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Allahabad High Court · body

2014 DIGILAW 1678 (ALL)

Kamal Kumar Kashyap v. Avinash Kumar Saxena

2014-05-22

P.K.S.BAGHEL

body2014
JUDGMENT Pradeep Kumar Singh Baghel, J. This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (for short, the "Act") is directed against the judgment and decree dated 15th April, 2014 passed by the Additional District and Sessions Judge, Court No. 4, Moradabad, in S.C.C. Suit No. 40 of 2011 (Awanish Kumar Saxena v. Kamal Kumar Kashyap) whereby the suit of the landlord has been decreed. 2. The landlord-opposite party filed a suit for arrears of rent and eviction of the revisionist, who is tenant in the shop in question @ Rs.1200/- per month. The landlord issued a notice to the tenant under Section 106 of the Transfer of Property Act, 1882 on 30th September, 2011 determining the tenancy of the revisionist and for recovery of a sum of Rs.19,200/-. The case of the landlord was that the tenant-revisionist has not paid the rent since June, 2010, therefore, he does not want to continue the tenancy of the revisionist. Thereafter, the landlord filed the suit in the Court of Small Cause, which was registered as S.C.C. Suit No. 40 of 2011. The Judge, Small Cause Court, has framed one of the issues with regard to applicability of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972). Said issue has been decided in favour of the landlord and it has been held by the Court below that the provisions of the U.P. Act No. 13 of 1972 are not applicable to the shop in question. It has also been recorded by the Court below that there is no registered agreement between the parties. Therefore, the tenancy can be determined by giving notice under Section 106 of the Transfer of Property Act. 3. I have heard Sri Rahul Chaudhary, learned Counsel for the revisionist, and Sri Kshitij Shailendra, learned Counsel for the landlord-opposite party. 4. With the consent of learned Counsel for the parties, this revision is being decided finally at this stage in terms of the Rules of the Court. 5. Having heard learned Counsel for the parties, I am of the view that the Court below has recorded finding of fact that U.P. Act No. 13 of 1972 is not applicable. 4. With the consent of learned Counsel for the parties, this revision is being decided finally at this stage in terms of the Rules of the Court. 5. Having heard learned Counsel for the parties, I am of the view that the Court below has recorded finding of fact that U.P. Act No. 13 of 1972 is not applicable. The Court below has recorded the evidence of the first assessment, which was made on 28th June, 1990, and has also taken note of the cross-examination of the tenant wherein he has admitted that he is the first tenant in the accommodation after the said shop was constructed in the year 1990. In view of the said evidence, I do not find any error in the order of the Court below in respect of the finding with regard to applicability of U.P. Act No. 13 of 1972. So far as other findings about sub-letting etc. are concerned, in view of the fact that the U.P. Act No. 13 of 1972 is not applicable, that issue has not been pressed by the learned Counsel for the revisionist. No other submission has been made. 6. Sri Kshitij Shailendra, learned Counsel for the opposite party, submits that this Court has limited jurisdiction under Section 25 of the Act and the findings of fact recorded by the Court below do not warrant any interference in the limited jurisdiction of this revision under Section 25 of the Act. 7. In view of the above, this Court finds that the impugned order passed by the Court below does not suffer from any error to warrant any interference in the revisional jurisdiction of this Court under Section 25 of the Act. Hence, the revision is dismissed. 8. 7. In view of the above, this Court finds that the impugned order passed by the Court below does not suffer from any error to warrant any interference in the revisional jurisdiction of this Court under Section 25 of the Act. Hence, the revision is dismissed. 8. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that: (1) The tenant-revisionist shall handover the peaceful possession of the shop in question to the landlord-opposite party on or before 31st May, 2015; (2) The tenant-revisionist shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-revisionist shall pay damages @ Rs.1200/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below and the landlord is at liberty to withdraw the said amount; (4) In the undertaking the tenant-revisionist shall also state that he will not create any interest in favour of the third party in the shop in dispute; (5) Subject to filing of the said undertaking, the tenant-revisionist shall not be evicted from the shop in question till the aforesaid period; (6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. 9. No order as to costs.