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2013 DIGILAW 124 (UTT)

MAHENDRA PRATAP SINGH CHAUHAN v. ANIL KUMAR

2013-03-12

V.K.Bist

body2013
JUDGMENT Hon’ble V.K. Bist, J. Controversy involved in all the petitions is identical, though the respondents are vary, however the petitioner is one and same and this Court has to adhere and adjudicate upon a common question of law, therefore, common judgment is being passed in all the petitions. Writ Petition No. 720 of 2011 (M/S) shall be the leading case. 2. Heard Mr. Mahavir Singh Tyagi, Advocate for the petitioner and Mr. Lok Pal Singh, Advocate with Mr. Nikhil Singhal, Advocate for the respondents and perused the record. 3. Brief facts giving rise to the petitions are that the respondents instituted Misc. P.A. Suits (Misc. PA Case No. 10 of 2010, 8 of 2010, 11 of 2010, 7 of 2010 and 9 of 2010), in the Court of Civil Judge (Sr. Div.), Haridwar under Section 27 of U.P. Rent Control Act 13 of 1972 (hereinafter referred to as the Act) with the averment that they are tenants in the premises owned by the petitioner and are paying rent regularly. It is asserted that the petitioner is not permitting them to take the benefit of electricity and water supply and therefore, the petitioner may be directed to give the respondents the said amenities and if he fails to do so, the respondents may be permitted to take independent electricity connection and water supply from the respective departments. Against the said suits, the petitioner filed his objections and disputed the contents of the plaints. He denied the rate of rent and payment of the same. The petitioner raised main objection that the premises in question is newly constructed and first assessment of the same is of the year 1988 and therefore, the provisions of the Act are not applicable. The petitioner also moved separate applications under Order VII Rule 11-D and Section 151 C.P.C. before the Prescribed Authority with the averment that the provisions of the Act are not applicable in the premises in question, being newly constructed. The respondents filed their objections against the said applications with the submission that the premises in question was constructed in the year 1976 by mother of the petitioner and first assessment was made in the year 1979, therefore, the provisions of the Act are applicable. The petitioner also filed assessment of the premises in question relating to 01.04.1979 to 31.03.1988, 01.04.1988 to 31.03.1994 and from 01.04.2001 onwards. The petitioner also filed assessment of the premises in question relating to 01.04.1979 to 31.03.1988, 01.04.1988 to 31.03.1994 and from 01.04.2001 onwards. According to the first assessment i.e. 01.04.1997 to 31.03.1988, there were only two rooms shown in the premises and mother of the petitioner Smt. Savitri Devi is shown as the owner. In the subsequent assessment from 01.04.1988 to 31.03.1994, five rooms and one Kothari are shown, which shows that only two rooms are constructed in the year 1979 and the rest were constructed in the year 1988. The learned Prescribed Authority vide his order dated 01.11.2010, rejected the applications of the petitioner holding that the first assessment was done of the year 1979-1988 and at the time of passing the impugned order, it is not proved that the premises was constructed after 1985 as asserted by the petitioner. Challenging the said order the petitioner preferred revisions (Revision nos. 145/2010, 142/2010, 146/2010, 144/2010 and 143/2010) before the District Judge, Haridwar, which were transferred lateron to the Court of VI Addl. District Judge, Haridwar for hearing and disposal, who vide order dated 18.03.2011 also dismissed the revisions. Against the said two orders, instant writ petitions have been filed. 4. Mr. Mahavir Singh Tyagi, learned counsel for the petitioner raised only one argument with the submission that in the assessment for the period 01.04.1979 to 31.03.1988, only two rooms are shown in the premises, whereas in the assessment from 01.04.1988 to 31.03.1994, five rooms and one Kothari are shown, thus three rooms and one Kothari were constructed in the year 1988. Learned counsel for the petitioner submitted that Section 2 (2) of the Act provides that, if any building is constructed on or before 26th April, 1985, in that event, the Rent Control Act will be applicable after a period of ten years and proviso second of Section 2 (2) of the Act provides that if the construction is after April, 1985, then Rent Control Act