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2010 DIGILAW 2035 (ALL)

Mohammad Hasan v. Abdur Rasheed

2010-07-13

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Devendra Pratap Singh,J. -Heard learned counsel for the parties. 2. This petition by the tenant is directed against a revisional order dated 18.11.2008 by which the suit for eviction filed by the respondent-landlord has been decreed. The respondent-landlord instituted SCC Suit no. 1 of 2004 for recovery of arrears of rent and damages and ejectment of the petitioner from the disputed shop wherein he was alleged to be a tenant at the rate of Rs.150/- per month and had failed to pay rent from September, 2003 despite notice of demand dated 28.1.2004. It was further alleged that the disputed shop was a new construction and therefore the provision of U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) was not applicable. 3. The petitioner-tenant contested the suit stating iner-alia with the allegation that though rent was paid upto the month of September, 2003 but the plaintiff had not given receipt and he was never served with the notice. It was further stated that the petitioner was a tenant of an old shop from which the respondent-landlord tried to forcibly evict the petitioner and therefore he filed original suit no. 1376 of 2000 for injunction against the landlord to restrain him from evicting the petitioner from the disputed premises except in accordance to law. The said suit was decided in terms of a compromise with contemplation that the landlord would construct a new shop after demolishing the old one and let it out to the petitioner and therefore the Act was applicable. 4. After the parties led their evidence, the trial court held that the Act was applicable and there was no default and therefore dismissed the suit. 5. The revisional court after finding that the constructions were new and since there was default in payment of rent, set aside the order of the trial court and decreed the suit for eviction and arrears of rent. 6. The only argument urged on behalf of the petitioner is that the Act was applicable since the new shop was constructed on the same place where the old shop existed. 7. It is noteworthy that the shop was not released under section 21 (1) (b) of the Act as no release application was filed and as such the option of re-entry under section 24 of the Act was not available. 7. It is noteworthy that the shop was not released under section 21 (1) (b) of the Act as no release application was filed and as such the option of re-entry under section 24 of the Act was not available. In a regular suit, the parties entered into a compromise on the basis of which the petitioner vacated the shop and after new construction he was re-inducted as a fresh tenant. Both the parties admit that the new shop was constructed in 2001 and the suit was filed in 2004 and therefore the Act did not apply. The revisional court has rightly held that even otherwise the new shop was not constructed at the same place where the old shop earlier stood and after relying upon explanation I (a), (b) and (c) of section 2 (2) of the Act held that it was a new building where the Act was inapplicable. The counsel for the petitioner has laid great stress on the compromise to say that the old tenancy continued after reconstruction but there is not even a whisper in the compromise between the parties. There is also no evidence that the old shop was continued to be in his tenancy and the petitioner continued to pay the rent for the period that he was ousted from the old shop. Even under the Act, after reconstruction, the premises has to be allotted by the District Magistrate on a rent fixed by him and till the old tenant continues to occupy it, the Act would apply but after its vacation, the Act would only apply subject to section 2 (2) of the Act. 8. It is then urged that at best the courts below could have remanded the matter and should not have decreed the suit. 9. This aspect was examined by the revisional court and after relying upon a decision of the Apex Court and this Court, it went on to hold that the applicability of the Act was mixed question of law and therefore, once it was found that the Act was not applicable and it was a valid notice as held by the trial court, there was no option but to decree the suit. This finding has not been shown to be illegal. 10. No other point has been urged. 11. This finding has not been shown to be illegal. 10. No other point has been urged. 11. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.