Prafulla C. Pant, J.:— This revision, preferred under section 25 of Provincial Small Causes Courts Act, 1887, is directed against judgment and de cree dated 20th of April, 2011, passed by Judge, Small Cause Court/Additional District Judge, Rishikesh, in S.C.C. Suit No. 2 of 2010, whereby said Court has dismissed the plaintiff's suit for eviction of defendant and for recovery of ar rears of rent from him. 2. Heard learned Counsel for the revisionist, and perused the Lower Court record. No one turned up on behalf of the defendant at the time of final hearing as such the revision was heard ex parte. 3. Brief facts of the case are that the plaintiff-instituted a suit under sec tion 15 of Provincial Small Causes Courts Act, 1887 (as amended by State of Uttar Pradesh) with the pleadings that the plaintiff is the landlord of the shop in question, and the defendant Dr. K.P. Singh was his tenant, initially on rent @ Rs. 1,500/- per month, which was later on increased to Rs. 2,500/- per month w.e.f. 1.9.2007. It is further pleaded in the plaint that the defendant failed to pay rent w.e.f. 1.10.2009, on which, notice was served on him by the plaintiff, under section 106 of Transfer of Property Act, 1882, and after the defendant failed to pay the arrears of rent, his tenancy stood terminated. It is also pleaded in the plaint that provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, are not applicable to the building in suit. With the above pleas the plaintiff sought eviction of the de fendant and recovery of arrears of rent. 4. The defendant (present respondent) contested the suit before the Trial Court, and filed his written statement. He admitted that he is tenant in the shop in question of the plaintiff, but he denied that the rate of rent was in creased from Rs. 1,500/- to RS. 2,500/-. Defendant pleaded that the provision of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, are applicable to the building under tenancy. Defendant further pleaded that he has not committed any default in payment of rent rather pleaded that he has the rent demanded by the plaintiff through money order, which was not accepted by him. 5.
Defendant further pleaded that he has not committed any default in payment of rent rather pleaded that he has the rent demanded by the plaintiff through money order, which was not accepted by him. 5. On the basis of the pleadings of the parties, following issues were framed by the Trial Court: (1) Whether the defendant is tenant of the plaintiff in the shop in question, on rent @ Rs. 2,500/- per month, as alleged by the plaintiff? (2) Whether the tenancy of the defendant stood terminated by notice dated 9.11.2009, sent by the plaintiff? (3) Whether the building is covered under provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972? (4) Whether the defendant is entitled to the protection of sub-section (4) of section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as alleged in Para 14 of the written statement? (5) Whether the plaint is liable to be rejected under Order VII, Rule 11 of C.P.C., as alleged in Para 17 of the written statement? (6) Whether the defendant is entitled to special costs under section 35-A of C.P.C., as alleged in para 18 of the written statement? (7) Whether plaintiff is entitled to the arrears of rent amounting to Rs. 4,583.33 for the period w.e.f. 1.10.2009 to 25.11.2009, and mesne profits amounting to Rs. 6,290.32 for the period w.e.f. 26.11.2009, till date @ Rs. 5,000/-per month with interest? (8) To what relief, if any, the plaintiff is entitled? 6. Both the parties led their oral evidence, after filing the documents be fore the Trial Court. They were heard and the Trial Court found that the plaintiff has failed to prove the enhanced rate of rent @ Rs. 2500/- per month as alleged by him. The Trial Court further found that since, the defendant has deposited the entire arrears of rent with costs and interest amounting to Rs. 22,237/-, as such, the plaintiff is protected under the provision of sub-section (4) of section 20 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. With the above findings, the Trial Court dismissed the suit. Hence this revision. 7.
