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2017 DIGILAW 3038 (ALL)

Irshad Alam v. Ali Ahad

2017-12-22

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard Sri Pramod Kumar Srivastava, learned counsel for the tenant-revisionist as well as Sri Atual Dayal, learned counsel for the landlord-opposite party and perused the record. 2. Present revision has been filed challenging the impugned judgment and decree dated 7.12.2015 passed by the Additional District Judge/Judge Small Causes Court, Kanpur Nagar in Suit No. 55 of 2008 (Ali Ahad and another vs. Irshad Alam). 3. Brief facts of the present case are that the landlord-plaintiff (opposite party herein) filed SCC suit against the tenant-defendant (revisionist herein) for rent and eviction seeking eviction of defendant from the shop in question being Shop No. 100/484, Colonelganj, Kanpur Nagar on the ground that the defendant is tenant in the shop in question w.e.f. 1.9.1992 on rent payable at the rate of Rs. 600/-per month plus water tax etc. It was alleged that because of new construction of the shop in question in the year 1990, the provisions of Act No. 13 of 1972 (hereinafter referred to as the 'Act') are not applicable in the present case. It was stated that despite of the notice dated 5.3.2008, the arrears of rent were not paid and the shop in question was not vacated. It was stated that the aforesaid notice dated 5.3.2008 was returned with the endorsement of 'refused' by the postal department on 10.3.2008 and notice sent through certificate of posting was personally served on the defendant. Hence the suit. 4. The defendant contested the suit and filed his written statement wherein it was specifically pleaded that shop in question is an old construction and provisions of the Act are fully applicable. It was further asserted that the defendant is tenant at the rate of Rs. 200/-per month inclusive of all taxes only and upto date rent has been paid to the plaintiff but he did not give any receipt of rent. It was also stated that the notice sent by the plaintiff was duly replied by him and he has never refused to receive any notice. 5. Oral as well as documentary evidence was given by both the sides. The plaintiff, in particular filed copy of the notice dated 5.3.2008, sealed cover receipt after endorsement of refusal, notice dated 28.11.2007, notice dated 14.12.2007, order passed by the Kanpur Development Authority (hereinafter referred to as the 'KDA”) and the original map sanctioned by the KDA. 5. Oral as well as documentary evidence was given by both the sides. The plaintiff, in particular filed copy of the notice dated 5.3.2008, sealed cover receipt after endorsement of refusal, notice dated 28.11.2007, notice dated 14.12.2007, order passed by the Kanpur Development Authority (hereinafter referred to as the 'KDA”) and the original map sanctioned by the KDA. The plaintiff appeared as PW 1 and was cross-examined. The defendant appeared as DW 1 and he was also cross-examined. The defendant in documentary evidence produced various tender receipt regarding deposit of rent and also filed panchshala of the year 1987 regarding building no. 100/484, Colonelganj, Kanpur Nagar. 6. Six issues were framed by the trial Court. Issue no. 1 whether defendant is tenant at the rate of Rs. 600/-per month or not, was decided in favour of the defendant holding that the plaintiff has failed to prove the rent payable at the rate of Rs. 600/-per month and as such, the rate of rent was held to be Rs. 200/-per month as asserted by the defendant. Issue no. 2 whether the defendant was liable to pay 18% water tax and sewer charge apart from the rent, was decided against the plaintiff holding that all such taxes are included in the rent payable at the rate of Rs. 200/-per month and the taxes were not payable separately. Issue no. 3 was as to whether the defendant is in default of rent since 1.6.2004 and it was found that he has committed default in making payment of rent. Issue no. 5 whether the provisions of the Act 1972 are applicable in the present case or not, was decided against the defendant by holding that the Act is not applicable as the construction of the building is of the year 1990 and in cross-examination the defendant has admitted that the building was constructed in the year 1990 or 1991. On the basis of this finding, the benefit of deposit of rent made by the defendant was not extended to the defendant as the Act itself was found to be not applicable. Issue no. 4 was as to whether the notice dated 28.11.2007 given by the landlord to the tenant is valid or not. While deciding this issue, discussions was made noticing the date of notice to be 5.3.2008, which was deemed to be served on defendant on the basis of the endorsement of 'refused'. Issue no. 4 was as to whether the notice dated 28.11.2007 given by the landlord to the tenant is valid or not. While deciding this issue, discussions was made noticing the date of notice to be 5.3.2008, which was deemed to be served on defendant on the basis of the endorsement of 'refused'. The trial Court also found that the defendant was aware of the facts that his tenancy is being terminated and as such, the service of notice was found to be valid. Issue no. 6 was regarding relief, if any, and it was found that the plaintiff was entitled for the relief as claimed and therefore, the suit was allowed. 