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Allahabad High Court · body

2013 DIGILAW 1616 (ALL)

JAI NARAIN SINGH v. BAL KRISHNA MISHRA

2013-05-30

S.U.KHAN

body2013
Sibghat Ullah Khan, J. Heard learned counsel for both the parties. This revision under Section 25, Provincial Small Causes Court Act ( P.S.C.C. Act) is directed against judgment and decree dated 05.07.2008 passed by J.S.C.C./A.D.J., Court No.1, Allahabad in S.C.C. Suit No.7 of 2005, Jai Narain Singh Vs. Bal Krishna Mishra., through which the suit of the landlord applicant for eviction of the tenant respondent from the tenanted property in dispute was dismissed. Property in dispute is a shop. Landlord alleged that rate of rent was Rs.1000/- per month and as the building had been constructed after 1985, hence U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972 ( hereinafter referred to as U.P. Act No.13 of 1972), was not applicable thereupon. Prior to the filing of the suit, tenancy was terminated through notice dated 02.02.2005. Through the said notice arrears of rent and water tax from 01.01.2004 were also demanded. The tenant pleaded that rate of rent was Rs.500/- per month including water tax. Tenant further pleaded that the property in dispute was constructed much before 1985, first house tax had been assessed on 01.10.1976, hence U.P. Act No.13 of 1972 was applicable. It was also stated by the tenant that rent until December, 2004 had been paid without receipt. Receipt of notice was admitted. It was also stated that rent from January, 2005 onward was first sent through money order and after refusal of the landlord to accept the same rent was deposited under Section 30 of the U.P. Act No.13 of 1972 in Misc. Case No.1532 of 2005. Tenant also asserted that at the time of taking the shop in dispute on rent, advance/pagari of Rs.50,000/- had been paid by him to the landlord. The court below held that the rate of rent was Rs.500/- per month as alleged by the tenant. The court below further held in favour of the tenant that he was not liable to pay water charges. Question of default was also decided by the court below in favour of the tenant. However, the court below held that the allegation of the tenant that at the time of taking the shop in dispute on rent, he had paid Rs.50,000/- as advance/pagari was not proved. Thereafter under issue No.3, the court below held that the shop in dispute had been constructed in 1999-2000. However, the court below held that the allegation of the tenant that at the time of taking the shop in dispute on rent, he had paid Rs.50,000/- as advance/pagari was not proved. Thereafter under issue No.3, the court below held that the shop in dispute had been constructed in 1999-2000. In this regard it was also held that in the year 1976-77 only a small portion was constructed consisting of only one room and afterwards in the year 1999-00 major portion including the shop in dispute was constructed and as some of the new constructions were not in accordance with the relevant rules, regulations etc., hence landlord had to pay penalty in the form of compounding fees. Accordingly, it was held that U.P. Act No.13 of 1972 was not applicable on the building in dispute. However suit was dismissed on the ground that as tenant was not defaulter hence he could not be evicted. If the U.P. Act No.13 of 1972 does not apply, then even a non-defaulter tenant can be evicted after termination of tenancy. The contrary view of the court below is patently erroneous in law. Learned counsel for respondent has mainly argued that the findings of non-applicability of U.P. Act No.13 of 1972 are erroneous in law and under Order XLI Rules 22, and 33, C.P.C. he is entitled to argue the said point even as respondent in this revision. I have considered this aspect of date of construction and applicability of the Act. The court below has mentioned that receipt dated 15.03.1999 of payment of Rs.8000/- by the landlord to A.D.A., Allahabad had been filed by him. Thereafter, demand notice dated 29.01.2001 demanding total payment of Rs.54,506/- ( actual payment of Rs.46506/- after deducting Rs.8000/-) had been issued which was filed as Paper No.33-C/6. Paper No.33-C/7 filed by the landlord was receipt of payment of Rs.46506/- dated 15.02.2001 issued by A.D.A. Paper No.33-C/8 and Paper No.33-C/9 were sanctioned plan, which was dated 22.02.2001. From the above papers, it is quite evident that major portion including the shop in dispute had been constructed in 1999-2000 much after 1976-77. Accordingly, I do not find any error in the findings recording the age of construction and non-applicability of the U.P. Act No.13 of 1972. In view of the above, revision is allowed. Judgment and decree passed by the appellate court is set aside. Accordingly, I do not find any error in the findings recording the age of construction and non-applicability of the U.P. Act No.13 of 1972. In view of the above, revision is allowed. Judgment and decree passed by the appellate court is set aside. Suit of the plaintiff is decreed for recovery of possession and for recovery of arrears of rent w.e.f. 01.01.2005 at the rate of Rs.500/- per month. The deposit made by the tenant under Section 30 of U.P. Act No.13 of 1972 is not to be adjusted as the Act does not apply. The same may be returned to the tenant. Tenant respondent is granted six months time to vacate on the following conditions. 1. For this period of six months, which has been granted to the tenant-respondent to vacate, he is required to pay Rs.12,000/-( at the rate of Rs.2,000/- per month) as rent/damages for use and occupation. This amount shall be deposited within two months before the J.S.C.C., Allahabad and shall immediately be paid to the landlord applicant. 2. Within two months from today tenant- respondent shall file an undertaking before the J.S.C.C., Allahabad to the effect that within six months from the date of this judgment, he will willingly vacate and handover possession of the property in dispute to the landlord applicant. 3. Within two months from today tenant- respondent shall deposit entire arrears of rent due till date before the J.S.C.C. for immediate payment to the landlord ( after adjusting any amount already deposited in the court below). 4. If within two months undertaking is not filed or the decreetal amount and amount of Rs.12,000/- is not deposited then from today till actual eviction tenant shall be liable to pay Rs.4000/- per month as rent/damages for use and occupation. 5. Similarly if after filing undertaking and depositing the decreetal amount and aforesaid amount of Rs.12,000/- property in dispute is not vacated within six months then since after six months till actual vacation tenant applicant shall be liable to pay rent/damages @ Rs.4000/- per month. It is needless to add that this direction of payment of Rs.4000/- per month is in addition to the right of the landlord to file contempt petition and to get the accommodation in dispute vacated through execution.