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2016 DIGILAW 1342 (ALL)

Sudhir Varma v. Sahin Begum

2016-04-11

MANOJ MISRA

body2016
JUDGMENT Manoj Misra, J. -- Supplementary affidavit filed today, is taken on record. 2. Heard Sri A.K.S. Bais for the revisionist and Sri Ashish Kumar Singh for the plaintiff-respondents and perused the record. 3. The instant revision has been preferred against the judgment and decree dated 18.2.2016 passed by the Small Cause Court, Saharanpur/ Additional District Judge, Court No. 11 in SCC Suit No. 18 of 2014. The only point which has been urged before this Court is that the finding returned by the court below on issue no. 3, which is as to whether the provisions of U.P. Act No. 13 of 1972 are applicable to the accommodation in suit or not, has been wrongly decided. 4. A perusal of the record would go to show that according to the plaintiff-respondents, the shop in question, of which the defendant revisionist was admittedly a tenant, was a new construction, which was assessed by the Nagar Palika, Deoband for the first time in the year 2002 and as such the U. P. Act No. 13 of 1972 was not applicable. The extract of the assessment register maintained by the Municipal Board, Deoband was produced before the court below, which reveals that between the year 1982 and 1987 the premises was recorded as House No. 611 (Old No. 476) and was described as Makan Chaubar Chakki Aata. In between year 1989 and 1992, the premises was described as above albeit with a new no. 789. Likewise in between year 1992 and 1997, it was similarly described with a new no. 892. In between year 1997 and 2002 again it was described as above with new no. 1057. In between year 2002 and 2007 for the first time the premises was described as 'Dukanat" and as many as seven numbers were allotted to the old premises 1057, which were 1065, 1066, 1067, 1068, 1069, 1070 and 1071. The court below relying on the evidence led before it, which was to the effect that in the year 1998 the plaintiff-landlord had obtained a fresh building map and pursuant thereto had raised construction of the shops which were assessed for the first time in the year 2002, came to the conclusion that the building in question was a new construction on which the provisions of U.P. Act No. 13 of 1972 were not applicable. 5. 5. The submission of learned counsel for the revisionist is that from the record it is established that the constructions allegedly raised by the plaintiff-respondents on the basis of the map sanctioned in the year 1998, were not in conformity with the building plan and, therefore, the contention that the new shops were constructed in the year 1998 and were first assessed in the year 2002 was not correct. It has been submitted that from the evidence on record it was established that old constructions were let out and since the old constructions had been assessed to municipal tax since much prior to 1987, the U.P. Act No. 13 of 1972 was applicable on the premises and the finding to the contrary returned by the court below is erroneous in law. It has also been submitted that to show that the Rent Control Act is not applicable on a building, the burden lies on the plaintiff-landlord and in the instant case, the said burden was not discharged because, admittedly, the constructions raised were not in conformity with the building plan alleged to have been sanctioned in the year 1998. 6. Learned counsel for the plaintiff-respondents has submitted that whether the constructions were in accordance with the building plan or not was not within the scope of the court below to assess and record a finding thereon, but what was clear from the evidence was that the constructions which were let out to the defendant-revisionist were newly raised constructions and were assessed for the first time in the year 2002 of which there was no specific denial in the written statement filed by the defendant-revisionist. It has been submitted that the existence of several shops on the spot has not been disputed by the defendant-revisionist and even otherwise since the defendant-revisionist had entered into possession in the year 2004, any statement made by him that the constructions were old and standing since prior to 1987 is nothing but hearsay of which no cognizance can be taken by the court. 7. I have given thoughtful consideration to the submission of learned counsel for the parties. 7. I have given thoughtful consideration to the submission of learned counsel for the parties. From the record, it appears that evidence was led by the plaintiff-landlord to show that new constructions were raised pursuant to sanction of a building plan in the year 1998 which came to be assessed for the first time in the year 2002, which is evident from the extract of the assessment register inasmuch as the description of the premises changed from a house having a Floor Mill to shops. It is thus established on record that there were new constructions which came to be assessed for the first time in the year 2002. Whether the constructions were in accordance with building plan or not is not the outlook of a court but of the Municipal Authorities concerned. 8. Accordingly, the finding returned by the court below after taking a conspectus of the evidence on record as also the extract of the Municipal Register cannot be said to be vitiated in law so as to warrant interference in revisional jurisdiction of this Court. I, therefore, do not find any illegality or impropriety in the order passed by the court below. 9. At this stage, learned counsel for the defendant-revisionist prayed that the defendant may be allowed some time to vacate the premises. 10. Sri Ashish Kumar Singh, who appears on behalf of plaintiff-respondents has fairly stated that whatever reasonable time the court considers appropriate may be awarded to the defendant-revisionist subject to furnishing an undertaking as also deposit of the decretal amount and future damages. 11. Considering the facts of the case, it is hereby provided that if the defendant-revisionist deposit the entire decreetal amount payable under the judgement and decree dated 18.2.2016 passed by the Small Cause Court, Saharanpur/ Additional District Judge, Court No. 11 in SCC Suit No. 18 of 2014 for the period payable up to 30.4.2016, subject to adjustment of amount already deposited in court, by 30.04.2016 and in addition thereto make a further deposit of damages at the agreed rate of rent found by the court below, with effect from 1.5.2016 up to 31.12.2016 by 30.4.2016 and also furnishes an undertaking, by 30.04.2016, that he would vacate and handover vacant possession of the accommodation in dispute to the landlord on 01.01.2017, the defendant-revisionist would be permitted to occupy the premises in question up to 31.12.2016. 12. 12. It is made clear that if the defendant-revisionist fails to make deposit and furnish an undertaking, as provided herein above, by or before 30.4.2016, the protection granted under this order would stand automatically vacated and it would be open to the landlord to execute the decree and obtain possession. It is also provided that if, after filing the undertaking, the defendant-revisionist fails to vacate the premises and handover vacant possession of the premises to the plaintiff landlord, as per terms of undertaking, then he shall be liable for contempt of court. 13. Subject to above, the revision is dismissed.