7. Submission of the learned counsel for the tenant-revisionist is that the issue regarding applicability of the Act has wrongly been decided by the Court below and even the admission of the tenant that the building was constructed in the year 1990 or 1991 is of no help as the burden to prove the construction of the building is squarely on the landlord. He has placed reliance on the judgment of this Court in Smt. Vijay Lakshmi Jain vs. Rameshwar Dayal Gupta, 2001 (2) AWC 881 in support of his argument. Second submission of the learned counsel for the revisionist is that the issue regarding validity of notice dated 5.3.2008' was not framed and in fact, the issue was framed regarding notice dated 28.11.2007' and as such, no opportunity was afforded to the revisionist to lead evidence regarding validity of notice dated 5.3.2008 whereas the finding recorded was in respect to validity of notice dated 5.3.2008, which is wholly incorrect and the matter is liable to be remanded back. On this issue itself, it was submitted that an application has been moved by the tenant admitting that a mistake has been committed in deciding the issue and as such, the matter may be remanded back to the Court below but the same has now been withdrawn by the landlord. It was further submitted that even if this application has been withdrawn, the effect of the affidavit filed in support of this application has to be considered whereby it has been admitted that a mistake has occurred in deciding the issue regarding notice. It was lastly submitted that in any case the revisionist is entitled to the benefit of Section 114 of the Transfer of Property Act, 1882. 8. It was lastly submitted that in any case the revisionist is entitled to the benefit of Section 114 of the Transfer of Property Act, 1882. 8. Per contra, Sri Atul Dayal, learned counsel appearing for the landlord-opposite party submits that apart from the admission of the tenant himself that the building was constructed in the year 1990 or 1991, it is not in dispute that he came in possession subsequently in the year 1992 and apart from that the landlord has produced copy of map sanctioned by the KDA on 22.12.1989 and the permit form of the same date and the original map was produced before the Court below and that the construction so raised was absolutely new which was raised after completely demolishing the old structure, therefore, there is no infirmity in the decision of the Court below on this issue. It was next submitted that it is only a typing mistake whereby the date of notice has been incorrectly mentioned as 28.11.2007' in place of 5.3.2008' and this mistake can be rectified even by this Court. For this purpose, he has placed reliance on a judgment of this Court rendered in the case of Laxmi Kishore and another vs. Har Prasad Shukla, 1981 ARC 545 (DB). Therefore, he submits that it is for this reason the application filed by the earlier counsel was got dismissed as withdrawn. He further stated that in any view of the matter it is a part of the record that the plaint case was based on notice dated 5.3.2008' as clearly mentioned in paragraph 3 of the plaint, which was served on the tenant by way of endorsement 'refused' on 10.3.2008. Attention was drawn to the paragraph 4 of the written statement filed by the tenant wherein the contents of paragraph 3 of the plaint have been denied and it has been stated that the notice was duly replied by the tenant and he has not refused to accept any registered post notice and that the notice received by him was duly replied. It was submitted that no reply to the specific averment made in paragraph 3 that the notice dated 5.3.2008 was not served, was given in the aforesaid reply. It was submitted that no reply to the specific averment made in paragraph 3 that the notice dated 5.3.2008 was not served, was given in the aforesaid reply. It is submitted that since the initial notice was dated 28.11.2007, therefore, it is while framing the issue a mistake has crept in, whereas since the case itself was based on notice dated 5.3.2008, the issue was specifically decided in respect thereof and therefore, it cannot be said that this typing mistake of date is fatal to the decision of the Court below. He further submits that once application to remand back the matter to the trial Court is withdrawn, the affidavit filed in support of the application also goes and its effect cannot be considered. He further submits that even otherwise in paragraph 8 of the rejoinder affidavit, while denying the contents of paragraph 8 of the counter affidavit, it has been specifically stated that there is no question of remand of the case but in fact revision is liable to be allowed and judgment passed by the Court below is liable to be set aside and as such, the question of considering filing of the application and the affidavit filed in support thereof is no longer open to be considered. Replying to the argument in regard to the protection of Section 114 of Transfer of Property Act, it was submitted that admittedly in the present case, there is no written agreement between the parties and therefore, in absence of there being any written agreement between the parties containing the forfeiture clause, the same would not apply in the present case. 9. I have considered the rival submissions and perused the record. 