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Allahabad High Court · body

2017 DIGILAW 2764 (ALL)

Ram Niwas Upadhyay v. Harish Chand

2017-11-29

VIVEK KUMAR BIRLA

body2017
JUDGMENT : Vivek Kumar Birla, J. Heard, Sri Kshitij Shailendra, learned counsel for the petitioners. 2. Present petition has been filed for quashing the judgment and order dated 12.12.2011 passed by the Additional Civil Judge (Senior Division)/Judge, Small Causes Court, Moradabad in SCC Suit No. 3 of 1998 (Harish Chandra v. Ram Niwas and another) as well as judgment and order dated 28.7.2017 passed by Additional District Judge, Court No. 8, Moradabad in SCC Revision No. 2 of 2012 (Ram Niwas and another v. Harish Chandra). 3. Suit for rent and ejectment was filed by the landlord-respondent against the tenant-petitioner on the ground that he is the owner of the shop in question situate at Bazar Kot Purvi Nagar, Tehsil Sambhal, Moradabad. It was asserted that the property was purchased by him by registered sale deed dated 21.8.1997 from Vidyadhar and that the shop was constructed in the year 1987 and therefore, the provisions of the Act 13 of 1972 are not applicable in the present case. A notice dated 26.12.1997 terminating the tenancy was given that the tenant was given the shop on rent in question @ Rs. 500/- per month plus house tax and water tax and that the tenancy starts monthly from 22nd of the month and that after 20.9.1997 till 21.12.1997 the rent was not paid by the tenant, which he refused to accept and the same was returned with the endorsement of refusal and thereafter, the present suit was filed. The suit was decreed vide judgment and order dated 12.12.2011 by the trial court and the revision filed by the tenant against the same was also dismissed vide order dated 28.7.2017. 4. Submission of learned counsel for the petitioners is that the shop in dispute is an old construction and as such the provisions of the Act 13 of 1972 are applicable in the present case. He further submitted that no notice was ever served by the landlord and service by refusal is a manipulated service and the same was not proved by providing the Postman concerned before the court below and therefore, service of notice by refusal cannot be deemed to have been proved against the defendant. The other findings have also been challenged. He further submitted that no notice was ever served by the landlord and service by refusal is a manipulated service and the same was not proved by providing the Postman concerned before the court below and therefore, service of notice by refusal cannot be deemed to have been proved against the defendant. The other findings have also been challenged. However, emphasis has been given on the grounds that the Act 13 of 1972 is applicable in this case as the assessment order placed before the court below was, In fact, not the first assessment, and that as the Act 13 of 1972 would be applicable, therefore, the petitioners are entitled for benefit of deposit made under Section 20(4) of the Act. 5. In support of the argument it was highlighted that initially the property belonged to Om Prakash, who sold the property to one M.K. Arya and thereafter the same was sold to Vidyadhar, who sold to the present landlord in the year 1997, whereon the shop was existing and it was submitted that the finding of the trial court that Vidyadhar purchased the open land and constructions were raised thereafter, is therefore, perverse. 6. I have considered the submissions and have perused the record. 7. The trial court framed three issues. First issue was as to whether the same was served or not; second issue was as to whether the provisions of the Act 13 of 1972 are applicable in the present case or not and as to whether there is any default in making payment and if yes, what would be the effect; third issue was as to whether Kamal Prakash had surrendered the tenancy in favour of the plaintiff or not. 8. On issue no. 1 regarding service of notice, a copy of the notice and the registry receipt was placed on record and the notice was returned with the endorsement 'refused'. The aforesaid notice was admittedly sent on the correct address. In the cross examination the tenant had admitted that the address given on the registered post is correct and in case any letter is send on this address he will receive the same. The aforesaid notice was admittedly sent on the correct address. In the cross examination the tenant had admitted that the address given on the registered post is correct and in case any letter is send on this address he will receive the same. Full Bench of this Court in the case of Ganga Ram v. Smt. Phoolwati 1970 ALJ 336 (FB), has held if that the notice sent by registered post to the tenant returned with the remark 'refused' the court is right in raising presumption under section 114 of the Indian Evidence Act in favour of the landlord. In such view of the matter, in the present case also when the notice was sent to the correct address and was returned with the endorsement 'refused', as admitted by the tenant himself that the same was sent on the correct address and in case any letter is send on this address he will receive the same, I do not find any legal infirmity in the findings so recorded by the trial court. 