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Allahabad High Court · body

2011 DIGILAW 2726 (ALL)

Kishan Shivhare v. Mohd. Kamil and others

2011-12-01

DILIP GUPTA

body2011
Hon'ble Dilip Gupta,J.:- The tenant has filed this petition for quashing of the judgment dated 30th October, 2009 of the Judge, Court of Small Causes, Agra in SCC Suit No.82 of 2005 filed by the landlord for eviction of the tenant on the ground that the tenant was in arrears of rent and had also sublet the premises. The petitioner has also sought the quashing of the judgment dated 12th July, 2011 passed by the Additional District Judge, Agra by which the Revision No.52 of 2009 filed by the tenant has been dismissed. The case set up by the landlord was that the tenant was in arrears of rent and a notice was sent to him by registered post for termination of the tenancy on which remark was made by the Postman that he was informed that the addressee had left the shop and had given possession of the shop to some other person. It is after the aforesaid remark of the Postman, that the suit was filed by the landlord for eviction of the tenant with the allegation that not only had the tenant committed default in payment of rent but he had also sublet the shop. The Court of Small Causes has allowed the suit filed by the landlord on the ground of subletting though it has given the benefit of Section 20(4) of the Uttar Pradesh Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') to the tenant. In coming to this conclusion the Court of Small Causes considered various factors including the fact that no document was filed by the tenant to show that he was actually doing the business of Moon Cable Network from the shop though it was stated by the tenant in his examination that documents had been executed for running of the Moon Cable Network. This finding has also been confirmed by the Revisional Court. Learned counsel for the petitioner has stated that though documents were available with the tenant but they were not filed for the reason that the tenant was not advised to file them. This finding has also been confirmed by the Revisional Court. Learned counsel for the petitioner has stated that though documents were available with the tenant but they were not filed for the reason that the tenant was not advised to file them. Once the landlord had come out with a specific case of subletting in view of the remark made by the Postman, the burden shifted to the tenant to file evidence to show that he was actually carrying on the business of Cable Network from this shop and the shop had not been sublet. The tenant, in his oral statement, had stated that documents had been executed regarding the running of the Moon Cable Network but no document was actually filed to show that the tenant was doing the business of Cable Network from the shop in dispute though he was earlier doing liquour business from the shop. In such circumstances, the finding recorded by the Court of Small Causes as well as the Revisional Court cannot be said to be perverse so as to call for for any interference under Article 226 of the Constitution. The writ petition is, therefore, liable to be dismissed. At this stage, learned counsel for the petitioner submitted that some time may be given to the tenant to vacate the premises in dispute. Learned counsel for the landlord has stated that the landlord has no objection to some reasonable time being granted. The tenant is, accordingly, granted time upto 28th February, 2012 to handover the peaceful possession of the shop to the landlord subject to the tenant giving an undertaking within two weeks from today before the Court of Small Causes to the following effect :- 1. That the tenant shall handover peaceful possession of the shop to the landlord on or before the 28th February, 2012. 2. That the tenant shall pay damages at the rate of Rs.800/- per month up to the date he hands-over the possession of the shop to the landlord. 3. That the tenant shall not induct any other person in the shop. It is made clear that in the event the tenant fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, it will be open to the landlord to get the decree executed. The writ petition is, accordingly, dismissed with the aforesaid observations.