that if the rent is paid to the landlord he would have no cause of action. If the entire notice is read, it is apparent that so far as the arrears of rent is concerned, the landlord has stated that he would have no cause of action to file suit for the arrears but so far as the determination of the tenancy is concerned the notice is unequivocal and it determines the tenancy. Therefore, the argument is bound to be accepted. 7. For the reasons above, this petition succeeds and is allowed and the impugned revisional order dated 13.7.1998 is hereby quashed and that of the trial court is restored. 8. In the circumstances of the case, no order as to costs.