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2016 DIGILAW 2892 (ALL)

Vandana Gupta v. Mukesh Babu

2016-08-22

VINOD KUMAR MISRA

body2016
JUDGMENT Vinod Kumar Misra, J. – Revisionist, Smt. Vandana Gupta, has preferred this revision against the opposite parties, Mukesh Babu and Smt. Renu Gupta against the judgment and decree dated 30.10.2012 passed by Additional District Judge, Court No. 11, Aligarh in S.C.C. Suit No. 36 of 2009. 2. Heard learned counsel for the revisionist and learned counsel for the opposite parties. 3. Necessary facts of the present revision are as follows: 4. Small Causes Suit No. 36 of 2009 was filed by Sri Mukesh Babu and Smt. Renu Gupta plaintiffs against Smt. Vandana Gupta, defendant for ejectment and for recovery of arrears of rent and damages. 5. According to the plaintiffs, they have purchased two shops and house from earlier owner, Yogendra Kumar through sale deed dated 3.7.2009. The portion of the sale deed came in the share of Yogendra Kumar in family partition amongst the brothers of Yogendra Kumar. In the share of Yogendra Kumar there was one shop and one godown whose tenant was defendant, Vandana Gupta. Defendant was tenant in the shop at the rate of Rs. 700/per month and she was also tenant in the godown, which was situated behind the shop at the rate of Rs. 1500/. So, total rent was Rs. 2200/- per month excluding taxes. Defendant had paid rent of the shop and go down at the rate of Rs. 2200/- per month till June,2009 to its previous landlord. Defendant became the tenant of plaintiffs since July, 2009. Plaintiffs informed the defendant regarding the ownership of the shop and godown vested in plaintiffs from the sale deed and demanded rent from defendant at the rate of Rs. 2200/- excluding taxes but defendant did not pay rent to the plaintiffs and evaded the payment of the rents. Plaintiffs sent notice to defendant on 4.11.2009 for the payment of arrears of rent and for ejectment from shop and godown. Notice was received by defendant but defendant neither paid arrears of rent and taxes nor vacated the tenanted accommodation. Plaintiff is doing business on the tenanted accommodation through her husband. The provisions of Uttar Pradesh Rent Control and Eviction Act, 13 of 1972 do not apply in the tenanted accommodation. Tenanted accommodation is of worth Rs. 5,000/- per month rent. Defendant is in arrears of rent since 3.7.2009 to 2.11.2009 at the rate of Rs. 2200/-, water tax Rs. 880/-, drainage tax at Rs. The provisions of Uttar Pradesh Rent Control and Eviction Act, 13 of 1972 do not apply in the tenanted accommodation. Tenanted accommodation is of worth Rs. 5,000/- per month rent. Defendant is in arrears of rent since 3.7.2009 to 2.11.2009 at the rate of Rs. 2200/-, water tax Rs. 880/-, drainage tax at Rs. 352/-, house tax Rs. 1056/- and is also liable to pay cost of notice Rs. 912/-. Total due against the defendant of rent and taxes is Rs. 12,099/- excluding interest. Defendant replied the notice alleging false statements. 6. Defendant filed her written statement in the trial court and submitted that plaintiffs have no cause of action. Notice is illegal and incorrect. Plaintiffs are tenant of shop along with 'Chabutra at the rate of Rs. 200/- per month through rent deed dated 22.2.2002 and tenant of godown at the rate of Rs. 300/- per month through rent deed dated 18.1.2008. Defendant had paid rent till June, 2009 at the above rate to the landlord/owner. Defendant disputed the rate of rent and liability to pay taxes. Defendant is doing business in the disputed shop and godown with the name, Prakash Provision Store. Plaintiffs intend to evict defendant from the disputed shop and godown forcefully. Defendant had earlier filed a suit no. 398 of 2009 for perpetual injunction in the court of Civil Judge, Junior Division, Kol, Aligarh. Defendant sent the rent of June and August, 2009 at the rate of Rs. 500/- through money order to the plaintiffs, which plaintiffs refused to accept. Defendant had deposited the rent since July to September, 2009 in the court under Section 30 (1) of the U.P. Act No. 13 of 1972. Defendant had also deposited arrears of rent at the rate of Rs. 500/- at the first date of hearing under Order 15, Rule 5 of the C.P.C. along with 9% interest in the court. Provisions of U.P. Act No. 13 of 1972 are applicable in the present case. Replication was also filed by the plaintiffs reiterating the facts mentioned in the plaint. 