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2018 DIGILAW 1170 (ALL)

Ram Prakash Gupta v. Ali Husain

2018-05-09

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. This petition has been filed for quashing the order dated 11.08.2015 passed by Judge, Small Causes Court in SCC Suit No. 10 of 2011 (Ali Husain Vs. Ram Prakash Gupta) and judgment and order dated 20.01.2017 passed by learned Additional District Judge, Court No. 15, Bareilly in SCC Revision No. 17 of 2015 (Ram Prakash Gupta Vs. Ali Husain). 2. Learned counsel for the petitioner has argued that initially the landlord had filed a SCC Suit No. 10 of 2011 stating that the petitioner tenant is occupying the premises in question i.e. shop No. 4, Ansari Market, Mohanpur Road, Nakatiya, District Bareilly @ Rs.100/- per month as rent and that shop in question was constructed in year 1995, hence the provisions of the U.P. Act No. 13 of 1972 were not applicable and only the provisions of the Transfer of Property Act would apply. Since the petitioner tenant had not paid the rent w.e.f. 01.06.2001 up to 31.03.2002 i.e. about 115 months a total sum of Rs.11,500/- was due as arrears of rent, the plaintiff-landlord issued a legal notice on 08.01.2011 demanding the arrears of rent and terminating the tenancy. The said notice was served personally upon the petitioner-tenant. The petitioner-tenant also replied to the said notice. The SCC Suit was filed thereafter. The petitioner-tenant while filing written statement denied all the allegations in plaint had specifically asserted that the provisions of the U.P. Act No. 13 of 1972 are applicable and that he had not committed any default in payment of rent and had deposited the entire rent in Misc. Case No. 34 of 2002 under Section 30 of the U.P. Act No. 13 of 1972 after the landlord refused to accept the rent tendered by him through money order. 3. The Judge, Small Causes Court considered the evidence led by both the parties and framed one of the issues whether the provisions of the U.P. Act No. 13 of 1972 would apply to the property in question. 3. The Judge, Small Causes Court considered the evidence led by both the parties and framed one of the issues whether the provisions of the U.P. Act No. 13 of 1972 would apply to the property in question. Since no documentary evidence was filed either by the tenant or by the landlord with regard to the date of first assessment of the shop in question, on the basis of the oral evidence/statement made during the examination in chief and cross examination of the witnesses, the learned Trial Court returned a finding that the tenant had admitted that he had taken the shop in question on rent one to two months after its construction and that his tenancy started sometimes in year 1994. On the basis of oral evidence recorded, the learned Trial Court decreed the suit by its judgment and order dated 11.08.2015 and directed the tenant to evict the premises in question within two months and tender the rent for a period of three years prior to the filing of the suit i.e. from 2008 only as granting of relief beyond that was barred by limitation. 4. Aggrieved by the order passed by the learned Judge, Small Causes Court dated 11.08.2015 the petitioner-tenant filed SCC Revision No. 17 of 2015. The learned Additional District Judge has rejected the revision on 20.01.2017 only by affirming the findings recorded by learned Trial Court. It has been submitted that Revisional Court has not applied its independent mind to the grounds of Revision. One of the grounds taken in the Revision was that in an earlier Suit filed by the tenant praying for injunction against the landlord for not evicting him from the property in question without following due procedure in law; the said suit was registered as regular Suit No. 188 of 2007 before the Civil Judge (Junior Division), Haveli (North), Bareilly. The landlord had filed a written statement alleging therein that the suit is barred by the provisions of the U.P. Act No. 13 of 1972 and ought to be returned under Order 7 Rule 11 C.P.C. 5. The learned counsel for the petitioner-tenant has also argued that benefit of Section 20(4) of the Rent Control Act was available to the tenant as he was depositing the rent under Section 30 as aforesaid in Misc. Case No. 34 of 2002. The learned counsel for the petitioner-tenant has also argued that benefit of Section 20(4) of the Rent Control Act was available to the tenant as he was depositing the rent under Section 30 as aforesaid in Misc. Case No. 34 of 2002. This argument was also not dealt with properly by the learned Additional District Judge. Learned counsel for the petitioner-tenant has placed reliance upon the judgment rendered by this Court in Fakir Chand Jatav Vs. Surendra Kumar Gupta, 2003 (2) ARC 14 wherein this Court had observed that first assessment of the building in question should be taken to be the correct date for completion of construction. In the present case, no documentary evidence was filed by the landlord to show the first date of assessment and therefore any oral statement made by the witnesses of the respective parties could not have been relied upon to come to a finding that the shop in question was built after the cut-off date in 1995. 