shall apply after a period of 40 years from the date on which its construction is completed. He further referred Explanation I (c) of Section 2 (2) of the Act which provides that if substantial addition made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition. He further referred Explanation I (c) of Section 2 (2) of the Act which provides that if substantial addition made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition. By relying on aforesaid proviso as well as on the assessment for the period 01.04.1988 to 31.03.1994 learned counsel for the petitioner submitted that since the addition made in the year 1988 was substantial and old part of the building became minor, the Rent Control Act is not applicable in the case. 5. On the other hand, Mr. Lok Pal Singh, learned counsel for the respondents submitted that the orders of Courts below are based on just appreciation of facts inasmuch as on the law applicable. He submitted that while deciding the applications filed under Order VII Rule 11-D and Section 151 C.P.C., only plaint version is to be taken into account and defence version cannot be taken into consideration. He further submitted that counter case would not be considered while dealing with the application filed under Order VII Rule 11-D C.P.C. and even evidence can also not be seen at the time of considering the said application. In order to boost his argument, learned counsel for the respondents relied upon paragraph nos. 12 and 13 of the judgment passed by Hon’ble the Apex Court, reported in (2012) 8 SCC 701 . 6. The Revisional Court has dealt with Section 26 of the Act, wherein certain rights and obligations of the landlord and tenants have been defined. Section 26 (1) of the Act imposes obligation upon the landlord that without due process of law he cannot curtail the basic amenities such as electricity and water and upon violation of this Section, the tenant is empowered to move an application before the Prescribed Authority to restore the basic amenities under Section 27 of the Act. Section 26 (2) of the Act provides that the landlord shall be bound to keep the building under tenancy windproof and waterproof, failing which the tenant is empowered to move an application under Section 28 of the Act for appropriate relief. 7. Order VII Rule 11 of C.P.C. provides that plaint can be rejected in the certain conditions. Section 26 (2) of the Act provides that the landlord shall be bound to keep the building under tenancy windproof and waterproof, failing which the tenant is empowered to move an application under Section 28 of the Act for appropriate relief. 7. Order VII Rule 11 of C.P.C. provides that plaint can be rejected in the certain conditions. One such condition is that where the suit appears from the statement in the plaint to be barred by any law. From the perusal of the plaint, it nowhere appears that suit is barred by law. The petitioner in his application has tried to make up a case that Act no. 13 of 1972 is not applicable. He also filed documentary evidence in its support. It is settled law that counter case cannot be considered while dealing with the application filed under Order VII Rule 11 of C.P.C. Similarly, evidence filed in support of such application can also not be looked into. The Hon’ble Supreme Court in various judgments has held that while dealing application under Order VII Rule 11 C.P.C., the Court has to examine the averments in the plaint and the pleas taken by the defendant would be irrelevant. Paragraph 15 of the judgment, reported in (2012) 8 SCC 701 (cited by 7 the respondent’s counsel) is being reproduced below:- “15. The law has been settled by this Court in various decisions that while considering an application under Order 7 Rule 11 C.P.C., the court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be irrelevant [vide C. Natrajan v. Ashim Bai, Ram Prakash Gupta v. Rajiv Kumar Gupta, Hardesh Ores (P) Ltd. v. Hede and Co., Mayar (H.K.) Ltd. v. Vessel M.V. Fortune express, Sopan Sukhdeo sable vs. Asstt. Charity Commr., and Saleem Bhai v. State of Maharashtra]. The above view has been once again reiterated in the recent decision of this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust.” 8. In view of above discussion, the writ petitions fails and are dismissed. No order as to costs. 9. Stay vacation applications (CLMA Nos. 12598/11, 12595/11, 12600/11 and 12602/11) also stand disposed of. 10. Let certified copy of this judgment be placed in the connected writ petitions.