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2011 DIGILAW 2001 (ALL)

Ulfat Rai v. Devendra Kumar

2011-08-25

SHASHI KANT GUPTA

body2011
Shashi Kant Gupta, J.;- 1. This writ petition is directed against the concurrent judgments and orders dated 15.07.2011 and 04.08.2009 passed by the Additional District Judge, Court No. 1, Muzaffar Nagar in S.C.C. Revision No. 10 of 2009 and the Civil Judge, Sr. Division/J.S.C.C., Kairana, Muzaffar Nagar respectively whereby the S.C.C. Suit No. 05 of 2005 filed by the respondent-landlord has been decreed. 2. A Suit for arrears of rent and ejectment was filed on 22.02.2005 by the respondent-landlord, which was registered as S.C.C. Suit No. 05 of 2005. After the exchange of pleadings, leading of evidence and cross-examination of witnesses, the said suit was decreed by order dated 04.08.2009 against the petitioner-tenant, holding that the U.P. Act No. 13 of 1972 (in short the Act) is not applicable in the matter and further held that the petitioner-tenant committed default in payment of rent and is not entitled to get any benefit under Section 114 of the Transfer of Property Act, 1882 ( in short 'T.P. Act') and is liable to be evicted. 3. Feeling aggrieved and dissatisfied with the said order, the petitioner-tenant filed a Revision, which was registered as S.C.C. Revision No. 10 of 2009 and the same was dismissed by the Court below vide order dated 15.07.2011. Hence the present writ petition. 4. Learned counsel for the petitioner-tenant has submitted that the petitioner has not committed any default in payment of rent and the Act is applicable to the premises in dispute and the Courts below have erred in not giving the benefit of Section 114 of the T.P. Act. 5. Heard learned counsel for the parties and perused the record. 6. The court below has recorded a categorical finding of fact that the disputed premises was subject to assessment, and the first assessment of the disputed premises came into effect in 1991, and in view of Explanation 1 of Section 2(2) of the Act, the premises shall be deemed to be constructed in 1991. The finding of the fact is based on appraisal of evidence produced in the case and does not suffers from any error of law. Thus the Courts below were fully justified in holding that the Act is not applicable to the premises in dispute. 7. The finding of the fact is based on appraisal of evidence produced in the case and does not suffers from any error of law. Thus the Courts below were fully justified in holding that the Act is not applicable to the premises in dispute. 7. The second contention urged on behalf of the learned counsel for the petitioner was that the petitioner was entitled to the benefit under section 114 of the T.P. Act, has no substance and can not be accepted. It is not disputed that no written lease agreement was executed between the parties, so, it can not be said that the lease was determined by way of forfeiture as provided under Section 111(g) of the T.P. Act. That being so, the necessary corollary whereof would be that the Provision in Section 114 of the T.P. Act would also not be applicable. Thus the petitioner can not claim any benefit of Section 114 of the T.P. Act. 8. In this connection, I am fortified in my view by the decision of this Court in the case of Yashpal Lala Shiv Narain vs Allatala Tala Malik Waqf Ajakhan, AIR 2006 All 115 , wherein this Court has held as follows:- 76. Hence, in view of the aforesaid, it follows that for the applicability of Section 111(g), Category (1), and, as such, of Section 114 of the Transfer of Property Act, it is necessary that the lease must be in writing containing the express condition as per the requirements of Section 111(g), Category (1). In case, there is no written lease-deed, the provisions of Section 111(g), Category (1), and, as such, of Section 114 of the Transfer of Property Act will not apply. The provisions of Section 111(g), Category" (1), and consequently, of Section 114 of the Transfer of Property Act are not applicable to oral lease. This view gets support from various judicial decisions. 77. In U.P. State Road Transport Corporation case 1981 All LJ 608 (supra) a learned Single Judge of this Court held as follows: (paragraphs 5 and 6 of the said A.L.J.); 5. Section 114 of the Transfer of Property Act entitles a lessee for relief against forfeiture for non-payment of rent. In the Instant case, there is no agreement of lease between the parties. The lease has not been forfeited for non-payment of rent. Section 114 of the Transfer of Property Act entitles a lessee for relief against forfeiture for non-payment of rent. In the Instant case, there is no agreement of lease between the parties. The lease has not been forfeited for non-payment of rent. In the circumstances, Section 114 of the Transfer of Property Act does not apply." 9. Lastly, the learned counsel has urged that the Courts below have erred in holding that the petitioner has committed default in payment of rent. The contention of the petitioner has no substance, wholly erroneous and fallacious and can not be accepted. I find that the finding of the Court below with regard to default in payment is based on record and does not suffers from any illegality, even otherwise, since the premises is not covered under the Rent Control Act, the question with regard to committing default is wholly irrelevant. 10. Both the courts below have given cogent, convincing and satisfactory reasons while decreeing the suit. The findings recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material and have been recorded on meticulous evaluation of evidence and pleadings available on record. This Court cannot substitute its opinion for the opinion of the court below unless it is found that that the conclusion drawn by the lower courts are erroneous. 11. I do not find any illegality or infirmity in the impugned orders. The learned counsel for the petitioner failed to point out any illegality in the impugned orders. 12. No other point has been pressed by the learned counsel for the petitioner. 13. In the result, the petition is dismissed. No order as to costs. 14. After the judgment was dictated, learned counsel for the petitioner urged that at least four months time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it. 15. 13. In the result, the petition is dismissed. No order as to costs. 14. After the judgment was dictated, learned counsel for the petitioner urged that at least four months time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it. 15. As urged by the learned counsel for the petitioner, four month's time is granted to the petitioner to vacate the premises in dispute provided the petitioner gives his undertaking in the form of an affidavit before the concerned Court within one month from today specifically stating therein that they will handover the peaceful possession of the said accommodation to the landlord opposite party without inducting any third person within a period of four months from today and also deposit the entire decretal amount including the current rent/damages for use and occupation of the disputed premises within a period of one month from today. 16. In the event of default of any of the aforesaid conditions, the landlord opposite party will be at liberty to proceed to evict the petitioner, if necessary by coercive process with the aid of police force.