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2015 DIGILAW 2732 (ALL)

VIRENDRA SINGH v. MOHAN PYARI

2015-09-03

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—This revision has been filed under Section 25 of Provincial Small Causes Courts Act by the tenant challenging the decree of the Small Causes Court for eviction and payment of arrears of rent with damages. 2. Respondent-landlord instituted proceedings for eviction of the tenant before the small causes Courts, in which the defendant-revisionist filed a written statement. On the basis of pleadings of the parties, four issues were framed for consideration in the proceedings : (1) Whether the rate of rent of the premises is Rs. 2000/- per month or Rs. 300/- per month. (2) Whether the defendant is a defaulter in payment of rent. (3) Whether the tenant has sub-let the tenanted premises and if it is found so then, what are the consequences. (4) Whether provisions of U.P. Act No. 13 of 1972 are attracted. (5) As to what is the relief, which is liable to be granted. 3. Court below on the first question formulated disbelieved the case of the landlord on rent being Rs. 2000/- per month and accepted the case of the tenant that the rent payable is Rs. 300/- per month. On the second question of default, it was held that in case the provisions of Act No. 13 of 1972 are held applicable then the tenant shall not be a defaulter, otherwise he is a defaulter. On the third question, a finding has been returned that the tenant has sub-let the premises. On the fourth issues, a finding has been returned that the provisions of U.P. Act No. 13 of 1972 are not attracted. In view of the findings returned on the first four issues, the plaintiff’s suit has been decreed for eviction and payment of arrears of rent and damages. Aggrieved by the order and judgment of the Small Causes Court dated 26.4.2007, present revision has been filed. 4. Shri Ranjit Saxena, learned counsel for the revisionist submits that the main question, which arises for consideration in the present revision is as to whether the provisions of U.P. Act No. 13 of 1972 are attracted or not. Aggrieved by the order and judgment of the Small Causes Court dated 26.4.2007, present revision has been filed. 4. Shri Ranjit Saxena, learned counsel for the revisionist submits that the main question, which arises for consideration in the present revision is as to whether the provisions of U.P. Act No. 13 of 1972 are attracted or not. Learned counsel for the revisionist has invited the attention of the Court to a photo copy of the agreement to sell dated 24th of January, 1984 and it is contended that a specific recital is made in the agreement that the house had been constructed prior to the said date, and therefore, the date of completion of tenanted premises has to be treated as prior to 24th of January, 1984, and provisions of U.P. Act No. 13 of 1972 would be attracted. Learned counsel further submits that the trial Court has erred in relying upon the date of first assessment to hold that the construction of the building is after the cut of date i.e. 26th of April, 1985 so as to exclude the applicability of the Act itself. In support of his contention, learned counsel for the revisionist has relied upon the decisions of this Court reported in the cases of Rajesh Kumar v. Dushyant Kumar, 2015 (1) ADJ 95 ; Smt Pushpa Devi and others v. Additional District Judge, Allahabad and another, 2011 (7) ADJ 640 ; Kali Ram v. Mistri Udal, 2011 (9) ADJ 84 ; Madan Mohan Sharma v. Ashok Kumar Kaushik, 2013 (1) ADJ 313 and Shital Prasad v. Rent Control and Eviction Officer and others, 2010 4 AWC 3369 All. 5. Shri Rajiv Joshi, who appears for the respondent-landlord contends that on the facts of the present case the judgments relied upon by the counsel for the revisionist has absolutely no application inasmuch as the law is settled that the construction of a building shall be deemed to have been completed on the date, on which the completion thereof is reported or otherwise recorded by the local authority having jurisdiction, which admittedly is not the case here, inasmuch as no evidence has been adduced to show that the completion of the building had been reported to or recorded by the local authority at any point of time. It is submitted that otherwise the date of first assessment would have to be treated as the date of completion of construction for the purposes of applicability of the Act of 1972 in the facts of the present case. Learned counsel submits that in the facts of the present case, the building had been assessed for the first time in January, 2000 for the period 1987 to 1992. Learned counsel submits that this document, which is a photocopy of the assessment has been adduced by the revisionist-defendant himself, and therefore, once it is admitted to the revisionist that the building has been assessed for the first time in the year 2000 for the period 1987 to 1992, there can be no issue on the factual proposition that the building has been assessed for the first time after 26th of April 1985. Submission is that findings returned by the Court below that the provisions of the Act of 1972 are not attracted is clearly born out from the record. 