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2010 DIGILAW 1433 (ALL)

Akhilesh Jaiswal v. Madan Lal

2010-04-30

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard Sri Ravi Kiran Jain, learned Senior Advocate assisted by Sri Ankur Sharma for the petitioner and Sri M.K. Gupta for the respondent-landlord. 2. This petition by the tenant is directed against concurrent judgments dated 24.5.2000 and 7.3.2009 by which a suit for eviction and arrears of rent filed by the respondent-landlord has been decreed by both the courts below. 3. The respondent-landlord preferred a S.C.C. suit no. 115 of 1995 against the petitioner-tenant inter-alia on the allegation that he was a tenant of the disputed shop at a monthly rent of Rs.450/- but he changed the usage and was in arrears of rent from 1.4.1990 and despite notice dated 19.4.1994 and 29.4.1994, neither he paid the rent together with damages etc. nor vacated the premises, forcing him to file the said suit for eviction and arrears of rent with the allegation that the U.P. Act no. XIII of 1972 (here-in-after referred to as the Act) was not applicable and his tenancy stood determined and therefore he should be evicted and pay the arrears of rent. 4. The petitioner tenant filed his written statement denying any default and stating that the rent was Rs.250/- per month and not Rs.450/- per month and though he offered the rent but the same was not accepted and further that the Act was applicable to the tenancy and notice was never served upon him. 5. The parties led their respective evidence when the trial court framed five issues for determination including an issue with regard to applicability of the Act and the default and on both these issues, it found in favour of the landlord and decreed the suit. The revisional Court upheld the decision of the trial court. 6. It is urged that there was no pleading on behalf of the plaintiff that the Act was not applicable and therefore this aspect could not have been examined by both the courts below and further it is urged that the burden to prove that the Act did not apply was wrongly placed upon the petitioner. In support he has relied upon Ram Swarup Rai Vs. Smt. Leelawati [1980 ARC 466] and Vijay Shanker Vs. Luxmi Narain and another [1996 ARC 497]. 7. In support he has relied upon Ram Swarup Rai Vs. Smt. Leelawati [1980 ARC 466] and Vijay Shanker Vs. Luxmi Narain and another [1996 ARC 497]. 7. So far as the ratio laid down in the two cited cases are concerned, no exception can be taken, but the question is whether they would apply in the present set of facts. It will presently be seen that the decision does not apply to the present case. It is evident from the record that no specific and clear averment was made in the original plaint with regard to applicability of the Act but the petitioner vide an amendment application dated 26.9.1995 amended his written statement for introducing of a new paragraph alleging that in the year 1987-88 when the shop was let out to him, the Rent Control Act was applicable and since there was no allotment order under the Act, the contract of tenancy was void and the suit was liable to be dismissed on this ground alone. The said application of the tenant-tenant was allowed by the trial court granting time to the respondent-landlord to file replica in terms of the amended written statement. In pursuance thereof, the landlord filed his replica making categorical assertions therein that the shop was constructed in September, 1985 and for the illegal construction, the Cantonment Board had also issued notice to him. The courts below after considering the record has rendered a finding of fact that the constructions were made after 1985 and thereafter it was let out to the petitioner in 1987, thus under the Act the building was exempt from its operation. Once there was overwhelming evidence to show that it was a new construction, the burden of disproving would naturally shift on the petitioner to disprove it, which he failed. On these facts, it cannot be said that burden was exclusively placed upon the petitioner. 8. It needs no reiteration that proceedings under the Small Cause Court Act are summary in nature where strict principles of pleadings do not apply. However, in the present case, there was specific assertion on behalf of the landlord in his replica filed in objection to the amended written statement, which is also a part of pleadings. 8. It needs no reiteration that proceedings under the Small Cause Court Act are summary in nature where strict principles of pleadings do not apply. However, in the present case, there was specific assertion on behalf of the landlord in his replica filed in objection to the amended written statement, which is also a part of pleadings. In fact, both the parties led their evidence on the issue and it cannot be said that any of them was taken by surprise and therefore the argument cannot be accepted. However, assuming the Act did apply, but both the courts below have also recorded categorical findings of fact that on the date of the notice, the petitioner was in arrears of more than four months and in fact, he did not deposit the rent at Rs.450/- per month, therefore, even otherwise, the petitioner was not entitled to the benefit of section 20 (4) of the Act. 9. Lastly, it is urged that the courts below did not decide the validity of the notice. 10. Learned counsel for the respondent has taken the Court through the written statement and the other evidence on record to contend that the petitioner at no point of time had raised any objection so far as the validity of the notice is concerned and he only raised an issue that the notice was never served on him and which point has been decided in favour of the landlord supported by cogent evidence. In proceedings under the Provincial Small Causes Court Act, which are summary in nature, there is no requirement to frame issues as is done in a regular suit but yet the court is obliged to frame points for determination where parties are at variance. The record shows that at no point of time, the validity of the notice was ever questioned by the petitioner and therefore there was no occasion for the court to have determined this point and render any finding. Even in the pleadings before this Court no illegality in the notice has been pointed out. 11. No other point has been urged. 12. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.