Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2001 (ALL)

Abdul Samad v. Small Causes Court

2014-07-09

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. – Heard Sri Arvind Srivastava, learned counsel for the petitioners and Sri S.C. Kushwaha, has appeared for respondent No.3. 2. Petitioners are the owners and landlords of the premises in dispute numbered as 106/1 renumbered as 258 which contains a shop. Petitioners instituted a suit for the eviction of the respondent No.3 from the shop forming part of premises No.106/1 alleging that it has been reconstructed and as such the provisions of U.P. Act No.13 of 1972 are not applicable. The respondent No.3 has defaulted in payment of rent for the period of 25.8.1994 to 24.2.1996. His tenancy has been determined vide notice dated 2.3.1995. 3. The suit was contested on the allegation that the shop is an old shop which is covered by the provisions of the Act. 4. The court of first instance by the impugned judgment and order dated 25.5.04 dismissed the suit holding that the Act is applicable and since tenancy has not been determined for default in payment of rent under the Act, petitioners are not entitle to any relief. The court declined to record any finding on the point of defaults no relief for arrears of rent was claimed. 5. The revision preferred by the petitioners against the aforesaid judgment was dismissed by judgment and order dated 8.5.2008. 6. Aggrieved by the above judgment and orders, petitioners have preferred the present writ petition. 7. The basic argument of Sri Srivastava, learned counsel for the petitioner is that the courts below have erred in holding that a shop is covered by the provisions of the Act. He submits that the shop was an old shop but it was reconstructed after the petitioners got its map sanctioned in the year 1988 whereupon it was first assessed to house tax in the year 1993, therefore, it is outside the ambit of the Act. 8. Petitioners have filed a map of the building as annexure-5 along with the sanction dated 29.9.1988 given by the Jhansi Development Board. 9. The aforesaid sanction dated 29.9.1988 nowhere mention that it is in-connection with the reconstruction plan of the building 106/1 to 110 or 258. 8. Petitioners have filed a map of the building as annexure-5 along with the sanction dated 29.9.1988 given by the Jhansi Development Board. 9. The aforesaid sanction dated 29.9.1988 nowhere mention that it is in-connection with the reconstruction plan of the building 106/1 to 110 or 258. The sanctioned map which is enclosed with it though mentions that it is a proposed plan of house No.106/1 but in the absence of any clear recitals in the sanctioned that it pertains to the shop or property in question and that the map enclosed with it is actually the part of the said sanction, the courts below have not erred in ignoring the same. 10. The next document which has been relied upon by the petitioners is the house tax assessment of the year 1991-92 to 2001-2002 in respect of house No.106/1- new 256 which has been filed as annexure-3 to the petition. 11. No doubt the aforesaid is a document of assessment as recorded with the municipal board but the said document is silent as to whether it is the first assessment of the building or it is in-continuation with any previous assessment. 12. In view of above, the said assessment cannot be treated as the first assessment of the building/shop. The tenancy agreement between the parties annexure-4 to the petition only states that the shop has been newly constructed in the year 1989 and the construction is incomplete. However, there is nothing on record to show as to when the completion of the construction was reported to the local authority or was recorded by it. 13. There is no document showing its first assessment if any after reconstruction. 14. In the absence of the aforesaid both the documents, which are crucial for determining the date completion of the construction as provided under Section 2(2) explanation 1(a) of the Act, there is no error on the part of the courts below? in recognizing the shop to be an old construction covered by the Act. 15. This is not a case where the tenancy of the respondent No.3 could have been determined simpliciter in exercise of powers under Section 106? of the Transfer of Property Act, 1882. 16. in recognizing the shop to be an old construction covered by the Act. 15. This is not a case where the tenancy of the respondent No.3 could have been determined simpliciter in exercise of powers under Section 106? of the Transfer of Property Act, 1882. 16. Accordingly, as the Act was applicable until and unless the petitioners were able to prove default of more than 4 months or any other grounds as contained in Section 20 of the Act they could not succeed which in evicting the respondent No.3 from the shop in question. 17. The petitioners have not claimed any arrears of rent in the suit and as such it was not obligatory upon the courts to have gone into the question of default. In view of the aforesaid facts and circumstances, I am of the view that it is not a case where any injustice has been done with the petitioners. The writ petition is devoid of merit and is dismissed.