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2016 DIGILAW 3857 (ALL)

Vinod Chandra Sharma v. Raj Kumar Sharma

2016-11-30

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. Heard learned counsel for the petitioner and Shri Rajesh Tripathi, counsel for the respondent. 2. This writ petition arises out of an SCC Suit for arrears of rent, eviction and damages. The suit was filed, also on the ground that the tenant had made material alterations in the tenanted accommodation without the permission and consent of the landlord. 3. This suit was decreed by the Civil Judge, Junior Division by the judgement and order dated 11.02.2007. The consequential SCC revision filed by the petitioner has also been dismissed vide order dated 01.10.2016. Hence this writ petition challenging the aforesaid two judgements. 4. It is submitted that the finding on the question of material alterations has been returned on the ground that a suit for injunction, filed by the landlord against the petitioner, had been decreed ex parte. By this ex parte decree, the petitioner had restrained from making any material alterations in the accommodation in question. He had also been restrained from obtaining a water or electricity connection. 5. The contention, in this regard, is that the alterations that were made by the tenant had all been made prior to the ex parte decree, which, in any case, was not within the knowledge of the petitioner. Besides no finding has been returned that the value of the property in question had diminished on account of the constructions/ alterations that are alleged to have been made by the petitioner. 6. In this regard, reliance has been placed upon the judgement in the case of Pratap Narain & Another vs. District Judge, Azamgarh & Another in 1996 (1) ARC 264, specially para 13 thereof. The said judgement, in my considered opinion, has no application in the facts and circumstances of the case. It has been specifically held by the courts below that the alterations etc. were made in violation of and despite knowledge of the ex parte judgement and decree, whereby by the tenant had been restrained from making any alteration or getting any fresh water or electricity connection. The submissions made, also before this Court, have not been accepted by the courts below on the reasoning that even after the ex parte judgement was filed in the current proceedings, the petitioner failed to challenge it, thereby accepting it. 7. I do not find any flaw in the reasoning given by the courts below. The submissions made, also before this Court, have not been accepted by the courts below on the reasoning that even after the ex parte judgement was filed in the current proceedings, the petitioner failed to challenge it, thereby accepting it. 7. I do not find any flaw in the reasoning given by the courts below. It is now not open for the petitioner to claim to the contrary. Besides the petitioner cannot be permitted to reap the benefit of a wrong committed by him in not complying with a decree of a competent court, despite not having challenged it. The case cited, does not deal with a situation where an injunction decree had been found to have been violated. It is, therefore, clearly distinguishable on facts. 8. The next contention is that a specific issue as regards the benefit of sub-section (4) of Section 20 of the UP Act No. 13 of 1972 was necessarily required to be framed. The court below, committed manifest illegality is not framing such an issue. Petitioner, in the facts and circumstances of the case was entitled to the protection of this provision as the arrears had been deposited on the first date of hearing. 9. In support of this contention, reliance has been placed upon the judgement in the case of Abdul Sattar vs. ADJ, Allahabad & Others 1994 AWC, 249. 10. This issue being raised is of no consequence because the eviction has not been ordered on the ground of arrears of rent. Eviction order has been passed on the basis of a finding that material alteration had been made by the petitioner despite an injunction decree operating against him. 11. It is clear from the bare perusal of the operative portion of the judgement of SCC Suit that no order has been passed for deposit any arrears of rent. It necessarily follows that the contention of the tenant that he was not in arrears of rent, was accepted. The order of eviction has been passed by the trial court on the ground of material alterations having been made in the accommodation in question without the consent of the landlord and in violation of the judgement and decree passed by the court of competent jurisdiction which judgement and order, in any case, was never challenged by the tenant even after he acquired knowledge of the same. 12. 12. Under the circumstances even the second contention of the learned counsel for the petitioner is without substance. 13. In view of the above discussion, the orders impugned, warrant no interference. 14. The writ petition is devoid of merits and is accordingly dismissed.