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2017 DIGILAW 2291 (ALL)

Manoj Kumar @ Chimma v. Guru Vachan Singh

2017-10-05

VIVEK KUMAR BIRLA

body2017
JUDGMENT : Vivek Kumar Birla, J. Heard learned counsel for the petitioner and Sri Sanjay Kumar Pundir, learned counsel appearing for the respondents. 2. Present writ petition has been filed seeking setting aside judgment and order dated 27.1.2017 passed by Judge, Small Causes Court as well as judgment and order dated 28.8.2017 passed by the Additional District Judge, F.T.C. Saharanpur in Suit No. 51 of 2013, Guru Vachan v. Manoj Kumar @ Chimma. A further prayer in the nature of mandamus directing the court below to allow the application under Order 6, Rule 17 read with Section 151 C.P.C. Paper No. 16 Ga of the petitioner in S.C.C. Suit No. 51 of 2013, Guru Vachan v. Manoj Kumar @ Chimma pending in the court of Judge, Small Causes Court has also been made. 3. The suit filed by the plaintiff-respondent for rent and eviction was allowed by the Judge, Small Causes Court vide judgment and order dated 27.9.2016. The revision filed by the petitioner against the same was also dismissed vide judgment and order dated 28.8.2017. The case of the plaintiff was that the shop was on rent for a limited period upto 31.10.2013 pursuant to the rent deed dated 16.12.2012 and in the rent deed it was clearly mentioned that the construction is new and the provisions of Act No. 13 of 1972 are not applicable. A notice was given to the petitioner which he has refused to accept. Again another notice was given to the petitioner which again was refused and as such service was deemed to be sufficient in the present case. 4. The tenant's case was that the shop was old and the provisions of Act No. 13 of 1972 are applicable in the present case. In support of his argument assessment receipts from the years 1975 to 1980, 1980 to 1986 and one 1991 to 1997 were filed wherein it was mentioned that prior to 1991 the property was old construction, however, in the assessment of 1991-1997 the shop was mentioned for the first time in the year 1994. The agreement between the party is not in dispute. 5. The agreement between the party is not in dispute wherein it has been categorically mentioned that the construction is new and the provisions of Act No. 13 of 1972 are not applicable. The trial court framed five issues and on Issue no. The agreement between the party is not in dispute. 5. The agreement between the party is not in dispute wherein it has been categorically mentioned that the construction is new and the provisions of Act No. 13 of 1972 are not applicable. The trial court framed five issues and on Issue no. 1 it was found that there is relationship of landlord and tenant between the parties and on Issue no. 2 notice of the assessment of the year 1991-1997 wherein apart from residential house the shop was also mentioned and the specific case of the landlord was that the shop was constructed in the year 1990 and was assessed for the first time in the year 1991. The third issue regarding default in payment of rent was also decided against him. The fourth issue regarding damages to the property was also decided against him. The fifth issue regarding sufficiency of notice to the petitioner was decided against the petitioner on the ground that the petitioner has deliberately refused to accept the notice. All such findings of fact were affirmed by the revisional court. 6. By drawing attention to Annexure-2 to the writ petition submission of learned counsel for the petitioner is that the assessment for the years 1975-1980 and 1980-1986 clearly indicates that the construction is old and therefore the provisions of Act No. 13 of 1972 would apply in the present case. 7. I have perused the findings recorded by the courts below as well as judgment of the revisional court. I find that the findings are based on the documentary evidence on record. A perusal of the assessment for the years 1975-80 indicates that the property has been recorded as house and the name of Sri Raj Kumar has been recorded for the purpose of own residence. The assessment of the years 1980-86 shows that the name of Sri Guruvachan Singh, landlord-respondent herein has been recorded and his own occupation has been shown in the house and his residence has been shown. It is in the assessment years of 1991-97 apart from house two shops have been mentioned and the name of owner is Guruvachan Singh, the landlord-respondent herein has been recorded for own purposes. The categorical case of the landlord is that the property was newly constructed in the year 1990 and was assessed for the first time in the year 1991. The categorical case of the landlord is that the property was newly constructed in the year 1990 and was assessed for the first time in the year 1991. Such documents could not be disputed by producing any contrary documentary evidence. Thus, the concurrent finding so recorded by both the courts below that the construction is new and the same was assessed for the first time in the year 1991 is in accordance with the documentary evidence on record and no different finding of fact under Article 227 of the Constitution of India can be recorded by re-appreciating the same. A reference may be made in this regard to the Constitutional Bench judgement of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) 9 SCC 78 . 8. Apart from that the rent deed dated 16.12.2012 executed between the parties for a period of eleven months is not in dispute and it was categorically mentioned in the rent deed that the construction is new and the provisions of Act No. 13 of 1972 are not applicable. 9. In such view of the matter, I do not find any illegality in the findings so recorded by the court below. 10. Further submission of learned counsel for the petitioner is that there was no service of notice in the present case and as such because of defect in the service of notice the tenancy cannot be terminated. 11. On Issue no. 5 it has been clearly noticed that the notice dated 3.10.2013 was sent by registered post on its correct address. It is not in dispute that the petitioner herein has refused to accept the notice and the same was returned with an endorsement that he has refused to receive the same and therefore, returned. 12. It is settled law that the notice served with endorsement of refusal by the postal authorities sent on correct address is treated to be sufficient service of notice. A reference may be made in this regard to the judgment of this Court rendered in the case of Ganga Ram v. Phulwati AIR 1970 Allahabad 446. 13. 12. It is settled law that the notice served with endorsement of refusal by the postal authorities sent on correct address is treated to be sufficient service of notice. A reference may be made in this regard to the judgment of this Court rendered in the case of Ganga Ram v. Phulwati AIR 1970 Allahabad 446. 13. Once the provisions of the Rent Control Act are held to be not applicable and the notice of termination of tenancy is held to be valid, the assertion of the learned counsel for the petitioner that there was default in payment of rent becomes inconsequential. 14. In such view of the matter, I do not find any legal infirmity in the findings so arrived at by the courts below. 15. In such of the matter, I do not find any good ground to interfere in the orders impugned herein. Present writ petition is, accordingly, dismissed. 16. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.6.2018. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-petitioner shall pay damages @ Rs. 2,500/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30th June, 2018 or till the date he vacates the premises whichever is earlier and the landlord is at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. 17. No order as to costs.