6. Learned counsel for the petitioner-tenant has also relied upon another judgment rendered by another coordinate bench of this Court in Riyaj Fatma (Smt.) Vs. Special Judge/Additional District Judge, Bijnor and others, 2005 (1) ARC 850 wherein this Court has observed that whether documentary evidence is led, then, the court cannot rely upon the oral evidence and ignore the documentary evidence on record. 7. In this case, however, no documentary evidence with regard to completion of construction of the shop in question was produced either by the tenant or by the landlord. 8. The learned counsel for the respondent-landlord, on the other hand, has pointed out from the statement made by the petitioner-tenant himself during the cross-examination before the Trial Court that the tenant had occupied the shop within one or two months of its construction and he admitted in 2013 that he had taken the shop under rent fourteen to fifteen years ago that would relate to the date back to the year 1998. The tenant had also admitted in his cross-examination that the shop in question was taken by him on rent sometime in 1994. The tenant had also admitted in his cross-examination that the shop in question was taken by him on rent sometime in 1994. This statement has been relied upon by the learned Trial Court and by the Revisional Court to come to conclusion that since the tenant himself was admitting that he had taken the shop on rent one to two months after its construction and, in fact, the tenancy started in 1994, it could not be said that the shop in question was constructed before 1985 i.e. the cut off date mentioned in the Act. 9. Learned counsel for the respondent-landlord has also pointed out that there may have been a pleading in the written statement filed in the Original Suit No. 188 of 2007 by the landlord that the Suit is barred by the provisions of the U.P. Act No. 13 of 1972 and the plaint ought to be returned under Order 7 Rule 11 C.P.C. Thus, an issue was framed with regard to the same by the learned Civil Judge (Junior Division), Hawali, Bareilly and learned Trial Court gave the findings against the landlord on these two issues in the judgment and order dated 08.12.2010. The issue being decided against the landlord, the landlord therefore filed a SCC Suit No. 10 of 2010 for eviction of the tenant. 10. Learned counsel for the respondent-landlord has placed reliance upon a Supreme Court judgment in Vindhyachal Prasad Jaiswal Vs. VIIth Additional District Judge, Varanasi and others, reported in 1995 (1) ARC 318 wherein the Exemption Clause under Section 2 (2) of the U.P. Act No. 13 of 1972 was explained by the Hon'ble Supreme Court. This judgment was also relied upon by the learned Additional District Judge while rejecting the Revision filed by the petitioner-tenant. 11. Having heard the learned counsel for the parties and having gone through the records including the statements made by the landlord himself and his son before the learned Trial Court and the judgment and order dated 08.12.2010 passed by the Civil Court in O.S. No. 188 of 2007, this Court finds that no factual or legal infirmity is present in the orders impugned passed by the learned Judge, Small Causes Court, Bareilly and the learned Additional District Judge. The learned Judge, Small Causes Court, Bareilly has on the basis of the correct appreciation of the evidence placed before it come to the conclusion that there was a default in payment of rent and a notice under Section 106 of the Transfer of Property Act was served upon the tenant demanding the arrears of rent as also terminating the tenancy. The landlord had made out a case that the U.P. Act No. 13 of 1972 was not applicable as the shops were newly constructed at the time when the tenancy started in 1994 and has decreed the Suit in favour of the landlord. The Additional District Judge while considering the Revision has placed reliance upon several binding precedents of this Court and of the Hon'ble Supreme Court and has buttressed the finding of fact with the observations made by this Court and by the Supreme Court in similar cases. The judgments relied upon by the Revisional Court have not been shown to be inapplicable or distinguishable by the learned counsel for the petitioner-tenant. 12. Finding no infirmity or illegality in the orders impugned, this petition is dismissed. 13. No order as to costs.