10. Coming to the applicability of the Act first, placing reliance on the judgment of Smt. Vijay Lakshmi Jain (supra), it was submitted by the learned counsel for the revisionist that the landlord, who seeks exemption, must prove that exemption. The burden is on him to prove that the building is out of its ambit and it is not for the tenant to prove that the building has been constructed beyond of period of forty years but it is for the landlord to make out that the construction has been completed within forty years of the suit. The burden is on him to prove that the building is out of its ambit and it is not for the tenant to prove that the building has been constructed beyond of period of forty years but it is for the landlord to make out that the construction has been completed within forty years of the suit. It is submitted that oral evidence is inconsequential being second hand testimony and even the recital in rent deed that there was a new construction or admission by the tenant is of no help and it is for the owner to prove as to when the building was constructed by placing documentary evidence on record. Submission, therefore, is that even if the tenant has admitted in his cross-examination that the building was constructed in the year 1990 or 1991, the same is of no help to the landlord and that the evidence given by the landlord in the shape of map sanctioned on 22.12.1989 and the permit form of the same date is of no help to the case as no assessment order was submitted. 11. Learned counsel for the revisionist has taken me through various paragraphs of the judgment in Smt. Vijay Lakshmi Jain (supra). On a close scrutiny of the aforesaid judgment, I find that in paragraph 8 of the aforesaid judgment, there is a mention that in that case there was absolutely no document on record filed either by the landlord or by the tenant to establish when the tenanted accommodation came into being and there was only oral testimony of the parties. 12. Coming to the facts of the present case, it is not in dispute that revisionist became tenant of the property in dispute w.e.f. 1.9.1992. The landlord has produced in original the map sanctioned by the KDA on 22.12.1989 and has also produced the original permit form of the same date. The landlord had made categorical averment that after demolishing the entire old house, absolutely new construction was raised. In his cross-examination, the tenant has admitted that the house in question was constructed in the year 1991. The landlord had made categorical averment that after demolishing the entire old house, absolutely new construction was raised. In his cross-examination, the tenant has admitted that the house in question was constructed in the year 1991. Thus, apart from the oral admission on the part of the tenant, which is best piece of evidence, still there was documentary evidence to show that the map was got sanctioned on 22.12.1989 and here it is not in dispute that if the property is falling within the jurisdiction of Development Authority, construction could have been raised only after the map is sanctioned by the authority. Contrary to this documentary evidence, nothing was placed on record by the tenant in support of his argument. In case first assessment was not produced by the landlord, the tenant could have produced any documentary evidence of suitable nature to indicate that in fact construction was old. On the contrary, there is an admission that the house in question was constructed in the year 1990 or 1991. Thus, in the totality of the circumstances of the case, I do not find that the finding recorded by the court below on this issue is perverse or suffers from any legal infirmity in any manner or suffers from any jurisdictional error so as to attract any interference by this Court. 13. Now coming to the question of issue of validity of the notice, submission of the learned counsel for the tenant-revisionist is that issue was framed regarding validity of notice dated 28.11.2007' and the issue has been decided regarding notice dated 5.3.2008' and therefore, no opportunity was afforded to the tenant to rebut the same. It is not in dispute that in paragraph 3 of the plaint, the date of notice has been categorically mentioned as 5.3.2008 and the entire case is based on the aforesaid notice. Reading of paragraph 3 of the plaint clearly indicates that arrears of rent amounting to Rs. 27,000/-for the period 1.6.2004 to 29.2.2008 at the rate of Rs. 600/-per month and water and sewerage tax amounting to Rs. 20,088/-for the period 1.9.1992 to 29.2.2008 at the rate of 18% has been demanded. The service of notice by way of endorsement 'refused' on 10.3.2008 has been categorically stated. 27,000/-for the period 1.6.2004 to 29.2.2008 at the rate of Rs. 600/-per month and water and sewerage tax amounting to Rs. 20,088/-for the period 1.9.1992 to 29.2.2008 at the rate of 18% has been demanded. The service of notice by way of endorsement 'refused' on 10.3.2008 has been categorically stated. Thus, it is very much clear that once the demand of rent was made for the period 1.6.2004 to 29.2.2008, such demand could not have been raised pursuant to the notice dated 28.11.2007, which was give about four months prior to notice dated 5.3.2008. Perusal of paragraph 4 of the written statement would also clearly indicate that no specific reply regarding notice dated 5.3.2008 has been given by the revisionist, not even by specifically mentioning the date of notice to be 5.3.2008, which was not received by him. Only a general statement has been made that he has never refused to accept the notice and on the contrary, it has been stated that the notice sent by the landlord was duly replied by him. Therefore, it is very much clear that by the notice dated 28.11.2007 the arrears of rent and taxes up to the period of 29.2.2008 could not have been demanded and reply in fact was to the notice dated 28.11.2007 and therefore, even reply could not have included reply to the demand upto 29.2.2008. 