7. Following issues were framed by the learned trial court: (i) Whether the defendant is the tenant of disputed shop and godown at the rate of Rs. 2200/- if yes, then its effect? (ii) Whether the defendant had defaulted in the payment of rent? Replication was also filed by the plaintiffs reiterating the facts mentioned in the plaint. 7. Following issues were framed by the learned trial court: (i) Whether the defendant is the tenant of disputed shop and godown at the rate of Rs. 2200/- if yes, then its effect? (ii) Whether the defendant had defaulted in the payment of rent? (iii) Whether the provisions of U.P. Act No. 13 of 1972 do not apply to the disputed tenanted accommodation. (iv) Whether defendant is entitled to get the protection of Section 20 (4) of U.P. Act No. 13 of 1972? (v) Whether notice terminating the tenancy given by the plaintiffs to defendant is valid? (vi) Whether plaintiffs are entitled to any relief? 8. Plaintiff examined himself as P.W.1 and filed documentary evidence: in the form of carbon copy of notice paper no. 8C, receipts of registry paper no. 9C, acknowledgment receipts paper no. 10C and paper no. 11C, carbon copy of plaint paper no. 12C/1 to 12C/7, acknowledgment receipt paper no. 13C, copy of summon paper no. 14C, acknowledgment receipt paper no. 15C, receipts of rent paper no. 23C to 28C, certified copy of the small causes suit no. 13 of 2002, paper no. 29C/2 to 29C/6, certified copy of the small causes suit no. 13 of 2002 paper no. 30C/ 2 to 30C/ 10, memorandum of family settlement paper no. 31C/2 to 31C/4, copy of suit no. 1101 of 2008 paper no. 32C/2 to 32C/7, certified copy of compromise deed paper no. 33C /2 to 33C/3. 9. Defendant examined herself as D.W.1 and also examined Anil Kumar as D.W.2 in the lower court. In the documentary evidence defendant has filed rent agreement dated 22.10.2012 paper no. 43C/ 3 to 43C/16, certified copy of the rent agreement dated 18.1.2008 paper no. 43C/ 1 to 43C/21, certified copy of the sale deed dated 3.7.2009 paper no. 43C/22 to 43C/41, certified copy of the application of registration 43C/42 to 43C/43, certified copy of the rent receipts paper no. 43C/44 to 43C/51. 10. Learned trial court decided the issue no. 1 in favour of plaintiff and against defendant. Issue no. 2 was decided by the learned trial court in favour of plaintiff and against defendant. Issue no. 3 was decided by the learned trial court in favour of plaintiff and against defendant. Issue no. 43C/44 to 43C/51. 10. Learned trial court decided the issue no. 1 in favour of plaintiff and against defendant. Issue no. 2 was decided by the learned trial court in favour of plaintiff and against defendant. Issue no. 3 was decided by the learned trial court in favour of plaintiff and against defendant. Issue no. 5 was decided by the learned trial court in favour of plaintiff and against defendant. Issue no. 6 was decided by the learned trial court in favour of plaintiff and against defendant. Thus, suit filed by the plaintiffs was decreed for ejectment of defendant from the disputed shop and godown and for recovery of Rs. 12088/- and for damages at the rate of Rs. 2200/- per month excluding taxes during the pendency of suit till the actual possession of the disputed shop and godown. 11. In the present revision, learned counsel for the revisionist submitted that learned trial court committed illegality in treating the tenancy of the disputed shop and godown as a single tenancy while tenancy of shop and godown were two tenancy regarding different property. So, they cannot be clubbed together. In this regard, learned counsel for the revisionist submitted that disputed shop was given in the tenancy of the defendant by Rajesh Kumar, one of the coowners of the disputed property and tenancy of the godown was given by Rajesh Kumar to defendant on 18.1.2008 through notary rent agreement. It is admitted to both the sides that plaintiffs, Mukesh Babu and Smt. Renu Gupta purchased the disputed tenanted accommodation from Yogendra Kumar through sale deed dated 3.7.2009 and Yogendra Kumar became owner of the tenanted accommodation in family settlement amongst four brother on 9.3.2008. So far as, rate of rent is concerned trial has found the rate of rent regarding the shop at the rate of Rs. 700/- and rent of godown at the rate of Rs. 1500/- on the basis of statement of P.W. 1 and on the basis of counter foil of the receipts of the previous landlord (paper no. 27C and 28C). 