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Allahabad High Court · body

2015 DIGILAW 3359 (ALL)

Ajay Kumar v. Neelesh Kumar Agarwal

2015-10-27

VIVEK KUMAR BIRLA

body2015
JUDGMENT Vivek Kumar Birla,J. Heard learned counsel for the revisionist. 2. The revision has been filed against the judgment and order of the court below dated 18.9.2015 passed by the Additional District Judge Court no. 2 District Pilibhit in J.S.C.C. Suit No. 18 of 2012. 3. The suit was filed by the landlord from the property in dispute on the ground that the shop in question is under the tenancy of the defendant to the revisionist @ Rs. 2300/- per month; the Act of 13 of 1972 is not applicable; since September 2008 rent has not been paid by the tenant; and that the registered notice dated 31.8.2012 was sent to the tenant terminating the tenancy of the tenant and demanding possession and the arrears of rent from September 2008 to August 2012 being Rs. 1,10,400/- which was refused by the tenant and thus there is sufficient service of such notice and consequently his tenancy stood terminated.. 4. Eight issues were framed by the court below. Apart from other issues, issue no. 1 was regarding dispute in rate of rent as to whether it is Rs. 2300/- or is Rs. 1150/- as being claimed by the tenant; issue no. 2 was regarding default in payment of rent; issue no. 3 was regarding validity of service under Section 106 of the Transfer of Property of Act; issue no. 4 was regarding applicability of Act No. 13 of 1972. 5. After going through the documentary as well as oral evidence on record extensively the court below has held that the tenant has not denied the rent receipts produced by the landlord and no cross examination of PW-1 was done on this by the tenant. As such, the rate of rent was held to be Rs. 2300/-. It was also held that the tenant has failed to pay rent after September 2008. The validity of service of registered notice dated 31.8.2012 under Section 106 of the Transfer of Property Act was also decided against the revisionist on the ground that the same was returned with the endorsement of refusal. Although the tenant has disputed the address where the notice was sent, the finding was recorded that the address of the tenant was same as given the plaint and the notice sent to the correct address which he had refused to receive. Although the tenant has disputed the address where the notice was sent, the finding was recorded that the address of the tenant was same as given the plaint and the notice sent to the correct address which he had refused to receive. The landlord produced original registered post receipts and its refusal and has also proved the same that the same was sent on correct address. No evidence to the contrary regarding any other address being the correct address was given by the tenant. Thus service of the notice had also been proved. Act No. 13 of 1972 is also not applicable in the present case. 6. Learned counsel for the revisionist sought to challenge the aforesaid finding. 7. All finding of facts as well as of law were recorded against the revisionist. Consequential and other issues were also decided by the court below in favour of the landlord. 8. I have gone to the finding of facts which are being assailed carefully. I am of the opinion that such finding are based on documentary and oral evidence on record, which has been properly and correctly appreciated and there is no scope of reappreciate of the same in revision. There is no legal infirmity in the judgment of the court below. 9. In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below in the present revision and the same is accordingly dismissed. 10. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that: (1) The tenant-revisionist shall handover the peaceful possession of the shop in question to the landlord-opposite party on or before 30.4.2016. 10. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that: (1) The tenant-revisionist shall handover the peaceful possession of the shop in question to the landlord-opposite party on or before 30.4.2016. (2) The tenant-revisionist shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-revisionist shall pay damages @ Rs.5,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below and the landlord is at liberty to withdraw the said amount; (4) In the undertaking the tenant-revisionist shall also state that he will not create any interest in favour of the third party in the shop in dispute; (5) Subject to filing of the said undertaking, the tenant-revisionist shall not be evicted from the shop in question till the aforesaid period; (6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. 11. No order as to costs.