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2017 DIGILAW 579 (UTT)

Bheem Prakash @ Deepak v. Sri Anurag Sachdeva

2017-11-02

SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. This is a landlord’s revision under Section 25 of the Provincial Small Causes Courts Act, 1887, wherein, he has challenged the judgment dated 24th March, 2014, passed by the Judge Small Causes Courts/6th Additional District Judge, Dehradun in SCC Case No. 39 of 2008, Bheem Prakash Vs. Anurag Sachdeva, by virtue of which, the suit of the plaintiff revisionist for arrears of rent and recovery of possession against the defendant has been dismissed. 2. Brief facts leading to the institution of the proceedings before the Court below was that the plaintiff revisionist submitted in his plaint that the defendant respondent is a tenant of the property described as property bearing Municipal No. 50, Dharampur 1st, Dehraun (hereinafter to be called as tenement), in which, the defendant respondent was inducted as a tenant on a monthly rent of Rs.1000/-. 3. The contention of the learned counsel for the landlord before the Court below was that since the assessment of the tenement has taken place for first time in 1999-2004, the provisions of Act No. 13 of 1972, would not be applicable. He further submitted that in pursuance to the family settlement which has been arrived at on 29th July, 2007, of which the memorandum of settlement was written down on 31st July, 2007, the defendant has become the owner of the part of the property, thus, settled on 31st July, 2007, and hence, he would be treated to be as the sole landlord of the tenement which has fallen in his share on the basis of settlement dated 31.07.2007. At this stage, it would be relevant to mention that there is no controversy to the effect that there did existed the relationship of the landlord and tenant between the parties to the suit. 4. In the plaint, thus, submitted he pleaded that he needs the property, in question, to satisfy his personal requirement as the accommodation already available to him is insufficient to meet his personal requirement. He submitted that several requests were made to tenant but he did not acceded to it and kept on avoiding to vacate the premises. 5. 4. In the plaint, thus, submitted he pleaded that he needs the property, in question, to satisfy his personal requirement as the accommodation already available to him is insufficient to meet his personal requirement. He submitted that several requests were made to tenant but he did not acceded to it and kept on avoiding to vacate the premises. 5. Another ground, which was taken by the revisionist was to the effect that the defendant tenant has defaulted himself as he has remitted the rent till December, 2006 and has not paid any rent thereafter and as such the rent w.e.f. 01.01.2007 to 31st August, 2008, has fallen due assessed to the tune of Rs. 20,000/- which he is liable to remit. It has further been submitted that he does not want to continue the tenancy with respondent and, thus, by virtue of a notice issued under Section 106 of the Transfer of Property Act, he had terminated the tenancy on the expiry of the period provided therein for vacating the premises. In the pleading, the landlord has come out with the case that since the notice dated 28th August, 2008, was served upon the respondent tenant on 5th September, 2008 and since he has not vacated the premises within a period of 30 days from the date of service of notice, hence he was entitled for damages at the rate of 100/- per day till the actual vacant possession is handed over to him. 6. It was the case of the landlord that since the period as provided in the notice has expired and the condition of payment of rent as claimed was not complied with, his tenancy stands terminated by the implication of law w.e.f. 30th September, 2008, but, since he has not vacated the premises, he deserves to be vacated through decree of eviction. 7. To support his contention in the pleading as raised by the revisionist in his plaint, he has placed on record the documents by virtue of list 7-C and 8-C, as filed by him which contained the copy of the notice dated 28.08.2008 as well as the postal receipt of the same date and the UPC paper No. 11-C and 12-C of registered AD. 8. In response to the notice issued by the Court, the defendant respondent has put in appearance and filed his written statement denying the notice dated 28.08.2008. 