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2017 DIGILAW 2666 (ALL)

Hukum Singh v. Rajan Singh

2017-11-17

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Shyam Sunder, learned counsel appearing for the respondent. 2. Present writ petition has been filed for setting aside the order dated 27.10.2017 passed in S.C.C. Revision No. 30 of 2014 and judgment and order dated 30.8.2014 passed in S.C. Case No. 39 of 2012 filed as Annexures 5 and 3 respectively to the writ petition. 3. The suit for rent and eviction filed by the landlord was allowed vide judgment and order dated 30.8.2014. The revision filed against the same by the tenant was rejected vide judgment and order dated 27.10.2017.Both orders are under challenge in the present writ petition. 4. The suit was filed on the ground that in the shop in question the petitioner is the tenant at the rate of Rs. 600/-per month and the shop is outside the limits of Nagar Palika/Nagar Nigam and as such the provisions of Act 13 of 1972 are not applicable. The tenant has committed default in making payment of rent and as such a registered notice dated 17.11.2011 was given to the petitioner which was returned with an endorsement of refusal and thereafter the suit was filed. 5. The suit was contested by the tenant on the ground that there is no default in making payment of rent; he was never issued any receipts and on 29.8.2011 the money order was sent to the landlord but the same was not accepted; the rent due was deposited under Section 20 (4) of Act 13 of 1972 and as such the tenant was entitled for the benefit of the aforesaid provision; and that the shop in dispute is situated at Aligarh Anoopshahr road i.e. within the Nagar Palika/Nagar Nigam limits and as such the provisions of Act 13 of 1972 are applicable in the present case. Apart from other documentary evidence the landlord has placed on record carbon copy of notice, original registry receipts and the certificate issued by the Gram Pradhan of Gaon Sabha Manjoorgarhi regarding the shop that the same exists within the Gaon Sabha Manjoorgarhi and is outside the Nagar Palika/Nagar Nigam limits. The oral evidence was also given. The tenant has also filed certain documentary evidence on record including the judgment passed in an injunction suit and the challan regarding deposit of due rent in the court. 6. Five issues were framed by the trial court. 7. The oral evidence was also given. The tenant has also filed certain documentary evidence on record including the judgment passed in an injunction suit and the challan regarding deposit of due rent in the court. 6. Five issues were framed by the trial court. 7. The first issue was as to whether the defendant was the tenant of the plaintiff. This issue was decided in favour of the landlord holding that the petitioner herein is tenant in the shop at the rate of Rs. 600/-per month. The second issue was with regard to the default in making payment of rent. On this issue it was found that the petitioner had sent rent by money order which was returned and thereafter the amount of rent was deposited under Section 20 (4) of Act 13 of 1972, as such, there was no default in making payment of rent. Regarding third issue relating to applicability of the Act, after considering the oral as well as documentary evidence on record it was recorded that the shop exists outside the municipal limits and therefore, the provisions of Act 13 of 1972 are not applicable. The fourth issue was with regard to extending benefit of Section 20 (4) of Act 13 of 1972 and the benefit was denied that as the Act itself is not applicable therefore, the benefit of the aforesaid provision cannot be extended. All these findings were affirmed by the revisional court. 8. Challenging these findings first submission of learned counsel for the petitioner is that the petitioner had never received any notice terminating his tenancy and this was categorically denied in his written statement and in his oral statement also. It is not in dispute that the registry containing notice was returned back with an endorsement of refusal by the postal authority. In view of the decision of the Full Bench of this Court in the case of Ganga Ram Vs. Smt. Phoolwati 1970 ALJ 336 (FB) I do not find any legal infirmity in the aforesaid findings and no interference is warranted on this issue and the submission is liable to be rejected and is hereby rejected. 9. It was next submitted that in the present case the shop is within the Nagar Palika/Nagar Nigam limits and therefore, the provisions of Act 13 of 1972 are applicable. The third issue in this regard was framed by the trial court. 10. 9. It was next submitted that in the present case the shop is within the Nagar Palika/Nagar Nigam limits and therefore, the provisions of Act 13 of 1972 are applicable. The third issue in this regard was framed by the trial court. 10. I have perused the judgment and the record. 11. I find that there was categorical assertion on the part of the landlord that the shop is situated outside the Nagar Palika/Nagar Nigam limits and as such the provisions of Act 13 of 1972 are not applicable. As a documentary evidence certificate issued by the Gram Pradhan of Gaon Sabha Manjoorgarhi was filed wherein she certified that the shop of Guru Sharan father of the petitioners is situated in Manjoorgarhi Market, Village Ram Nagar and is outside the Nagar Palika/Nagar Nigam limits and the same is within Gaon Sabha Manjoorgarhi. The tenant appearing as D.W. 1 admitted the fact that the shop is situated within Gaon Sabha Manjoorgarhi and is in Village Ram Nagar and Gulab Devi is the Pradhan of Gaon Sabha Manjoorgarhi who has issued certificate produced by the plaintiff. He although stated that the shop is in the city, however, he in cross-examination also stated that he is not aware as to whether the shop is within the Nagar Palika/Nagar Nigam limits or not and also admitted that his shop and other houses are existing there and no house tax is paid. On this ground it was held that the shop is outside the Nagar Palika/Nagar Nigam limits and as per Section 1 of Act 13 of 1972 the provisions of Act 13 of 1972 are not applicable. 12. Before this Court learned counsel for the petitioner in support of his argument sought to dispute the location and identity of the shop as given in the plaint and as specified in the certificate of the Gram Pradhan. This issue is being raised for the first time before this Court and it was never disputed by the tenant either before the trial court or before the revisional court that the shop regarding which the certificate was issued by the Gram Pradhan was a shop different from the shop mentioned in the plaint. In such view of the matter, the distinction that is being sought to be carved out is liable to be rejected and is hereby rejected. 13. In such view of the matter, the distinction that is being sought to be carved out is liable to be rejected and is hereby rejected. 13. In such view of the matter, when the provisions of Act 13 of 1972 are not applicable, the benefit of Section 20 (4) of Act 13 of 1972 cannot be extended to the tenant therefore, on this issue also I do not find any legal infirmity in the order impugned herein. 14. This writ petition is devoid of merit and is, accordingly, dismissed. 15. At this stage, learned counsel for the petitioner prayed that the petitioner may be granted some time for vacating the shop in question. 16. 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 30.4.2018. (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. 1,000/-per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.4.2018 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. No order as to costs.