Shambhoo Nath v. IIIrd Addl. District Judge & Others
2014-01-13
SIBGHAT ULLAH KHAN
body2014
DigiLaw.ai
Sibghat Ullah Khan,J. At the time of hearing, no one appeared on behalf of landlords contesting respondents. Accordingly, only the arguments of Sri G.M. Kamil, learned counsel for tenant petitioner were heard. 2. Landlady Smt. Kaniz Fatima Bibi, original opposite party No.2 since deceased and survived by legal representatives filed two SCC suits against two tenants. Number of the suit filed against the petitioner of this writ petition was S.C.C. Suit No.10 of 1982, Kanij Fatima Vs. Shambhu Nath. S.C.C. Suit No.9 of 1982 was filed by the same landlady against Jagdish Prasad, tenant of the adjoining accommodation. Property in dispute is a shop. Both the suits were dismissed by Munsif, Akbarpur, Faizabad exercising power of J.S.C.C. on 23.08.1984. Landlady filed two revisions against the said judgments being Civil Revisions No.165 and 167, both of 1984. Number of the revision filed against the petitioner was 167 of 1984. Both the revisions were allowed on 22.08.1986 and the suit of the plaintiff for eviction was decreed in each case. The number of the writ petition filed by Jagdish Prasad was Rent Control No.8870 of 1986. The said writ petition was heard by me. Initially both the writ petitions were allowed by me on 22.08.2013. However on the same date, i.e. 22.08.2013 I passed another order in this writ petition directing it to be listed for further hearing. Order dated 22.08.2013 is quoted below: "This petition was connected with Rent Control No.8870 of 1986. Learned counsel for petitioner addressed the court in the other writ petition and accepting the argument of learned counsel for petitioner, the said writ petition was allowed. Thereafter, learned counsel stated that this petition was also exactly similar. Accordingly, it was dictated that this petition should also stand allowed in terms of the said judgment. However, while finalising the judgment, it transpired that in the suit giving rise to the instant writ petition, an additional point (of material alteration on the ground of construction of a room on the first floor) was involved, which was not involved in the suit, which was subject matter of the other writ petition. Accordingly, the order of date allowing this writ petition is recalled. Let this petition be disconnected with the other writ petition and listed for further hearing. This course is open in view of the following authorities. (i) Surendra Singh Vs.
Accordingly, the order of date allowing this writ petition is recalled. Let this petition be disconnected with the other writ petition and listed for further hearing. This course is open in view of the following authorities. (i) Surendra Singh Vs. State of U.P. AIR 1954 SC 194 (ii) Sangam Lal Vs. R.C. and E.O., Allahabad and others, AIR 1966 All 221 List for further hearing at the top of the list on 04.09.2013." 3. As far as question of default is concerned, the same is decided in favour of the petitioner on the same ground on which it was decided in favour of Jagdish Prasad through judgment dated 22.08.2013 passed in his writ petition, i.e. Rent Control No.8870 of 1986. Relevant para of the said judgment is quoted below: "The tenant had deposited the said amount under Section 30 of U.P. Act No.13 of 1972 subsequently which had been withdrawn by the landlady even though under protest. The deposit and withdrawal (even though under protest) amounted to payment to landlady. The contrary view of the lower revisional court is also erroneous in law. It is only withdrawal of amount deposited under Section 20(4) of the Act or under Order 15 Rule 5, C.P.C., which does not jeopardise the interest of the landlady (prejudice her pleading) by virtue of Section 20(6) of U.P. Act No.13 of 1972. " 4. As far as question of material alteration involved in this case is concerned, the revisional court in para-11 onward discussed this aspect. The case of the tenant was that landlady in writing had permitted him to make alterations. The written permission was to the effect that as the condition of the shop in tenancy occupation of Shambhu Nath had become very bad hence landlady permitting him (the tenant) for necessary repair in walls, floor to roof. It was also mentioned in the said written permission that the permission was being granted for room and stair case for going on the floor. It was further mentioned that it should be done on the expense of the tenant. The allegation was that a new room had been constructed over the first floor. The version of the tenant was that on the first floor there were only the walls, however he had got the roof placed.
It was further mentioned that it should be done on the expense of the tenant. The allegation was that a new room had been constructed over the first floor. The version of the tenant was that on the first floor there were only the walls, however he had got the roof placed. The revisional court held that the permission which had been granted was misrepresented by the trial court and under the permission tenant could not construct and altogether new room over first floor. However lower revisional court itself quoted the written permission where the word room was twice used (on ground floor, there is only one room shop). The permission was granted for constructing the stair case for going to the room and roof. If stair case is required to reach a room, it means that room is on the first floor. Moreover in the permission, it was mentioned that ''for reaching the room and the roof' which further established that sort of room over the first floor was already there. 5. Certified copy of the plaint has been supplied by learned counsel for petitioner along with supplementary affidavit. In para-4 of the same, the allegation regarding material alteration and damaged to the shop have been made. There is no mention in the said para that a new room had been constructed on the first floor. A thing, which is not pleaded cannot be permitted to be supported by evidence. No amount of evidence can be looked into, if there is no pleading to that effect. 6. Accordingly, I find that the view of the revisional court regarding material alteration is also patently erroneous in law. 7. Accordingly, writ petition is allowed. Judgment and order passed by the revisional court is set aside and judgment and decree passed by the trial court dismissing the suit for eviction is restored. 8. However, rent of Rs.20/- per month for a shop is virtually as well as actually no rent. It is rather ridiculous. On inquiry from court before start of arguments, learned counsel for petitioner agreed that in case matter was decided in his favour he on behalf of his client agreed for enhancement of the rent to a reasonable extent. 9.
However, rent of Rs.20/- per month for a shop is virtually as well as actually no rent. It is rather ridiculous. On inquiry from court before start of arguments, learned counsel for petitioner agreed that in case matter was decided in his favour he on behalf of his client agreed for enhancement of the rent to a reasonable extent. 9. Accordingly, it is directed that w.e.f. January, 2014 onward petitioner shall pay rent to the landlords (LRs of landlady respondent No.2) at the rate of Rs.1000/- per month for which learned counsel for petitioner has agreed. ________________