8. In response to the notice issued by the Court, the defendant respondent has put in appearance and filed his written statement denying the notice dated 28.08.2008. In response thereof he admitted the fact of tenancy and the rate of rent as settled between them. 9. But he denied the fact as pleaded by the landlord that the provisions of Act No. 13 is not applicable, and on the contrary he pleaded that the provision of Act No. 13 of 1972 will continue to apply for the reasons that the property was purchased by the landlord way back in 1959, and the construction on the said vacant land thus purchased by the landlord was assessed for the first time in 1963 as would be apparent from the assessment placed on record by way of Paper No. 59-C and, thus, he contended that since the construction being an old construction since 1963, the provisions of Act No. 13 of 1972 would be applicable and thus, the proceedings before the P.S.C.C. Act would not apply. 10. He further submitted that the need as expressed by the landlord with regard to the tenement in question is artificial and concocted, whereas actually there exists no bona fide need of the landlord and hence on that premise the tenement cannot be vacated. 11. So far as the plea raised by the landlord pertaining to the arrears of rent due to be paid, he submitted that he had paid the rent till December, 2006, to the predecessor owner Jai Prakash and he further submitted that the rent pertaining to the period thereafter could not be remitted on account of the fact that the plaintiff has never conveyed to the tenant that he had become the owner of the property in question and since the information pertaining to the ownership was parted to the tenant for the first time on 1st September, 2008 and the notice was received prior in time on 28.08.2008, he cannot be treated as to be a defaulter and, as such, his tenancy cannot be terminated on the basis of the notice dated 5th August, 2008. 12. 12. In response to para 7 of the plaint, in which, the landlord revisionist has pleaded pertaining to the arrears, the tenant replied in relation to the rent claimed by the landlord he has already deposited the rent and, thus, there is no cause of action to the landlord to file the present proceedings before Provincial Small Causes Court. 13. It is the case of the defendant respondent that the theory of alleged family settlement dated 31st July, 2007 (which finds place as paper No. 33-C in the record of the court below), was never supplied to him, as such, since there had been no demand of rent prior to the filing of the suit, no tenancy could be terminated by the notice dated 28.08.2008. 14. He further pleaded that he would be entitled for the benefit of Sub-section (4) of Section 20 as he has already remitted the rent as claimed by the notice and the notice terminating the tenancy deserves to be set aside and prayed that the proceedings may be turned down. 15. Before the Court below, the parties to the proceedings have led their respective evidence to substantiate their case and in relation thereto the learned counsel for the plaintiff has placed on record the assessment of 1999, the settlement of 31st July, 2007 and he has also placed reliance on paper No. 28-C which he has submitted to the MDDA, which was a copy of proposed map for construction which dates back to 9th August, 1995, when it was sanctioned. He submitted that since this map was submitted by Jai Prakash, the predecessor owner with regard to the proposed construction of 162.29 mtrs. which was sanctioned by the MDDA and since the first assessment happens to be 1st April, 1999 to 31St March, 2004, the provision of Act No. 13 of 1972 would not be applicable. 16. The respondent had filed the assessment by way of paper No. 58-C and 266-C pertaining to 1959 onwards. which was sanctioned by the MDDA and since the first assessment happens to be 1st April, 1999 to 31St March, 2004, the provision of Act No. 13 of 1972 would not be applicable. 16. The respondent had filed the assessment by way of paper No. 58-C and 266-C pertaining to 1959 onwards. On the exchange of the pleading, the learned Trial Court framed five issues : ^^1- D;k oknh }kjk fdjk;k nsus esa pwd dh x;h \ ;fn gka rks izHkkoA 2- D;k izfroknh dh vksj dksbZ fdjk;k cdk;k gS \ tSlk fd okn i= dh pj.k la0 esa vfHkdfFkr gSA 3- D;k m0i0vf/kfu;e la0 13] 1972 ds izkfo/kku izLrqr ekeysa esa ykxw ugha gksrs gS\ 4- D;k izfroknh /kkjk 20¼4½ m0i0vf/kfu;e la0 13] lu 1972 dk ykHk ikus dk vf/kdkjh gS \ 5- vuqrks’k A** 17. Today, when the case was being argued, primarily, the learned counsel for the revisionist has confined his argument to the effect as to whether the benefit of Section 20 (4), would be made available to the respondent or not. He tried to submit that in view of the pleadings which has been raised by the respondent tenant, wherein, he admits the availability of accommodation to him since having settled with him, hence the proviso of Sub-section (4) of Section 20 will come into play, which provides that if the tenant has built or acquired a vacant building by way of a residential accommodation, he would not be entitled for the benefit of Sub-section (4) of Section 20, the proviso to Sub-section (4) of Section 20 reads as under :- “Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.” 