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2013 DIGILAW 2691 (ALL)

Chhotey Lal v. Amina Shafi

2013-10-29

VISHNU CHANDRA GUPTA

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JUDGMENT Vishnu Chandra Gupta,J.: - Heard Sri S.K. Nigam, learned counsel for the revisionist and Sri P.K. Sinha, learned counsel appearing for the opposite party-landlord. 2. This revision u/s 25, Provincial Small Causes Courts Act is directed against the judgment and decree dated 28.5.2011 passed in S.C.C. Suit No. 8 of 2002 (Ameena Shafi Vs. Chhote Lal) by which the revisionist was directed to be evicted from the premises and for recovery of arrears of rent and damages for use and occupation from tenant/revisionist. 3. The brief facts for deciding this revision are that the plaintiff filed the suit for eviction of the revisionist from a shop situated in Defence Colony, Jajmau, Kanpur, which was alleged to be given in the tenancy of the opposite party No. 2 at a monthly rent of Rs. 2,000/- per month by erstwhile landlord. During the continuance of the tenancy of the revisionist, the property was purchased by the plaintiff-respondent and as such the plaintiff becomes the landlord by operation of law. When the rent was not paid, a notice under Section 106 of Transfer of Property Act (for short T.P. Act) has been given terminating the tenancy of the revisionist on the ground that the provisions of U.P. Act No. 13 of 1972 (U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972) are not applicable to the premise in question. The suit was contested by the revisionist-tenant by filing a written statement alleging therein that he is tenant at the rate of Rs.220/- per month for the last five years. He paid the rent to its erstwhile landlord Istiyak Ahmad till August, 2000 and thereafter when Istiyak Ahmad refused to accept the rent, he deposited the rent under Section 30(1) of U.P. Act No. 13 of 1972 in Court of Civil Judge (Junior Division) in Misc. Case No. 68/70/02. The notice under Section 106 of T.P. Act is wrong because the U.P. Act No. 13 of 1972 are applicable to the tenant property. The Court after taking the evidence of both the parties, determined that the plaintiff is the landlord as DW-1 himself admitted ownership of the house during cross-examination. The Court further held that the rate of rent is Rs. 2,000/- per month. Hence the provisions of U.P. Act No. 13 of 1972 are not applicable. The Court after taking the evidence of both the parties, determined that the plaintiff is the landlord as DW-1 himself admitted ownership of the house during cross-examination. The Court further held that the rate of rent is Rs. 2,000/- per month. Hence the provisions of U.P. Act No. 13 of 1972 are not applicable. The benefits of deposits made by the tenant under Section 30 would not give any benefit as the U.P. Act No. 13 of 1972 is not applicable and consequently, after notice given under Section 106 of T.P. Act, suit was decreed. 4. The learned counsel for the revisionist contended that the finding recorded by the Trial Court that the U.P. Act No. 13 of 1972 are not applicable is illegal. It is against the statutory provisions. He relied upon the provisions contained in Section 2 in which in certain circumstances, the building will out of the purview of the operation of the Act. Section 2(1)(g) of U.P. Act No. 13 of 1972 provides: "any building, whose monthly rent exceeds two thousand rupees;". Admittedly, the Court finds that the rent of the premises is Rs.2,000/- and the same is not exceeding two thousand rupees. Hence the finding recorded by the Trial Court on the premises that building which fetches rent of Rs. 2,000/- per month is exempted from the operation of the U.P. Act No. 13 of 1972 is perverse, it cannot be allowed to sustain. 5. When the premises is covered under the provisions of U.P. Act No. 13 of 1972, the eviction could be made on the limited grounds as contained in Section 20 and 21 of the U.P. Act No. 13 of 1972. A specific notice is required if the tenancy is being terminated in terms of the Section 20 of the U.P. Act No. 13 of 1972 on the basis of the default. Therefore, the decree passed for eviction could not be allowed to sustain. 6. In view of the fact that the finding recorded by the Trial Court is perverse regarding non applicability of the Act 13 of 1972, the whole decree is bound to be set aside. 7. Therefore, the decree passed for eviction could not be allowed to sustain. 6. In view of the fact that the finding recorded by the Trial Court is perverse regarding non applicability of the Act 13 of 1972, the whole decree is bound to be set aside. 7. The matter is remitted back to the Trial Court to decide the matter afresh after giving opportunity of being heard to both the parties within a period of three months on the basis of evidence already available on record from the date of production of certified copy of this order before the Trial Court. The parties are directed to appear before the Trial Court on 9th December, 2013. 8. The revision is accordingly allowed.