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Uttarakhand High Court · body

2013 DIGILAW 758 (UTT)

SURESH CHANDRA JOSHI v. SHYAM SUNDER JAISWAL

2013-11-27

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J (Oral). 1. Landlord/revisionist, herein, is assailing the judgment and decree dated 30.03.2011 passed by JSCC, Nainital whereby suit filed by the landlord/revisionist seeking eviction of the tenant was dismissed holding that provisions of U.P. Act No. 13 of 1972 are applicable and no ground is made out for eviction of the tenant under Section 20 of the U.P. Act No. 13 of 1972. 2. Tenant/respondent, herein, is in possession of 6 shops. As per written statements, all the six shops were taken by the tenant on rent at different point of time, therefore, all the shops have different tenancy, however, composite monthly rent of Rs. 5175/- is being paid by the tenant to the landlord. 3. It was admitted by the tenant/respondent, during the recording of statement on oath, that all the six shops do not have permanent wall in between them and all the six shops have only temporary partition made up of plywood and glass. It is further admitted that initially, rent of shops was paid separately, however, on the request of landlord, composite monthly rent of Rs. 5175/- was agreed to be paid. 4. In view of the above, I find that all the six shops have one composite tenancy. Since monthly rent for all the six shops was agreed to be paid @ Rs. 5175/-, therefore, monthly rent exceeds from Rs. 2000/-, consequently, in view of Section 2 (1) (g) of the U.P. Act No. 13 of 1972 provisions of the U.P. Act No. 13 of 1972 have no application, therefore, finding of the trial court that U.P. Act No. 13 of 1972 has application in the case cannot be said to be correct. Since tenancy of respondent is not governed by U.P. Act No. 13 of 1972, therefore, tenancy of shops shall be deemed monthly tenancy at will, which can be terminated merely by issuing valid notice under Section 106 of the Transfer of Property Act, 1882. 5. Undisputedly, landlord/revisionist issued a notice under Section 106 of the Transfer of Property Act, to the tenant on 13.05.2008 by registered post AD through his Advocate calling tenant/respondent to vacate tenanted premises on the expiring of thirty days after receipt of notice, therefore, tenancy of respondent stood terminated after expiry of 30 days from the service of notice dated 13.05.2008. 6. 6. Since relationship of landlord and tenant is admitted; service of notice dated 13.05.2008 under Section 106 of the T.P. Act is admitted and provisions of U.P. Act No. 13 of 1972 has no application, therefore, respondent/tenant has absolutely no valid defence, consequently, suit filed by revisionist is liable to be decreed. Therefore, revision is allowed. Impugned judgment and decree is set aside. Suit filed by the revisionist/landlord being SCC No. 08 of 2008 is decreed for eviction of tenant. 7. At this stage, Mr. Lok Pal Singh, learned counsel for the respondent/tenant submits that he has been instructed by respondent/ tenant to make statement that tenant shall vacate the premises, in question, within two years, therefore, two years time may be granted to the tenant/ respondent, herein, to vacate the property, in question, on payment of monthly mesne profit at the prevailing market rent. 8. On the other hand, Mr. Manoj Tiwari, Sr. Advocate for the revisionist/landlord, submits that two years time to vacate the premises is on higher side and is not reasonable. He further contends that since country made liquor shop along with canteen is being run in the tenanted shops and landlord/revisionist is residing in backside of the shops and due to nuisance of the consumers of liquor, revisionist/landlord is facing great hardship, therefore, one year time would be sufficient for tenant/respondent to vacate the premises, in question. 9. Having heard learned counsel for the parties, in the opinion of this Court, time till 31.05.2015, would be sufficient for the respondent/tenant to vacate the premises, in question. Therefore, I direct that (i) respondent/tenant shall hand over the peaceful, vacant & actual possession of the premises, in question, to the landlord/revisionist on or before, 31.05.2015; (ii) tenant/respondent, herein, shall pay monthly mesne profit to the landlord/revisionist @ Rs. 8,000/- per month with effect from 15.06.2008 till the actual physical, peaceful and vacant possession of the property, in question, is handed over to the landlord; (iii) tenant/respondent shall pay monthly mesne profit @ Rs. 8,000/- to the landlord, on or before 10th day of each and every month; (iv) entire arrears shall be paid by the tenant/respondent, on or before 10.12.2013 (v) tenant/respondent, herein, shall further furnish an undertaking to the above effect in the shape of affidavit before the trial court, on or before 10.12.2013. 10. 8,000/- to the landlord, on or before 10th day of each and every month; (iv) entire arrears shall be paid by the tenant/respondent, on or before 10.12.2013 (v) tenant/respondent, herein, shall further furnish an undertaking to the above effect in the shape of affidavit before the trial court, on or before 10.12.2013. 10. If arrears are not paid or any default is made in payment of monthly mense profit or undertaking, to the above effect, is not furnished till 10.12.2013, decree of eviction of the tenant shall be liable to be executed forthwith, at the risk and cost of respondent. It is further made clear that if tenant fails to deliver vacant, peaceful and actual possession of the property, in question, to the landlord, on or before 31.05.2015, landlord shall be at liberty to proceed against the tenant/respondent in accordance with law at the cost and risk of tenant/respondent.