18. The learned counsel for the revisionist has further submitted that para materia provision is contained under the proviso dealing with the situation where the tenant builds or acquires a building is restrain from raising any ground of defence is also being contemplated under Subsection (3) of Section 12 of the Act as well as under the Explanation to Section 21 (1) (a) of the Act No. 13 of 1972. 19. 19. Since the matter does not relate to the impact of provision of Section 12 and Section 21 of Act No. 13 of 1972, the said argument extended by the learned counsel for the revisionist is not required to be dealt with, because his case before the Court below was confined only to the impact of proviso under Sub-section (4) of Section 20. 20. On a precise reading of the proviso to Sub-section (4) of Section 20 of the Act with which we are concerned with instant case, as it pertains to the issue No. 4 as framed by the Court below, would not be sustainable as far as the argument of the learned counsel for the revisionist is concerned. 21. This Court feels that the intention of the proviso is that when a tenant builds or acquires in a vacant state or has got vacated after acquisition any residential building in a municipal area, the benefit would not be available to the tenant. It is not the case of the revisionist that after the creation of the tenancy or during its subsistence, the tenant has built or acquired any residential accommodation in a municipal area. Meaning thereby, the factum of building or acquiring is an act which has to chance after the creation of tenancy. Since, it is not the case of the revisionist and it is not the pleading before the Court below, that after the creation of tenancy, the tenant has acquired any building or built any building, the proviso of Sub-section (4) of Section 20 as interpreted by the revisionist is absolutely untenable and it cannot be accepted by this Court. 22. In response to his argument, the learned counsel for the revisionist further submitted that as would be apparent from the pleading before the Court below, as dealt with by the Trial Court in the following manner. 22. In response to his argument, the learned counsel for the revisionist further submitted that as would be apparent from the pleading before the Court below, as dealt with by the Trial Court in the following manner. ^^oknh ds fo}ku vf/koDrk }kjk cgl djh xbZ fd izfroknh us Hkh viuh ftjg esa Lohdkj fd;k fd mldh nsgjknwu esa laifRr gS tc izfroknh us ftjg esa dgk fd ^^gekjh ikfjokfjd laifRr ch0 202 usg: dkyksuh] nsgjknwu gS ogka esjs nks HkkbZ o ekrk th jgrh gSaA og laifRr firkth us yh Fkh o muds ejus ds ckn ekrk th dh gks xbZ] mDr laifRr esa esjk Hkh fgLlk gS] gekjk dHkh caVokjk ugha gqvk gSA** oknh ds fo}ku vf/koDrk }kjk cgl dh xbZ gS fd izfroknh bl izdkj /kkjk 20¼4½ m0iz0 vf/kfu;e 13@1972 dk ykHk ikus dk vf/kdkjh ugha gSA U;k;ky; oknh ds mijksDr cgl ls lger ugha gS D;ksfd /kkjk 20¼4½ ds izksokbZtks ds varxZr izfroknh ugha vkrk A** 23. The case of the landlord revisionist before the Court below that the defendant, since, in his cross examination has admitted the fact that he has got ancestral property being the property No. B-202, Nehru Colony, Dehradun, in which, his two brothers and mother are residing, and which was purchased by his father and after his death, it has devolved on his mother and he has got a share in it, it would be deemed that proviso of Section-section (4) of Section 20 would be attracted. 24. The argument extended by the learned counsel for the revisionist is not acceptable, being a fallacy, for the reason, that on a scrutiny of the said statement as recorded by the respondent tenant in his cross examination, it only refers to ancestral property, which was purchased by his father and, in which, all the brothers are residing with the mother. What is relevant is that in the cross examination, it is an admitted fact that the said property, no partition has taken place. If that be the case, it would not fall to be within the proviso of Sub-section (4) of Section 20 of the Act and cannot be treated to be that respondent has either “built or acquired” the property as the property being ancestral was pre-existing prior to the creation of tenancy and as it was purchased by the father. If that be the case, it would not fall to be within the proviso of Sub-section (4) of Section 20 of the Act and cannot be treated to be that respondent has either “built or acquired” the property as the property being ancestral was pre-existing prior to the creation of tenancy and as it was purchased by the father. Thus, the said argument as extended by the learned counsel for the revisionist is not accepted by this Court. 25. The Allahabad High Court in the case of Pearey Mohan and others Vs. 9th Additional District Judge, Aligarh and others reported in 1995 All.L.J. 897 has dealt with as to what would constitute to be the meaning of built. It has been inferred by the Court that the property has to be built and brought into existence. 