9. Insofar as the issue no. 2 regarding applicability of the Act 13 of 1972 assertion of tenant, as asserted in the written statement also, is that the shop is about 30 years old meaning thereby the same was constructed in the year 1968 as the suit was filed in the year 1998 and that electricity connection in the name of Vidyadhar is also continuing, who was doing business on this shop. Certain electricity bills were also produced in support of his contention and therefore, submission is that the shop is old. From the record it appears that the owner of the land was one M.K. Arya, who may have permitted the then tenant to put a wooden kiosk, whereon he may have put one electricity meter, (though it is not proved by any evidence of that period/point of time) and thereafter M.K. Arya sold the land to Vidyadhar on 31.12.1986. Thereafter, Vidyadhar constructed two shops in the year 1987. First assessment of these two shops is of the year 1989-90. A copy of the sale deed executed by M.K. Arya was also placed on record as paper no. 79(c). Thereafter, Vidyadhar constructed two shops in the year 1987. First assessment of these two shops is of the year 1989-90. A copy of the sale deed executed by M.K. Arya was also placed on record as paper no. 79(c). In this sale deed there is a clear mention that land is being sold and the trial court has also found that the electricity bills that have been produced by the landlord, are of the year 1989 and there is no bill of the period prior to 1981-82. The tenant had also stated before the court that in the assessment of the year 1979-80 the name of Om Prakash was registered in the municipal assessment but he could not clarify as to how Om Prakash was in occupation of the same, whereas the land was initially of M.K. Arya only, which was sold in the year 1987. Certain other documents being paper no. 191 (c), 196(c) and 197(c) were also placed on record to assert that all such assessment had taken place prior to 1987 and they were related to wooden kiosk. Another document was placed in the shape of map dated 8.7.1981, which was prepared by Raj Kumar in the name of M.K. Arya but it was not proved that as to whether the shop was constructed in the year 1981 and it was also not disclosed as to who is Raj Kumar. The tenant in his cross examination also stated that the shop was not constructed in front of him. Even the witnesses produced by the tenant could not prove that the shop was constructed prior to 1987. In his cross examination, although it was stated by the tenant that he does not remember the date of execution of rent deed however, he admitted that the shop was started in the year 1987 and he had given some advance in the year 1986. Several other documents have been placed on record but the finding regarding first assessment dated 3.2.1990 could not be demolished by the tenant. 10. The findings recorded by the trial court are based on documentary evidence and on close appreciation of oral evidence on record as well. All such issues were affirmed in revision filed by the tenant and cannot be re-appreciated by this Court and this Court do not find that such findings are perverse in any manner. 10. The findings recorded by the trial court are based on documentary evidence and on close appreciation of oral evidence on record as well. All such issues were affirmed in revision filed by the tenant and cannot be re-appreciated by this Court and this Court do not find that such findings are perverse in any manner. Once it is proved that the Act 13 of 1972 are not applicable in the present case, no benefit of Section 20(4) of the Act can be extended to the petitioner. 11. I have considered all such issues in my earlier judgment in the case of Pramod Kumar and another v. Shreyans Kumar Jain 2016 (1) ARC 460 . 12. All such findings have been appreciated on the basis of documentary and oral evidence on record and therefore, I do not find any legal infirmity in the orders impugned herein. 13. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited. 14. In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below in the present petition and the same is accordingly dismissed. 15. 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. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.6.2018 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. 16. No order as to costs.