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2016 DIGILAW 3009 (ALL)

Man Mohan Rastogi @ Boby v. D. J. , Meerut

2016-09-01

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – The petitioner has preferred this petition under Article 227 of the Constitution of India against the judgment and order dated 12.7.2013 passed by the Judge, Small Cause Court, Meerut and the revisional judgment and order dated 26.5.2016 passed by the District Judge, Meerut. 2. The Courts below by the impugned order have decreed the suit of the respondent No.3 for arrears of rent and eviction holding that the tenancy of the petitioner was duly determined vide notice dated 14.3.2001 which was taken to have been served and since U.P. Act No.13 of 1972 is not applicable, the petitioner is not entitle to benefit of Section 20(4) of the Act. 3. In assailing the above judgments and orders, the submission of Sri Nipun Singh, learned counsel for the petitioner is that the notice determining tenancy was not sent to the petitioner at his correct address and, therefore, as the notice was returned with the endorsement "not met" the presumption of its service cannot be drawn. 4. The notice was sent to the petitioner at the address "K-3037 Shastri Nagar, Meerut". The correct address of the petitioner is alleged to be "K-3/3037 Shastri Nagar, Meerut". Therefore, there appears to be a slight variation in mentioning the address of the petitioner. However, the block and house number with the locality was correctly mentioned. 5. The Postman had appeared as one of the witnesses and he has stated that he had gone to deliver the said registered notice to the petitioner at house No.K-3037, Shastri Nagar several times between 15.8.2001 to 21.3.2001 but the petitioner was never found there. Therefore, the notice was returned with the endorsement "not met". He further stated that there is only one house having No.3037 and there was no confusion in delivering it at the correct address of the petitioner. 6. The slight error in not mentioning the number 3' after block - K and between the house number of the petitioner as such appears to be immaterial and of no consequence. 7. In view of the principle "de minimis non curat lex" which means that "the law does not concern itself about trifles" the court can always ignore such trivial things. Accordingly it is held that there is no error or illegality on the part of the courts below in holding the deemed service of the notice upon the petitioner. 8. 7. In view of the principle "de minimis non curat lex" which means that "the law does not concern itself about trifles" the court can always ignore such trivial things. Accordingly it is held that there is no error or illegality on the part of the courts below in holding the deemed service of the notice upon the petitioner. 8. Sri Nipun Singh, learned counsel for the petitioner next tried to submit that the notice contained in the envelope which was returned was not compared with the carbon copy of the notice on record. 9. It was not the case of the petitioner that the notice which was alleged to have been sent to him was not the same or a different from the copy of the notice on record and, as such, there was no occasion for the court to open the envelope and compare the notice sent to the petitioner with the carbon copy of the notice on record. 10. Sri Nipun Singh in the end made a statement that the dispute is between two real brothers and though in the family partition the house had come in the exclusive share of the respondent No.3, the petitioner was allowed to reside therein. In such circumstances, he prays that as the petitioner had been living in it for a long time he may be allowed some reasonable time, at least a year or so to vacate the same. 11. Sri Sunil Vashisth, learned counsel for the respondents submits that it is upon the Court to grant some reasonable time but granting of one year would be too long. 12. In view of the aforesaid submissions and looking to the facts and circumstances of the case, the petitioner is allowed nine month's time to vacate the house in dispute provided he furnishes an undertaking on affidavit before the court of first instance within a period of one month from today that he will vacate and handover peaceful possession of it to the respondent No.3 within the period allowed by the Court and would not only clear the entire arrears of rent as per the decree but also pay rent/damages for use and occupation of the house at the rate of Rs.500/- per month w.e.f. 1st September, 2016 till it is vacated. 13. The petition is dismissed with the liberty aforesaid. Petition dismissed.