26. Dealing with the second argument extended by the revisionist pertaining to the issue No. 3 of the applicability of Act No. 13 of 1972. To support his contention that provision of Act No. 13 of 1972, would not be applicable on the premise that the construction happens to be a new construction, the learned counsel for the revisionist has placed reliance on the assessment of 1999 to 2004, for the purposes of showing that since it was assessed for the first time in 1999 to 2004, it would be deemed to be a new construction and Act No. 13 of 1972 would not be applicable, consequently, the SCC Suit would be maintainable. 27. In extension to his arguments on the said aspect, he further submitted that the construction happens to be the new one because his predecessors has submitted a plan to the MDDA for sanctioning a map in 1995, hence, it would be treated as to be a construction which was raised after 1995, it would be dealt with as to be a new construction, which would be ousting the applicability of Act No. 13 of 1972. This argument of the learned counsel for the revisionist is refuted by the learned counsel for the respondent tenant. This argument of the learned counsel for the revisionist is refuted by the learned counsel for the respondent tenant. He submits that the argument as extended by the revisionist is by mis-leading and contrary to the evidence on record and non-placement of the correct facts for the reason that he submits that before the Court below, he has placed on record the assessment right from 1959 onward which was at that time a vacant land and, thereafter, the assessment of construction was don for the first time in 1963, which was a constructed house and, as such, since the construction was existing since 1963 and the tenancy too having been created much prior to the cut off provided under the Act No. 13 of 1972, as such, the provision of Act No. 13 of 1972 would be applicable. Under the Act No. 13 of 1972, in the exemption clause, contained under Sub-section (2) of Section 2, in its very specific terms has provided, the cut off as to be 26th April, 1985. Apparently, the evidence which has been brought on record by the respondent tenant, the construction since being prior in time, this Court holds that the provisions of Act No. 13 of 1972 would be applicable. 28. Learned counsel for the revisionist has placed reliance in the case of Smt. Mundri Lal Vs. Smt. Sushila Rani and another reported in 2007 (69) ALR 477 wherein, His Lordship’s of the Hon’ble Apex Court while considering the exemption provision provided under Sub-section (2) of Section 2 pertaining to the applicability of the Act had in para 2 were considering as to what would be the effect where substantial addition is made to an existing building. It has been observed, based on the provisions of Sub-clause (b) of the explanation that when the existing building becomes a minor part thereof of the whole building, it shall be deemed to be completed on the date of completion of the said addition. This is not the case which has been ever argued or pleaded or established by the revisionist. Rather to the contrary, the application which has been submitted under Section 14 of the Urban Planning and Development Act for raising construction or alteration pertains to a very small area and, as such, the Clause (b) of the exemption provided under the explanation to Section 2 (a) will not be attracted. Rather to the contrary, the application which has been submitted under Section 14 of the Urban Planning and Development Act for raising construction or alteration pertains to a very small area and, as such, the Clause (b) of the exemption provided under the explanation to Section 2 (a) will not be attracted. Learned counsel for the revisionist has utterly failed to bring the case within the ambit of the proposition as laid down by the Hon’ble Apex Court. 29. No other ground has been argued or pressed by either side of the parties and in view of the fact that the argument extended by the learned counsel for the revisionist in the light of the proviso of Sub-section (4) of Section 20 as already been held out to be not acceptable coupled with the fact that the deposit of rent has already been made, the respondent would be entitled for the benefit under Subsection (4) of Section 20 of the Act. Furthermore, since, according to the evidence on record, the construction being an old construction assessed for the first time in 1963, the provision of Act No. 13 of 1972, would be applicable and, thus the present proceedings were not maintainable. 30. Accordingly, the revision is dismissed. No order as to cost. Without prejudicing the right of the revisionist to avail an appropriate remedy if so available to him in accordance with law.