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2010 DIGILAW 2208 (ALL)

Trilok Chand v. Riyaz Fatma

2010-07-27

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Devendra Pratap Singh, J. -Heard learned counsel for the parties and perused the record. This petition by the tenant is directed against concurrent orders dated 27.10.2005 and 29.8.2009 by which both the courts below have decreed the eviction suit filed by the respondent-landlord on the ground of arrears of rent etc. 2. It appears that the respondent-landlady instituted a SCC Suit no. 14 of 1996 against the petitioner-tenant for recovery of arrears of rent and damages for eviction from the shop in dispute mainly on the ground that the provisions of U.P. Act NO. XIII of 1972 (here-in-after referred to as the act) do not apply and that the tenant has sublet the disputed shop to one Raghubir Singh and Raju and has not paid the rent from 1.1.1991 together with house rent etc. and despite a notice determining the tenancy by registered post, neither the shop was vacated nor arrears of rent were paid. 3. The petitioner-tenant contested the suit inter-alia on the ground that the Act applies to the disputed shop and since the husband of the landlady refused to accept the rent, he had deposited it in proceedings under section 30 of the Act and there was no default and the rent has been paid. Subletting was also denied. 4. After the parties led their evidence, the Judge, Small Cause Court vide order dated 22.7.1997 held that the Act was applicable and the tenant was not a defaulter but it went on to hold that the tenant was an unauthorized occupant without an order of allotment and therefore partly decreed the suit for recovery of rent but refused eviction. In the resultant revision, the entire suit itself was dismissed vide order dated 16.9.1998. The landlady challenged the said two decision in writ petition no.40881 of 1998 and a learned Single Judge of this Court allowed the writ petition vide order dated 25.2.2005 holding that both the courts below have erred in not considering the applicability of the Act in accordance to section 2(2) of the Act and accordingly, it remanded the matter to be decided afresh to the trial court in accordance with observation made therein. 5. 5. After remand, both the courts below, taking into account the assessment order of the disputed shop and other evidence on record, found that the Act was not applicable as it was assessed to tax for the first time with effect from 1.4.1991. Further, after recording a finding that the petitioner had defaulted in payment of rent, it has decreed the suit. 6. It is urged that both the courts below have failed to address themselves to the main question as on which date the disputed shop came within the limit of the local authority and actual date of construction and as no actual date of construction has been proved and therefore the judgements are vitiated. In support thereof, he has relied upon a decision of this Court rendered in the case of Ram Sanehi Vs. 3rd Additional District Judge and others. 7. No doubt, in Ram Sanehi's case it was held that where a building had already been constructed but subsequently came within the limit of the local authority, section 2 (2) of the Act may not apply. However, in the present case, the facts are entirely different. The petitioner had taken up a consistent stand that the constructions were made in 1950 when his father was inducted as a tenant but no worthwhile evidence was led to prove it. To the contrary, the landlord led evidence to prove that the constructions were started in 1986 and completed in 1990 and the first assessment was made with effect from 1.4.1991. These findings of fact are based on evidence and have not been shown to be perverse. Therefore, in the opinion of the court, there was no occasion for the courts to have dealt upon the aforesaid question in the teeth of the evidence on record. 8. It is then urged that the assessment order produced was for a different shop and the petitioner was not shown to be a tenant therein. 9. It is worthwhile that upon the application of the petitioner, the official of the local authority was summoned along with records with regard to the disputed shop and he appeared and proved that the shop was constructed within the limit of the local authority and was assessed to tax for the first time with effect from 1.4.1991. 9. It is worthwhile that upon the application of the petitioner, the official of the local authority was summoned along with records with regard to the disputed shop and he appeared and proved that the shop was constructed within the limit of the local authority and was assessed to tax for the first time with effect from 1.4.1991. the courts below have found that the petitioner did not claim the tenancy of any other shop but the disputed shop whose record was produced by the DW2. Further, it is apparent from the record that the specific case of the respondent-landlord was that he had inducted Raghubir Singh and Raju as subtenant whose possession is shown in shop no. 4 in the list. Thus, the argument cannot be accepted. 10. Lastly it is urged that the plaintiff did not appear in the witness box to prove default and therefore the suit could not have been decreed. He has relied upon a decision of the Apex Court rendered in the case of Janki Vasudeo Bhojwani Vs. Industrial Bank. So far as the ratio laid-down in Bhojwani's case is concerned, they would not apply to this case as the facts therein were entirely different. The courts below have found that it was the petitioner's case himself that the rent was being realized on behalf of the plaintiff by her husband who entered the witness box and proved the default. Therefore, mere non-examination of the plaintiff, on the facts of this case, was not fatal. Thus, this argument also cannot be accepted. 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. 13. After the order had been dictated but before it could be signed, learned counsel for the petitioner, upon instructions of his client, has given an undertaking which is also supported by an affidavit, that if a reasonable time is given, he would handover peaceful vacant possession to the respondent-landlord. Accordingly, the petitioner shall hand over the vacant possession of the disputed premises to the respondent-landlord without creating any third party rights on or before 25.10.2010. He will also pay the entire rent uptil that date to the respondent-landlord within a period of four weeks from today. The amount already deposited would be adjusted. Accordingly, the petitioner shall hand over the vacant possession of the disputed premises to the respondent-landlord without creating any third party rights on or before 25.10.2010. He will also pay the entire rent uptil that date to the respondent-landlord within a period of four weeks from today. The amount already deposited would be adjusted. In case of default in payment of rent, the petitioner shall be liable for eviction forthwith.