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2015 DIGILAW 3799 (ALL)

Muneer Ahmad v. Maqbool Ahmad

2015-12-03

VIVEK KUMAR BIRLA

body2015
JUDGMENT Vivek Kumar Birla, J. – Heard learned counsel for the revisionist and Sri Ashish Kumar Singh, learned counsel appearing for the landlord-respondent. 2. The present revision has been filed against the judgment and order of the court below dated 28.10.2015 passed by the Judge Small Cause Court/Additional District Judge, Court No. 4, Saharanpur in S.C.C. No. 23 of 2008. The said suit was filed by the respondent-landlord on the ground that the shop in dispute is under the tenancy of the revisionist @ Rs. 1200/- per month; the Act 13 of 1972 is not applicable in the present case; since first July 2008 rent has not been paid by the tenant; registered notice dated 12.5.2015 was sent to the tenant terminating the tenancy and demanding possession and arrears of rent from 1.7.2005; and the aforesaid registered notice was admittedly received by the tenant on 15.5.2008 and was replied by him on incorrect facts. 3. Five issues were framed by the court below. Issue no. 1 was regarding rate of rent as to whether the rate of rent is Rs. 1200/- or Rs. 500/- per month, on which a finding was recorded by the court below that the rate of rent is Rs. 500/- per month. Issue no. 2 was as to whether the tenant has defaulted in making payment since 1.7.2005 to 30.4.2008, on which a finding was recorded by the court below that the tenant has defaulted in making payment since 1.7.2005. The said finding was recorded on the basis of material and evidence on record. Issue no. 3 was regarding applicability of Act 13 of 1972, after perusal of documentary evidence on record regarding sanction of map, which was accorded on 24.7.1990 and the assessment for the year 1987 to 1992 wherein the property was noted as plot, it was held that the construction is new and the building is not covered under the Act 13 of 1972 and the same is not applicable to the property in question. Issue no. 4 was regarding service of notice on which it was held that admittedly the registered notice dated 12.5.2008 was received by the defendant on 15.5.2008 and was also replied and as such notice was validly served on the tenant. Consequently, the relief for eviction and payment of arrears of rent w.e.f. 1.7.2005 was passed. Issue no. 4 was regarding service of notice on which it was held that admittedly the registered notice dated 12.5.2008 was received by the defendant on 15.5.2008 and was also replied and as such notice was validly served on the tenant. Consequently, the relief for eviction and payment of arrears of rent w.e.f. 1.7.2005 was passed. A further direction was given that the tenant shall vacate the property within a period of one month and for future occupation he shall be liable to pay rent @ Rs. 500/- per month. 4. I have carefully gone through the finding of facts which are being assailed. 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 re-appreciate of the same in revision. There is no legal infirmity in the judgment of the court below. 5. All these finding of facts, it cannot be re-appreciated by this Court in the light of the decision of Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, 2014 (9) SCC 78 . 6. All finding of facts as well as law were recorded against the revisionist. Consequential and other issues were also decided by the court below in favour of the landlord. 7. 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. 8. 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 premises in question to the landlord-opposite party on or before 31.8.2016. (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 entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-revisionist shall pay damages @ Rs. 1,000/- 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; (5) In the undertaking the tenant-revisionist shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-revisionist shall not be evicted from the premises in question till the aforesaid period; (7) 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. 9. No order as to costs.