Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 104 (UTT)

ANIL BADOLA v. YOGENDRA KUMAR

2013-03-06

B.S.Verma

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral) Heard Sri Jitendra Chaudhary, Advocate for the revisionist and Sri Vivek Pathak, Advocate for the respondents. 2. This civil revision is directed against the judgment and decree dated 14-1-2013 passed by Judge SCC/Addl. District Judge Kotdwar, Garhwal in SCC Suit NO. 7 of 2007, Yogendra Kumar and others vs. Anil Badola, whereby the suit of the plaintiffs was decreed for recovery of Rs. 16,800/- and eviction of the defendant. The plaintiff were also held entitled to get a sum of Rs. 2400/- per month damages for use of occupation. 3. Brief facts of the case are that a house 16x70feet, east facing situated at Najibabad-Kotdwar National Highway, which is ground floor along with two rooms situated on the roof of first floor on the roofs of the shop, was let out to defendant @ 2400/- per month rent. The house was constructed in the year 1992 and the assessment of house was done for the first time on 1.4.1996 therefore U.P. Act No. 13 of 1972 is not applicable to it. The defendant had paid the rent of the shop upto February 2007 but he has not paid the taxes despite demand. The defendant without the permission of plaintiff made certain material alterations in the disputed shop and he is adamant to do some other alterations in shop. The plaintiffs do not want to continue the tenancy of the defendant and issued notice U/S 106 T.P.Act against the defendant and determined his tenancy with a notice of 30 days. The plaintiffs also sent notice for recovery of arrears of rent on 26.3.2007 but the defendant gave evasive reply. Despite notice neither the defendant paid the arrear of rent and taxes nor handed over possession of the shop. Hence the suit was filed. 4. The defendant contested the suit by filing his W.S. and admitted his tenancy. He alleged that the alterations done in the shop were done with the consent of plaintiff. It was further alleged that the earlier agreement dated 26-3-2007 was waived as the plaintiff executed another agreement dated 4.5.2007 after taking two Lakhs rupees from the defendant. In reply the plaintiff denied the execution of the agreement dated 4.5.2007, nor he obtained Rs. two lakhs from the defendant. 5. The trial court framed necessary issues in the case. 6. Thereafter parties adduced evidence in support of their cases. 7. In reply the plaintiff denied the execution of the agreement dated 4.5.2007, nor he obtained Rs. two lakhs from the defendant. 5. The trial court framed necessary issues in the case. 6. Thereafter parties adduced evidence in support of their cases. 7. The trial court after considering the evidence on record came to the conclusion that provision of Act No. 13 of 1972 do not apply to the building in question. On issue No.2 the trial court has given the finding that the tenancy had made material alterations in the shop in question without prior consent of the land lord. On the point of waiver of notice and execution of another agreement the trial court has decided the issues against the tenant and in favour of the landlord. Accordingly the suit was decreed. 8. Feeling aggrieved the tenant/defendant has preferred this revision. 9. The learned trial court has recorded a categorical finding that the building was constructed in 1992 and it was assessed for rent for the first time on 1.4.1996. Although the defendant denied this fact but did not adduce evidence and paper No. 40-C issued by Nagar Palika Parishad Kotdwar was filed to show the assessment of rent during the period 2001-2006. Thus the trial court has rightly held that provision of U.P.Act No.13 of 1972 do not apply to the disputed shop. On the point of material alterations in the shop done by the defendant the trial court after assessing the evidence of parties has held that the defendant did not obtain the consent of the landlord for material alterations in the shop. The trial court also held that the defendant could not establish this fact that the notice issued to him was waived. The rent agreement was not renewed and the defendant could not establish that he had paid Rs. two lakhs to the landlord in lieu of renewal of agreement. The trial court also found that the tenant was defaulter in payment of rent also. Accordingly the suit was decreed. I do not find any illegality or infirmity in the conclusion arrived at the learned trial court and the same do not require interference by this court. 10. The revision petition lacks merit and is dismissed. 11. The trial court also found that the tenant was defaulter in payment of rent also. Accordingly the suit was decreed. I do not find any illegality or infirmity in the conclusion arrived at the learned trial court and the same do not require interference by this court. 10. The revision petition lacks merit and is dismissed. 11. However, to do complete justice, one years’ time is allowed to the petitioner/tenant to vacate the shop in question provided he gives undertaking to this effect before the trial court concerned, that he will handover the peaceful possession of the shop in question to the landlord and shall pay the decretal amount within a period of three months and shall continue to pay agreed rent of the shop in question.