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2015 DIGILAW 1375 (ALL)

Asrar v. Om Prakash

2015-05-25

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. 1. This petition has been filed by tenant petitioner challenging his eviction pursuant to the orders dated 26.2.2013 and 4.4.2015, in proceedings initiated before the Small Causes Court. 2. A perusal of the records goes to show that proceedings for eviction of the petitioner were initiated by the landlord with the allegation that shop had been constructed in the year 1967, and that the provisions of the Act of 1972 are not applicable. It was further stated that since the rent of the premises exceed Rs. 2,000/-, therefore, for this reason also, the provisions of the Act of 1972 are not attracted. Landlord contended that there had been default in payment of rent, and tenancy was determined, and eviction was sought. One of the additional grounds of sub-tenancy was also set up. 3. The tenant, pursuant to receiving of notices in proceedings, deposited the entire amount of rent, and sought protection of Section 20 (4) of the Act of 1972. Both the courts below have returned a finding that provisions of the Act of 1972 do not apply, inasmuch as the first assessment of the premises had been conducted on 1.4.1992, and therefore, the Act does not apply by virtue of Section 2 (2) of the Act. Ultimately, a decree for eviction has been passed. 4. Learned counsel for the petitioner has made following submissions: - (i) It is contended that the landlord in Para 4 of the plaint had categorically admitted that the shop had been constructed in the year 1967, which averment was not amended during the pendency of the proceedings before Small Causes Court, and it was only at the stage of revision that averment was amended, substituting 1987 in place of 1967, which was impermissible. (ii). Date of construction of the building had to be determined with reference to explanation added to proviso to sub-section 2 of Section 2 of the Act of 1972, and by virtue of explanation (a), it was necessary for the landlord to have intimated the date of completion of construction to the municipal authorities, but this aspect has been completely omitted from consideration. (iii.) The suit was instituted against the petitioner and the alleged sub-tenant. (iii.) The suit was instituted against the petitioner and the alleged sub-tenant. During pendency of the proceedings, the alleged sub-tenant died, which fact was brought on record, but without impleading the heirs of sub-tenant, the proceedings have been continued and concluded, which vitiated the entire proceedings, as it stood abated, but this aspect had been omitted from consideration. 5. Learned counsel for the respondents, defending the orders impugned, submits that both the courts below have found that first assessment of the building had been carried out on 1.4.1992, and therefore, the provisions of the Act of 1972 are not attracted. It is submitted that notice under Section 106 of the Act clearly mentioned the date of construction of the building, as of the year 1987, and the amendment was also allowed at the stage of revision, which order has not been challenged, and therefore, it is not open for the petitioner to question the amendment now. 6. It is then submitted by learned counsel for the respondent that the plea of sub-tenancy, as a ground had been set up, but upon the death of alleged sub-tenant, the landlord brought on record the fact, by means of an application dated 23.10.2008, that defendant no.2 had died in August, 2008, and he had not filed any written statement, and there is no need to implead his heirs, as none of the heirs of the defendant no.2 have been found to be available or occupying the shop. It is submitted that plea of sub-tenancy had not been pressed further, and reasons for not substituting the heirs have been brought on record, which suffers from no infirmity. Lastly, it is contended that on factual aspects, the matter has been concluded, and re-appreciation of evidence by both the courts below is not required in proceedings under Article 227 of the Constitution of India. 7. Having considered the submissions, thus advanced, this Court finds that although in para 4 of the plaint, it was stated that building had been constructed in the year 1967, but the notices, which have been issued under Section 106 of the Act, clearly mentioned the date of construction of building, as of the year 1987. The order, whereby such a plea in the plaint was allowed to be amended in revision, by mentioning 1987 in place of 1967, has not been challenged. The order, whereby such a plea in the plaint was allowed to be amended in revision, by mentioning 1987 in place of 1967, has not been challenged. It is otherwise found as a fact by both the courts below that building had been assessed for the first time w.e.f. 1.4.1992. Both the courts below have otherwise construed the evidence of parties to come to a finding that the tenancy in favour of the petitioner was created after the year 1987, which findings is based upon consideration of materials on record. Since the petitioner has not challenged the order, whereby amendment in para 4 of the plaint, was allowed during the course of the revision, such an objection cannot be entertained now, and even otherwise, in view of finding returned upon appreciation of evidence suggesting that the building itself had been constructed and assessed for the first time on 1.4.1992, this Court finds no good ground to interfere with the findings returned by the courts below on this count. 8. Coming to the next question, raised with regard to non-impleadment of heirs of defendant no.2, it appears that landlord had also set up a plea of sub-tenancy for securing eviction. No written statement was filed by the alleged sub-tenant. Subsequently, the alleged sub-tenant died. It has been brought to the notice of this Court that landlord had filed an application stating that none of the heirs of the alleged sub-tenant are sitting/occupying the shop, and there is no need to substitute the heirs of the defendant no.2. This plea was not pressed any further. In such circumstances, when the plea of sub-tenancy had not been pressed, non-impleadment of the heirs cannot be faulted. 9. This Court also does not find any substance in the contention, advanced by learned counsel for the petitioner, that once the amendment in para 4 of the plaint has been allowed, matter was liable to be remitted to the trial court, inasmuch as perusal of the record goes to show that shop itself had been constructed and assessed for the first time on 1.4.1992, and such findings returned by both the courts that Act of 1972 is not applicable, cannot be said to be erroneous. 10. Lastly, learned counsel for the petitioner tenant submits that petitioner is a poor barbar, and he may be allowed a reasonable time to vacate the premises in question. 11. 10. Lastly, learned counsel for the petitioner tenant submits that petitioner is a poor barbar, and he may be allowed a reasonable time to vacate the premises in question. 11. Considering the above, it would be appropriate to observe that in case the petitioner deposits the decretal amount alongwith advance rent of 9 months, within one month from today, alongwith an undertaking that the petitioner tenant shall hand over the possession of the premises in question to the landlord, the petitioner would be allowed to continue in possession of the premises for a further period of 9 months. In case the undertaking within the period provided is not furnished, or premises is not vacated after 9 months, it would be open for the landlord to initiate appropriate steps, in accordance with law. The amount already deposited shall be adjusted. 12. Subject to the aforesaid modification, no interference in the orders impugned is called for, and the petition, consequently, fails, and is consigned to records.