12. Learned counsel for the revisionist submitted that defendant had denied her signature on receipts of the previous landlord (paper no. 27C and 28C) while learned trial court read those receipts of the previous landlord (paper no. 27C and 28C) in evidence without being proved by plaintiffs. 13. 27C and 28C). 12. Learned counsel for the revisionist submitted that defendant had denied her signature on receipts of the previous landlord (paper no. 27C and 28C) while learned trial court read those receipts of the previous landlord (paper no. 27C and 28C) in evidence without being proved by plaintiffs. 13. I have gone through the evidence of P.W.1 and D.W.1 and it is found that these receipts of the previous landlord (paper no. 27C and 28C) were not proved according to law, as neither earlier landlord were examined to prove the same nor any expert opinion was sought regarding the signatures of the defendant, Vandana Gupta on the receipts. So, learned trial court committed illegality in relying on inadmissible evidence i.e. paper no. 27C and 28C. Furthermore, from the perusal of evidence available on record it is crystal clear that shop and godown were two different tenements and were let out to the defendant at different times and for this opinion, I have relied upon the law laid down by Hon'ble Apex Court in Mohd. Shafi v. VIIth Additional District Judge, Allahabad and other, 1977 ARC 182 and case law by the Hon'ble Apex Court in the case of Chunnoo Lal v. Additional District Judge, Allahabad, 1975 AIR 362, wherein it was ruled as under: "The word 'building' in the new Act has thus a special meaning and not the meaning ordinarily understood. It does not mean the entire superstructure, but means only the portion of a superstructure which is independently liable to be dealt with for purposes of letting out. This is the only meaning which the legislature could have in mind while enacting the new Act in the context of the modern system of construction of residential and nonresidential building. A 'building' under this Act means only an independent allottable accommodation, whether singly situated or is part of a building complex. In the present case the landlord is occupying the first floor which under the definition of the 'building' given in the Act will be a 'building. Similarly the accommodation in occupation of the tenant, namely, the ground floor will be 'building' within the meaning of the Act. The two are to be dealt with separately and independently and cannot be deemed to be part of a 'building' for purposes of this Act. Similarly the accommodation in occupation of the tenant, namely, the ground floor will be 'building' within the meaning of the Act. The two are to be dealt with separately and independently and cannot be deemed to be part of a 'building' for purposes of this Act. Where a super-structure consists of two or more tenements and each tenement is an independent unit distinct and separate from the other, the Explanation would be of no application, because each tenement would be a unit and not part of a unit.” 14. So, arguments of the learned counsel for the revisionist that there were two tenancy regarding the shop and godown is correct. So far as the rent of the disputed shop and godown is concerned from the registered agreement it has been proved by defendant that rate of rent of shop was Rs. 200/- and of the godown it was Rs. 300/-. Plaintiff did not examine the earlier co-owners of the tenanted accommodation in court to negate the contention of the defendant regarding the rent of shop and godown. So, finding of the learned trial court regarding the rate of rent of shop and godown is not according go law. 15. So far as question of applicability of U.P. Act No. 13 of 1972 is concerned learned counsel for the opposite party has relied upon the following case laws: (1) (1982) 2 SCC 61 (Om Prakash Gupta v. DIG Vijendrapal Gupta). (2) (1988) 7 SCC 242 ( Saleem v. District Judge, Muzaffar Nagar and others). (3) 2009 Law Suit (Allahabad) 255 (Sohan Veer Singh v. Rehti Devi). (4) (2007) 8 SCC 609 (Mundri Lal v. Sushila Rani (Smt.) and another). (5) 2012 (3) AWC 2365 (Ganesh Kapil v. Jayanti Prakash Agrawal). 16. In the first case law it has been held that: Exemption from the provisions of the Act given for period of 10 years from the date of construction of the building under Section 2(2) of the Act Held, building constructed prior to the enforcement of the Act also entitled to the exemption Where there is date of first assessment, date of completion to be reckoned from the date of first assessment and not from the date of occupation. 