22,237/-, as such, the plaintiff is protected under the provision of sub-section (4) of section 20 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. With the above findings, the Trial Court dismissed the suit. Hence this revision. 7. Learned Counsel for the revisionist argued before this Court that the Trial Court has erred in law in holding that the plaintiff has failed to prove the increased rate of rent, as alleged by him in the plaint. In this connection, attention of this Court is drawn to the rent receipt counter foils, file per list 7-C and 30-C before the Trial Court. Perusal of the Trial Court record shows that the original counter foils of the rent receipt produced by the landlord shows that he received Rs. 2,200/- as rent for the month of September, 2007, for Dr. K.P. Singh (respondent/defendant). There are other counter foils of receipts also on the record for example for the month of October, 2007 also the plaintiff has is sued receipt of payment of Rs. 2,200/- as rent from the defendant. Similarly, for the month of November, 2007 there is yet another counter foil on the record showing payment of Rs. 2,200/- by the defendant to the plaintiff as rent for the month of November, 2007. Also for the month of December, 2007 again receipt of Rs. 2,200/- has been issued to Dr. K.P. Singh (defendant) towards the payment of rent and the last counter foil in the receipt book is of January, 2008, which also shows that the payment of rent of Rs. 2,200/- by the defendant to the plaintiff. These receipts are proved by the plaintiff by the affidavit filed by him under Rule 4 of Order XVIII of Code of Civil Procedure, 1908 (As amended vide Act No. 22 of 2002). Defendant has nowhere suggested in the cross-examination to P.W. 1 Vidhyavrat Sharma (plaintiff) that the rate of rent was not Rs. 2,500/-as alleged in the examination-in-chief (affidavit). Learned Counsel for the plaintiff explained that since Rs. 2,500/- included Rs. 300/- towards the tax, which the defendant used to pay in cash, receipt was issued to him only in re spect of Rs. 2,200/- per month.
2,500/-as alleged in the examination-in-chief (affidavit). Learned Counsel for the plaintiff explained that since Rs. 2,500/- included Rs. 300/- towards the tax, which the defendant used to pay in cash, receipt was issued to him only in re spect of Rs. 2,200/- per month. I agree with learned Counsel for the revisionist that the Trial Court has erred in law in not believing the testimony of P.W. 1 Vidyavrat Sharma, in the above circumstances of the case. 8. The Trial Court has given much emphasis to the fact that the original agreement regarding increase in the rent was not filed by the plaintiff, as such copy of agreement cannot be read in evidence. In reply to this, learned Counsel for the revisionist (plaintiff) submitted that since the original agreement was with the defendant, the plaintiff had every right to prove his case by adduc ing secondary evidence (photocopy of the rent deed regarding enhanced rent) under section 63 of Indian Evidence Act, 1872. 9. On going through the impugned judgment passed by the Trial Court, this Court finds that learned Judge, Small Cause Court has erred in law in holding that the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, are applicable to the present case. Clause (g) of sub-section (1) of section 2 of the Act, provides that the Act is ap plicable to the building whose monthly rent does not exceed ? 2,000/- per month. Since the rent payable by the defendant to the plaintiff after the sum was enhanced w.e.f. 1st of September, 2007, the Act became inapplicable to the building. As such, the Trial Court has erred in law in holding that the defen dant was protected under sub-section (4) of section 20 of the Act, which protects only to those tenants who are occupying the building covered under the Act. That being so, the tenancy of the defendant was rightly terminated by the plaintiff by serving notice tinder section 106 of Transfer of Property Act, 1882. 10. For the reasons as discussed above, this revision deserves to be allowed. However, since, the defendant is using the premises in question for commercial purposes, in the interest of justice, it is proper to allow him sufficient time to evict the premises before the decree is put to the execution. 11. Accordingly, the revision is allowed ex parte.
10. For the reasons as discussed above, this revision deserves to be allowed. However, since, the defendant is using the premises in question for commercial purposes, in the interest of justice, it is proper to allow him sufficient time to evict the premises before the decree is put to the execution. 11. Accordingly, the revision is allowed ex parte. The impugned judgment and decree dated 20th of April, 2011 passed by Judge, Small Cause Court/Additional District Judge, Rishikesh, in S.C.C. Suit No. 2 of 2010, is hereby set aside. The suit is decreed with costs for eviction of defendant, and for recovery of arrears of rent and mesne profits @ 2,500 per month. The amount already deposited by the tenant (defendant) shall be adjusted from tjje amount for which, the suit is decreed. The defendant is allowed four months time from today to vacate the shop in question (40/1 Railway Road, Rishikesh) and handover the same to the plaintiff, failing which, the plaintiff shall be enti tled to get the decree executed through the Court. Revision Allowed. _____________