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2014 DIGILAW 3358 (ALL)

Munna v. Shabab Ahmad Khan

2014-11-11

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. Heard Sri H.P. Mishra, learned counsel for the revisionist and Sri Anand Kumar Srivastava, learned counsel for the respondent. 2. The dispute in this revision is regarding eviction of the tenant from a shop comprising of house no. 98/74 Nazir Bagh, Bekanganj, Kanpur. 3. The plaintiff respondent instituted a suit for eviction of the defendant revisionist from the said shop on the ground that he has defaulted in payment of rent from 1.9.2007 to 31.5.2012 and that his tenancy has been determined by a composite notice dated 5.6.2009 of demand of rent and termination of tenancy. 4. The suit has been decreed vide impugned judgment and order dated 1.4.2014 holding that the provisions of U.P. Act No. 13 of 1972 are not applicable to the said shop and that as there is no defect in the notice terminating the tenancy. 5. The submission of Sri H.P. Mishra, learned counsel for the defendant revisionist is that the court below has grossly erred in holding that the Act is not applicable to the shop in dispute as it was no one's case that the shop was exempt from its operation.The suit was not liable to be decreed without recording finding with regard to default in payment of rent. 6. The counter submission of Sri Anand Kumar Srivastava, learned counsel for the plaintiff respondent is that there is default on part of the defendant revisionist in payment of rent and despite notice of demand rent has not been paid to him rather he had continued to deposit it in court. 7. The tenancy of the defendant revisionist is said to have been determined vide notice dated 5.6.2012. A copy of the said notice is annexure 2 to the stay application filed along with the revision. A bare reading of the said notice reveals that the plaintiff respondent by the said notice has demanded the rent for the period 1.9.2007 to 31.5.2012 ie. for 57 months and had determined the tenancy. The said notice does not contain any averment that the shop in dispute is exempt from the operation of the Act. In the plaint also the plaintiff respondent no where pleaded that the provisions of the Act are not applicable to the shop in dispute. 8. for 57 months and had determined the tenancy. The said notice does not contain any averment that the shop in dispute is exempt from the operation of the Act. In the plaint also the plaintiff respondent no where pleaded that the provisions of the Act are not applicable to the shop in dispute. 8. The provisions of the Act are applicable to all buildings situate within every city as defined under the U.P. Nagar Mahapakila Adhiniyam, every municipality, every notified area and every town area. 9. Section 2 of the Act provides for the buildings which are exempt from the operation of the Act. 10. The burden to plead and prove that the building is exempt from the operation of the Act is upon the party who seeks exemption. 11. In the instant case it is plaintiff respondent who is seeking exemption from the operation of the Act. Therefore, burden to plead the exemption and to prove that the shop is so exempted is upon the plaintiff respondent. The plaintiff respondent has neither pleaded nor proved that the shop is exempt under Section 2 of the Act from the operation of the Act. 12. In view of the above, the court below has manifestly erred in holding that as none of the parties have pleaded about the exemption of the shop from the operation of the Act, it would be deemed that the Act is applicable to it. The correct legal position is the other way round that where exemption is not pleaded by any of the parties, the inference is that the Act is applicable. 13. Thus, the finding of the court below that the shop is exempt from the Act is perverse and illegal. 14. Accordingly, when the Act is applicable to the shop in dispute, the tenant thereof can only be evicted on the limited grounds as specified under Section 20 of the Act and not otherwise. 15. No doubt the default in payment of rent is one of the grounds but then for eviction of the tenant on the above ground a finding has to be recorded that the tenant has defaulted in payment of rent for a period over four months preceding the institution of the suit. 16. 15. No doubt the default in payment of rent is one of the grounds but then for eviction of the tenant on the above ground a finding has to be recorded that the tenant has defaulted in payment of rent for a period over four months preceding the institution of the suit. 16. A reading of the impugned judgment and order reveals that the court below has not recorded any finding that the defendant revisionist had defaulted in payment of rent and is in arrears for a period of four years rather the finding is that he had been depositing rent at the agreed rate of Rs. 250/- per month regularly under Section 30 of the Act. 17. The very fact that the defendant revisionist had been depositing rent under Section 30 of the Act itself is indicative of the fact that the parties admit that the Act is applicable. 18. In view of the aforesaid facts and circumstances, as the Act is applicable to shop in dispute and there is no finding by the court below that the defendant revisionist is in arrears of rent or has defaulted in payment of rent, the court below manifestly erred in law in decreeing the suit. 19. According, impugned judgment and order dated 1.4.2014 is set aside and the suit stand dismissed. Revision is allowed with no orders as to costs.