14. The object of reference of such pleadings made in the plaint and written statement is to highlight the fact that the suit itself was based on the notice dated 5.3.2008 and there being specific pleadings, it can be safely concluded that there was no confusion about the case of the landlord to which evasive reply was given by the tenant in written statement and thus, it is only the date of notice, which has been incorrectly mentioned as 28.11.2007 whereas the correct date is 5.2.2008 and in case this mistake of date is corrected, the finding on issue no. 4 will have to be considered as such. It is not in dispute that copies of both the notices dated 28.11.2007 as well as 5.3.2008 were filed before the Court below and they have been numbered also. It may be noticed that in reply, the revisionist has not given the date of notice and date of reply that was given by him. It is not in dispute that copies of both the notices dated 28.11.2007 as well as 5.3.2008 were filed before the Court below and they have been numbered also. It may be noticed that in reply, the revisionist has not given the date of notice and date of reply that was given by him. It may also be noticed that after framing of such issue, if the date of notice was not correctly mentioned in the issue, no objection was raised by the tenant particularly in view of the fact that the case is pending since the year 1998. 15. Further, a perusal of the reply dated 14.12.2007 given by the tenant to the landlord in reply to notice dated 28.11.2007 clearly indicates that demand of rent of arrears was only with regard to arrears of rent upto 31.10.2007, therefore, the facts of subsequent notice and earlier notice were different. Insofar as the subsequent notice is concerned, only in one line it is stated that the same was not received. It is on record that the same was returned with the endorsement of 'refused' by the postal department. The law is well settled in this regard that if such notice is returned by the postal authority with the endorsement of 'refusal', the same shall be deemed to be a valid service of notice. In such view of the matter, I find that a clerical mistake has occurred in the date of notice while framing issue no. 4, which should be 5.3.2008 (and is taken as such) in place of 28.11.2008 but the issue has rightly been decided in regard to notice dated 5.3.2008, which was returned with the endorsement 'refused' on 10.3.2008 and as such, the same was a valid notice particularly in view of the fact that the tenant was aware of the intention of the landlord in view of earlier notice dated 28.11.2007, which was replied by him. Thus, I do not find any legal infirmity or jurisdiction error on the issue regarding validity of notice and date of notice is taken as 5.3.2008 and not 28.11.2007 as mentioned in the issue no. Thus, I do not find any legal infirmity or jurisdiction error on the issue regarding validity of notice and date of notice is taken as 5.3.2008 and not 28.11.2007 as mentioned in the issue no. 4 framed by the trial Court as from pleadings of the parties and the decision of the trial Court, it is very much clear that all were aware of the fact that it is all about the notice dated 5.3.2008 and not about the notice dated 28.11.2007. Once this mistake stands corrected, everything fall in line and thus, there is no need to remand back the matter. 16. Now coming to the argument of learned counsel for the revisionist regarding applicability of Section 114 of the Transfer of Property Act, suffice it to note that admittedly there was no written agreement in the present case with forfeiture clause. As such, Section 114 of the Transfer of Property Act would have no application in the present case. Although no issue regarding default in rent was raised, however it is needless to point out that once the Act itself is not applicable, the question of grant of any benefit of any such deposit can not be extended to the tenant. 17. 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. 18. 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. Vs. Dilbahar Singh, (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. 19. 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. 20. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant-revisionist before the Court below, it is provided that: (1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.6.2018. 20. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant-revisionist before the Court below, it is provided that: (1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.6.2018. (2) The tenant-revisionist 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-revisionist 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-revisionist 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-revisionist 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-revisionist 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 revisionist, he shall also be liable for contempt.