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2014 DIGILAW 264 (UTT)

Shashi Bala Agarwal v. Brahma Prakash Agarwal

2014-06-25

U.C.DHYANI

body2014
Judgment U.C. Dhyani, J. 1. By means of present writ petition, the writ petitioner seeks to set aside the impugned judgment and order dated 17.11.2000 (annexure 5 to the writ petition), passed by learned District Judge, Nainital, whereby the revision preferred by the respondent Brahma Prakash Agarwal was allowed, the judgment and decree passed by the trial court on 04.08.2000 was set aide and the plaintiff’s suit against the defendant for ejectment was dismissed. Plaintiff was, however, permitted to withdraw the amount deposited by the defendant before the trial court. 2. The trial court, vide order dated 04.08.2000, decreed the suit of the plaintiff and directed the defendant to vacate the property in question. The suit was also decreed for realization of the rent and mesne profits. The said judgment and decree was set aside by the revisional court vide order dated 17.11.2000. Aggrieved against the same, present writ petition is filed by the plaintiff-writ petitioner Smt. Shashi Bala Agarwal. 3. The chronology of the events is as follows: “3. ……………………………..the petitioner instituted a SCC suit against the respondent in the Court of Judge, Small Causes Court/Civil Judge (S.D.), Nainital in respect of the building located at Bazpur Road, Kashipur. The description of the property in question e.g. the room/godown has been detailed at the foot of the plant itself. It was said that the respondent is a tenant in a portion of the building in question at the rate of Rs. 198/- per month. Different people had taken the property in question as a tenant thereof for residential purposes as well as for using the same as godown. 4. That it was stated in the plaint that the petitioner did not want to keep the respondent as tenant in the partition of the premise in question and to that effect, she had given a notice to the respondent on 20.01.1998, which was served upon the respondent on 21.01.1998. Through the said notice, the petitioner had terminated the tenancy of the respondent and had demanded the arrears of the rent as well. 5. That even after the expiry of the period of the aforesaid notice, the respondent did not pay the arrears of rent to the petitioner nor vacated the room in his possession. Therefore, the petitioner prayed for recovery of arrears of rent and ejectment. 6. 5. That even after the expiry of the period of the aforesaid notice, the respondent did not pay the arrears of rent to the petitioner nor vacated the room in his possession. Therefore, the petitioner prayed for recovery of arrears of rent and ejectment. 6. That it was stated in the plaint that the respondent had paid the rent up to the period of 30.11.1997 and the respondent was in arrears since 01.12.1997 to 20.02.1998, thus totaling the arrears to the tune of Rs. 528/-. 7. That the damages for the use and occupation was also claimed to the tune of Rs. 5000/-. 8. That it was clearly stated that the premise in question was not within the grip of the provisions of U.P. Act No. XIII of 1972. 9. That thus, a decree for Rs. 5528/- was claimed by the petitioner against the respondent along with damages at the rate of Rs. 50/- per day up to the date of actual vacation of the premise in question.” 4. On factual aspects of the case, there was no controversy between the parties. The only controversy was a regards the applicability of the provisions of U.P. Act No. XIII of 1972. The following issue was, therefore, framed by learned Judge, Small Causes Court: “Whether the premises in question would come under Section 2(1)(g) of the Act so as to come within the ambit of building fetching Rs. 2000/- per month and as such U.P. Act No. XIII of 1972 will be applicable to it or not?” 5. Whereas learned JSCC held that if the total amount of rent comes to Rs. 2000/- or more, then the premise would be out of the domain of U.P. Act No. XII of 1973, to which learned District Judge (revisional court) did not agree. Learned Revisional Court was of the view that the U.P. Act No. XIII of 1972 is applicable as the rent of tenanted premise was less than Rs. 2000/- 6. The landlord-petitioner has relied upon the decision of Hon’ble High Court of Judicature at Allahabad, in the case of Manager, Punjab National Bank vs. District Judge, Agra and others, reported in 1997 All LR 507, in which the Hon’ble High Court has held that the term ‘building’ shall mean the entire building and not the premise (s) let out alone. The landlord-petitioner has relied upon the decision of Hon’ble High Court of Judicature at Allahabad, in the case of Manager, Punjab National Bank vs. District Judge, Agra and others, reported in 1997 All LR 507, in which the Hon’ble High Court has held that the term ‘building’ shall mean the entire building and not the premise (s) let out alone. The learned Court below has relied upon the decision of Hon’ble High Court, Allahabad, in the case of Ajay Kumar Jayaswal vs. Smt. Shanti Singh and others, reported in 1998 (2) All RC 14, in which the Hon’ble High Court has held that the term ‘building’ shall mean the premise(s) let out alone and not the entire building. This High Court, in the judgment dated 04.12.2012, rendered in WPMS No. 2492 (M/S) of 2012; Shakir and others vs. Rajeev Agarwal and others; has affirmed the decision of learned District Judge, who had held that the premise(s) shall be governed by U.P. Act XIII of 1972, if the rent of each tenanted portion is less than Rs.2000/-, even if the rent collectively of all the tenanted premises be more than Rs. 2000/-. In these circumstances, the finding recorded by learned revisional court that the suit of the plaintiff-landlord is not maintainable, as U.P. Act XIII of 1972 is applicable to the premises in question, cannot be said to be suffering from any legal infirmity. 7. The Writ Petition is, therefore, liable to be dismissed and the same is, accordingly, dismissed summarily.