6. Having considered the submissions aforesaid, this Court finds that there is nothing on record to show that completion of building has been reported to or recorded by the local authority concrned at any point of time. 7. The first judgment, which has been relied upon by the learned counsel for the revisionist in Rajesh Kumar v. Dushyant Kumar (supra) clearly notices the scheme of the Act to determine the date of completion of construction so as to attract the provisions of the Act of 1973. Paragraph 10 and 11 of the judgment is reproduced : “Explanation 1 to Section 2(2) of the Act provides that the construction of a building shall be deemed to have been completed on the date on which its completion thereof is reported to or is otherwise recorded with the local authority and in case of building subject to assessment the date on which the first assessment comes into force and in the absence of the either of the above two conditions the date on which it is actually occupied. Admittedly, there is nothing on record to establish completion of the building on reconstruction. It completion was not reported or was otherwise recorded by the local authority. No assessment of the shop after its reconstruction was brought on record. The sanctioning of the map for its reconstruction is not material. Admittedly, there is nothing on record to establish completion of the building on reconstruction. It completion was not reported or was otherwise recorded by the local authority. No assessment of the shop after its reconstruction was brought on record. The sanctioning of the map for its reconstruction is not material. Therefore, the shop may not have been reconstructed as alleged.” 8. The other decisions, which have been relied upon by the learned counsel for the revisionist lays down same proposition and do not help the revisionist’s case. 9. In the facts of the present case, this Court finds that there is no evidence brought on record from either side with regard to reporting of completion of construction to the local authority. It is not the case that completion of building was reported by the local authority or was otherwise recorded to the local authority. The only evidence, which has been adduced from both the sides, is with regard to the first date of assessment of the building concerned. Both the parties have relied upon the assessment made by the Municipal Authority for the first time in the year, 2000 for the period 1987 to 1992. The defendant has himself filed the first assessment of the building vide paper No. 22-C-1. Learned counsel has also pointed out that at page 93 of the paper book of the instant revision also the first assessment brought on record by the defendant-revisionist is for the period 1987 to 1992. It is therefore, an admitted fact to both the parties that the building had been put to assessment for the first time in the year, 2000 for the period 1987 -1992, which is after the cut of date prescribed in the Act i.e. 26th of April, 1985. 10. Learned counsel for the revisionist has laid emphasis upon the photo copy of agreement to sell in order to contend that the building had been completed prior to 24th of January, 1984 and the same was acknowledged by the landlord. The argument of Shri Rajiv Saxena in this regard is noticed only to be out-rightly rejected. The Act for the purposes of adjudicating the present controversy clearly lays down the determinative criteria as to whether the Act 13 of 1972 is applicable upon a premises or not. Section 2(2) second proviso alongwith its explanation lays down the manner for such determination which is reporduced. The Act for the purposes of adjudicating the present controversy clearly lays down the determinative criteria as to whether the Act 13 of 1972 is applicable upon a premises or not. Section 2(2) second proviso alongwith its explanation lays down the manner for such determination which is reporduced. The photocopy of the agreement to sell cannot be a document relevant for the purpose of determining the date of completion of construction in view of the statuary provisions of the Act itself. Even otherwise what is mentioned in the agreement to sell is that the construction of the house has been completed, whereas the proceedings for eviction are in respect of a shop. The contention of the learned counsel that the shop is a part of the house is a matter of fact, which has not been subjected to any determination, and therefore, it cannot otherwise be relied upon. Learned counsel for the revisionist has also submitted that the certified copy of the assessment has not been produced by the landlord and in the absence thereof, the assessment cannot be relied upon. This Court is not required to dwell further upon this issue as the defendant has himself brought on record the copy of the assessment, according to which the building had been assessed for the first time in the year 2000 for the period 1987 to 1992. Once the document filed by the defendant himself demonstrated that the building had been put to assessment for the first time for the year 1987 to 1992, the question of non filing of certified copy looses any significance. 11. In view of the discussions aforesaid, this Court finds that the findings returned by the trial Court upon issue No. 4 is based on correct appreciation of the law with reference to the facts available on record and there is no error of jurisdiction, which may justify any interference of this Court. Revision is, consequently, dismissed with costs. 12. Lastly, learned counsel for the revisionist submits that he may be granted a reasonable opportunity to vacate the premise. This prayer is opposed by the learned counsel for the defendant-lanlord on the ground that a finding of sub-letting also stairs against the revisionist. 13. Revision is, consequently, dismissed with costs. 12. Lastly, learned counsel for the revisionist submits that he may be granted a reasonable opportunity to vacate the premise. This prayer is opposed by the learned counsel for the defendant-lanlord on the ground that a finding of sub-letting also stairs against the revisionist. 13. However, in the facts of the present case in the opinion of the Court the interest of justice would be served, if the revisionist is allowed three months time to vacate the premises and to hand-over the peaceful vacant possession of the premise to the landlord. This would be subject to filing of an affidavit by the revisionist within a period of three weeks from today, before the Court below, alongwith the deposit of rent for the period of three months, and in case, an undertaking is filed in this regard, the revisionist shall be allowed to continue in possession for a period of three months. 14. Failure on the part of the revisionist to honour aforesaid conditions would render, it open for the landlord to proceed further in the matter in accordance with law.