17. 17. In the second case law it has been held that: Under Section 2(2) every newly-constructed building is exempt from the operation of the Act for a period of 10 years counting from the date of completion of its construction. Explanation I lays down that the completion date will be taken to be the date on which the construction is recorded by, or is reported to, the relevant authority, or the date on which the first assessment of the building comes into effect. Where the dates are different the earliest will be the deemed date and where no such date has been recorded, the actual date of occupation. 18. In the third case law it has been held that: Para 9: The aforesaid Explanation has been subject matter of interpretation by the Apex Court. The Apex Court examined the matter in great depth in Om Prakash Gupta v. DIG Vijendra Pal Gupta, 1982 ARC 391 and has held that if there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction. It repelled the arguments that if the occupation of the tenant is earlier to the date of the first assessment, the date of occupation of the tenant would be the date of construction. On an interpretation of the aforesaid provisions it has been held that the occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of construction or no assessment thereof. 19. In the fourth case law it has been held that: Exemption from Operation of Rent Act Exemption in case of construction of new premises" Construction”What amounts to, and determination of Substantial addition to existing building, when enough Part only of a building if can be considered a new construction Applicability of Section 2(2) Explanation-I, 1972 U.P. Rent Act-Held, provisions of Section 2(2) contain a deeming provision and must be given their full effect. 20. 20. In the fifth case law it has been held that: Property in dispute falls within municipal area First assessment after its construction was made on 1.4.1986 Categorical finding recorded by trial court in his regard no contrary material placed by revisionist Before said date no detail of house available in municipal record Hence, Act not applicable for 40 years in view of Explanation (a) to Section 2(2)And revisionist not entitled to benefit to Section 20 (4). 21. Learned counsel for the revisionist relied on the two following case laws: (1) 1980 Legal Eagle (SC) 250 Ram Saroop Rai v. Lilavati (2) 2013 (101) ALR 370 Hem Chandra v. Additional District Judge and others. 22. In the first case law it has been held by the Hon'ble Apex Court that under Section 2(2) Explanation of the U.P. Act No. 13 of 972 Onus lies on the landlord regarding the exemption of the building from the operation of the Act, under Section 2 (2). 23. In the second case law it has been held that: "Explanation (I) (c) of Section 2 (2) second proviso of the U.P. Act No. 13 of 1972 provides that Where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be construction on the date of completion of the said addition.” 24. Admittedly, no copy of the assessment register or any report of local authority regarding the completion of building has been filed on record by plaintiffs. So far as question of construction of shop is concerned, learned counsel for the opposite side has drawn my attention towards the statement of D.W.1 in which she has stated that she has taken possession of the shop in December 2006 and shop was given to her by Rajesh Kumar after getting it constructed. I had seen the shop while being constructed. 25. Learned counsel for the revisionist submitted that nowhere in the plaint, plaintiffs has asserted that the shop was newly constructed after demolition and it is the burden of plaintiffs to prove the date of construction of the tenanted accommodation in order to seek exemption from the operation of the U.P. Act No. 13 of 1972. 26. 25. Learned counsel for the revisionist submitted that nowhere in the plaint, plaintiffs has asserted that the shop was newly constructed after demolition and it is the burden of plaintiffs to prove the date of construction of the tenanted accommodation in order to seek exemption from the operation of the U.P. Act No. 13 of 1972. 26. No doubt, it is true that burden lies upon the plaintiffs to prove that the building is not covered under the provision of the U.P. Act No. 13 of 1972. It is also true that in the plaint only this much has been stated that U.P. No. 13 of 1972 is not applicable in the present case. But it is true that in the notice sent by plaintiffs to defendant this factum has been mentioned that shop has been newly built. 