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2010 DIGILAW 2569 (ALL)

Harish Kumar Bharti v. Ankur Agarwal

2010-08-23

PRAKASH KRISHNA

body2010
JUDGMENT Hon'ble Prakash Krishna,J. - The present revision has been filed under section 25 of the Provincial Small Cause Courts Act against the judgment dated 9.7.2010 passed in SCC Suit No.266. The said suit was filed by the plaintiff opposite parties herein for recovery of arrears of rent ejectment against the present applicant on the pleas inter alia that the defendant-applicant took the shop in question on monthly rent of Rs.570/- and he is in arrears of rent from 1.1.2002. His tenancy has been determined by the notice dated 24.1.1996. The provisions of U.P Act No. 13 of 1972 are not applicable as the shop in question is a new construction which was got constructed after getting the map sanctioned on 11.1.1996 by the Development Authority at Bulandshahar. 2. The defendant-tenant failed to deposit the rent/damages as required under 15 Rule 5 CPC and therefore his defence was struck off and that order has attained finality. Thereafter the suit has been decreed by the order under revision. 3. The learned counsel for the applicant submits only one point in support of the revision. He submits that the finding recorded by the trial Court on the question of date of construction of the shop in question is incorrect and provisions of U.P Act No.13 of 1972 are applicable. Reliance has been placed upon a judgment of this Court in the case of Anil Kumar Sharma versus Smt.Meena Gangal and another 2002 (2) ARC 413. 4. Considered the above submission of the learned counsel for the applicant. It is not in dispute that the plaintiffs constructed the shop in question after getting the map sanctioned on 11.1.1996. The suit was instituted on 1.9.2006. 5. The evidence led by the plaintiffs to prove that that the shop in question is a "new construction" has been believed by the trial court. In rebuttal the tenant has not filed any evidence oral or documentary nor any document by way of municipal record etc. to show that the shop in dispute was an old construction. The decision relied upon by him is not applicable to the facts of the present case. Therefore, no fault can be find out in the finding of the trial court. 6. to show that the shop in dispute was an old construction. The decision relied upon by him is not applicable to the facts of the present case. Therefore, no fault can be find out in the finding of the trial court. 6. Even otherwise also the above argument is of academic interest in the present case, as it has been found that the defendant tenant has committed default in payment of arrears of rent for more than four months and as such a statutory ground for eviction under section 20 (1) (a) of U.P Act No. 13 of 1972 has been made out. 7. No other point was pressed. I find no merit in the revision. The revision is dismissed summarily. 8. The applicant is granted time to vacate the disputed shop on or before 31.12.2010 subject to the following conditions: (1) He is required to deposit the entire decreetal amount along with the damages for the period up to December 2010 within a period of one month from today before the trial Court, after adjusting the amount if any already deposited; and (2)The applicant shall file an undertaking on affidavit before the trial Court that he will vacate the disputed accommodation on or before 31.12.2010 and shall hand over its peaceful vacant possession to the plaintiffs. (3) In case of non compliance of the either of the conditions as stipulated above, the time granted by this Court shall stand vacated. If the applicant fails to vacate the disputed accommodation within the period as stipulated above, he shall be liable to pay the damages for the period January 2011 onwards @ 5000/- per month till the date of actual delivery of possession. Revision Dismissed.