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2016 DIGILAW 1467 (ALL)

Shailesh Mohan Saxena v. Indu Gupta

2016-04-20

MANOJ MISRA

body2016
JUDGMENT Manoj Misra, J. – Heard Sri K.D. Tripathi, learned counsel for the defendant-revisionists and Sri Udit Chandra for the plaintiff-respondent. 2. The present revision has been filed, under Section 25 of the Provincial Small Causes Court Act, against the judgment and order dated 15.03.2016 passed by the Additional District Judge, Court No.5, Bareilly/Judge, Small Causes in S.C.C. Suit No. 19 of 2013 by which the landlord's suit for eviction and arrears of rent has been decreed against the revisionists. 3. On the pleadings of the parties, the court below framed as many as four points for consideration: - (i) Whether the notice terminating tenancy dated 07.02.2013 is valid; (ii) Whether the disputed shop was within the purview of U.P. Act No. 13 of 1972; (iii) Whether the defendant had committed default in payment of rent; and (iv) As to what relief the plaintiff was entitled to? 4. With respect to the Point No. 2, a finding has been returned that though from the documents on record it is established that the shop in dispute was assessed for tax for the first time in the year 2010 but since it has been found that the defendant had been in possession since 1995-96, therefore, the shop in dispute would be taken to have been constructed in 1995-96 and since it was constructed after 26.04.1985, therefore, the U.P. Act No. 13 of 1972 would not be applicable on the accommodation for next 40 years and as such the shop in question was not within the purview of U.P. Act No. 13 of 1972. 5. With respect to validity of notice, the court below recorded a finding that even though the notice terminating tenancy had given 15 days time to the tenant to vacate the premises but since the suit was instituted after 30 days of service of notice, the defect in notice, if any, was inconsequential by virtue of section 106(3) of the Transfer of Property Act. 6. In respect of question of default in payment of rent, the court below recorded a finding that the tenant had defaulted in payment of rent with effect from 01.08.2012. 7. After recording findings as above, the suit was decreed. 8. Learned counsel for the revisionist has only assailed the finding of the trial court on the question whether the U.P. Act No. 13 of 1972 was applicable to the accommodation in dispute or not. 7. After recording findings as above, the suit was decreed. 8. Learned counsel for the revisionist has only assailed the finding of the trial court on the question whether the U.P. Act No. 13 of 1972 was applicable to the accommodation in dispute or not. 9. Learned counsel for the revisionist submitted that from the documents on record, it is clear that the premises in question was part of a building which was subject to assessment since the year 1982-83 and, therefore, the accommodation in question would have been covered by U.P. Act No. 13 of 1972. 10. In response to the above submission, the learned counsel for the respondent has invited attention of the Court to paragraph 17 of the Written Statement where, in additional pleas, the defendant-revisionist had admitted that the shop was assessed to tax by Nagar Nigam, Bareilly with effect from 01.06.2010. Learned counsel for the plaintiff-respondent further pointed out that from the evidence on record it was clearly established that the shop in question was separately assessed with effect from 01.06.2010 and, therefore, by virtue of Explanation I to the Proviso to Section 2(2) of the U.P. Act No. 13 of 1972, it would be deemed to have been constructed in the year 2010 and, therefore, the U.P. Act No. 13 of 1972 would not be applicable. 11. I have given thoughtful consideration to the submissions of counsel for the parties. 12. From the record, it is established that the shop in question was assessed for the first time in the year 2010. 13. Under the circumstances, by virtue of Explanation I to the Proviso to Section 2(2) of the U.P. Act No. 13 of 1972, the date of construction of the building would be deemed to be the date on which the first assessment thereof came into existence. 14. No other point has been pressed. 15. Accordingly, I do not find any legal infirmity in the order passed by the court below. 16. At this stage, learned counsel for the revisionists prays for some time to vacate the premises. 17. 14. No other point has been pressed. 15. Accordingly, I do not find any legal infirmity in the order passed by the court below. 16. At this stage, learned counsel for the revisionists prays for some time to vacate the premises. 17. Considering the facts of the case, it is hereby provided that if the defendant-revisionists deposit the entire decretal amount payable under the judgement and decree dated 15.03.2016 passed by JSCC/ Additional District Judge, Court No. 5, Bareilly in SCC Suit No. 19 of 2013 for the period payable up to 30.4.2016, by 15.05.2016 and in addition thereto make a further deposit of damages at the rate of 1700/- per month for a period starting from 1.5.2016 up to 31.12.2016 by 15.05.2016 and also furnish an undertaking that they would vacate and handover vacant possession of the accommodation in dispute to the landlord by or before 1.01.2017, the defendant-revisionists would be permitted to occupy the premises in question up to 31.12.2016. 18. It is made clear that if the defendant-revisionists fail to make deposit and furnish an undertaking, as provided herein above, by or before 15.05.2016, 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-revisionists fail to vacate the premises and handover vacant possession of the premises to the plaintiff landlord, as per terms of undertaking, then they shall be liable for contempt of court. 19. Subject to above, the revision is dismissed. Revision dismissed.