27. In (2007) 8 SCC 609 ( Mundri Lal v. Sushila Rani (Smt.) and another) Hon'ble Apex Court had held that it is a well-settled principle of law that when parties have gone into trial knowing fully well the issues involved, inadequate pleading, if any, may not be sufficient to set aside the judgment. 28. Therefore, in the present case so far as the shop is concerned, in the statement D.W.1 herself it is admitted that shop was given to her after construction by Rajesh Kumar in December, 2006, so when the suit was filed the shop was less than 10 years old. So provisions of the Act No. 13 of 1972 are not applicable to the shop but so far as godown is concerned it is old godown and there is no evidence that it was rebuilt after demolition so godown which is a different tenement and provisions of the Act No. 13 of 1972 are applicable to the godown. So finding of the learned trial on non applicability of the Act No. 13 of 1972 regarding the shop and godown is not correct. So far as godown is concerned provisions of Act No. 13 of 1972 are applicable. When the provisions of Act No. 13 of 1972 are applicable regarding the godown then on the ground of default ejectment can be made only when four months rent has not been paid by the tenant. In the present case it has come in evidence that revisionist had deposited rent of the disputed godown at the rate of Rs. When the provisions of Act No. 13 of 1972 are applicable regarding the godown then on the ground of default ejectment can be made only when four months rent has not been paid by the tenant. In the present case it has come in evidence that revisionist had deposited rent of the disputed godown at the rate of Rs. 300/- in the trial court under section 30 of the U.P. Act No. 13 of 1972, as landlord has refused to accept the money order sent by defendant. Furthermore, security money was also taken by landlord while giving godown on tenancy so when security money deposited to the landlord and it is not earning any interest then even if any default is made security amount can be adjusted towards the arrears of rent, if any. 29. Thus, finding of the learned trial court regarding the ejectment of the defendant from godown on the basis of non-applicability of the Act No. 13 of 1972 by determination of tenancy is not correct and liable to be set aside. So far as the finding of the learned trial court regarding the ejectment of the defendants from disputed shop is concerned which is upheld. So far as recovery of rent and damages regarding the disputed shop and godown is concerned amount mentioned in the decree regarding the arrears of rent is not correct, as the learned trial court has calculated the rent at the rate of Rs. 700/- for shop and Rs. 1500/- for godown, which is not correct. Rent of the disputed shop will be calculated at the rate of Rs. 200/- per month and for godown it will Rs. 300/- per month. Defendant will be entitled to the arrears of rent of shop and godown at the above rate and mesne profit of the shop at the rate of Rs. 200/- per month till the date of actual possession by the plaintiffs regarding the shop. The amount deposited by defendant in the court shall be adjusted after calculating the due amount at the aforesaid rate. 30. The Revision is, accordingly, partly allowed. 31. Judgment of the learned trial court regarding the eviction of the defendant from the disputed godown is set-aside and it is upheld regarding the ejectment of the defendant from the disputed shop. The amount deposited by defendant in the court shall be adjusted after calculating the due amount at the aforesaid rate. 30. The Revision is, accordingly, partly allowed. 31. Judgment of the learned trial court regarding the eviction of the defendant from the disputed godown is set-aside and it is upheld regarding the ejectment of the defendant from the disputed shop. Regarding the recovery of the dues of arrears of rent and damages till the delivery of possession of the shop to plaintiff shall be calculated at the rate of Rs. 200/- per month and rent of godown shall be at the rate of Rs. 300/- Regarding the water tax and drainage tax is concerned the plaintiff is not entitled to the above tax, as he failed to adduce evidence regarding the actual recovery by the concerned local authority of water tax and drainage tax regarding the tenanted accommodation. 32. Copy of the judgment be sent to the court below for compliance.