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2015 DIGILAW 3949 (ALL)

Anil Kumar Singh v. Hanuman Das Bansal

2015-12-11

VIVEK KUMAR BIRLA

body2015
JUDGMENT Vivek Kumar Birla, J. – Rejoinder affidavit filed today, is taken on record. 2. Heard Shri C.K. Rai, learned counsel for the tenant-revisionist and Shri Ashish Agrawal, learned counsel appearing for the landlord-opposite party. 3. The present revision has been filed against judgment and order dated 31.3.2015 passed by Additional District Judge, Court No. 5/Small Causes Court Act, Ghaziabad in SCC Suit No. 5 of 2012. The SCC Suit No. 5 of 2012 was filed by the landlord on the ground that on 11 months' agreement dated 1.4.2008 executed between the parties, the property hall 60/60 ft. was let out @ L 13,200/- per month rent and the rent was to be enhanced by 10% to 20% from March, 2009. As such, rent with effect from 1.3.2009 @ L 15,180/- with an increase of 15% was claimed by the landlord and a sum of L 2,01,300/- was claimed as arrears of rent. A registered notice under Section 106 of the Transfer of Properties Act dated 28.12.2011 was given to the petitioner claiming arrears of rent and terminating the tenancy in question. The court below has framed 10 issues. 4. Issue No. 1 regarding applicability of the Act 13 was decided against the tenant holding that the said Act is not applicable. Issue 2 No. 2, 3 and 4 which were to the effect as to whether the defendant-revisionist is a tenant of property S-15, Vrindavan Gaurden, Sahibabad, Hall of 60/60 ft. which had been rented out by the plaintiff to the defendant and as to whether the rent deed dated 1.4.2008 was executed between the parties. After perusal of documentary evidence on record a finding of fact was recorded by the court below that plaintiff is the landlord of the property in question and the said hall on ground-floor was rented out to the defendant and rent deed dated 1.4.2008 was executed between the parties. 5. Issue No. 5, was as to whether the notice under Section 106 of Transfer of Properties Act dated 28.11.2012, was served upon the defendant or not. The court considered the evidence on record, which was in the shape of notice along with the registered receipt and showing the service of notice on 31.12.2011 on the defendant. The said receipt was disputed by the tenant by saying that he has not received the notice. 6. The court considered the evidence on record, which was in the shape of notice along with the registered receipt and showing the service of notice on 31.12.2011 on the defendant. The said receipt was disputed by the tenant by saying that he has not received the notice. 6. The court below has taken notice of the statement of DW-1 himself that the address given in the notice is correct and if any letter is sent on this address the same shall be delivered to him. 7. In such view of the matter, a finding of fact was recorded by the court below that presumption under Section 27 of the General Clauses Act, 1897 is in favour of the landlord and as such bare denial on the part of tenant would not suffice and the sufficiency of service was held in favour of the landlord. It may be noticed in this regard that a categorical service of notice dated 31.11.2012 was asserted by the landlord and it was not a case of service by refusal or otherwise. In such view of the matter, it cannot be said that the finding of fact regarding service of notice recorded by the court below is perverse or illegal in any manner whatsoever. 8. A reference may be made in this regard to the Full Bench decision of this Court in the Case of Ganga Ram v. Phoolwati, AIR 1970 Alld., pg. 446, wherein three questions were framed. The question no. 2 as framed in the aforesaid judgment and its answer is as follows: - 2. Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him? 2. The answer is in the negative. 9. After detailed discussion and considering the provisions of Section 106 of the Transfer of Property Act, 1882 Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, Post Office Act, 1898 the answer to question no. 2 was given in negative. 10. Consequently, the Issue No. 6 regarding as to whether the notice was valid or not, was also correctly decided in favour of the landlord after noticing the provisions of Section 106 and 111 of the Transfer of Properties Act. 11. 2 was given in negative. 10. Consequently, the Issue No. 6 regarding as to whether the notice was valid or not, was also correctly decided in favour of the landlord after noticing the provisions of Section 106 and 111 of the Transfer of Properties Act. 11. Issue No. 7 and 8 regarding claim of the landlord that he is entitled for rent with 15% increase as per the rent deed dated 1.4.2008 and as to whether the tenant is in arrears of L 2,01,300/- was also decided in favour of the landlord after recording a finding of fact. 12. Issue No. 9 regarding default in making payment of rent was also recorded in favour of the landlord as rent up to November, 2011 was admittedly accepted by the landlord and thereafter there is no evidence to indicate that the rent was paid by the tenant. 13. Issue No. 10 regarding claim of L 50,000/- as damages under Section 35-A of CPC was decided in favour of the tenant. After recording findings, the suit was decreed in favour of the landlord. The court below has awarded the damages @ L 25,000/- with effect from 1.2.2012 till the actual possession is delivered to landlord. 14. The submission of learned counsel for the revisionist is that this amount is highly excess as he was tenant only @ L 13,200/- per month and no evidence whatsoever was produced by the landlord to indicate the market rate on which the property could have been rented out during which period. 15. I find substance in the argument of learned counsel for the revisionist on this issue and suggested for reduction of rate of rent from L 25,000/- to L 20,000/- w.e.f. 1.2.2012 till actual possession is handed over. Learned counsel for the landlord-opposite party agreed to the same. 16. 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. 17. 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. 18. 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. 18. 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 . 19. 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. 20. At this stage, learned counsel for the revisionist prays for that one year's time is granted to vacate the premises. Learned counsel for the opposite party has seriously disputed the same. 21. In the facts and circumstances of the case, six months' time is granted to the opposite party to vacate the premises, 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 30.6.2016. (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 @ L 20,000/- per month with effect from 1.12.2012 till actual possession is handed over to the landlord-opposite parties. (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. 22. No order as to costs.