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2018 DIGILAW 1749 (ALL)

MOHD. AFAQUE SIDDIQUI v. HAZI ZAMIL

2018-08-08

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. 1. Heard learned counsel for the petitioner. 2. Present petition has been filed for setting aside the order dated 3.5.2018 passed by Additional District Judge, Court No. 13, Kanpur Nagar in SCC Revision No. 108 of 2017 (Mohd. Afaque Sidduqui vs. Hazi Zamil) as well as order dated 29.9.2017 passed by learned Judge Small Causes Court, Kanpur Nagar in SCC Suit No. 105 of 2013 (Hazi Zamil vs. Mohd. Afaque Siddiqui). 3. Submission of learned counsel for the petitioner is that the findings recorded on issue no. 2 regarding applicability of U.P. Act 13 of 1972 has wrongly been decided in the present case as the evidence has not been correctly appreciated by both the courts below; and the landlord has not filed any evidence to prove that it was new construction and, therefore, the finding recorded is contrary to record. Drawing attention to the various documents and the statement of PW-1 learned counsel for the petitioner sought to argue that the house no. 78/9 Anwarganj, Chudi Wali Gali, Kanpur Nagar is old building and was subject to assessment in the year 1963-68 as per panchshala which was produced by him before the courts below. 4. Learned counsel for the petitioner further submits that the notice sent by the plaintiff terminating the tenancy was never served on the petitioner. He further submits that regarding service of notice issue was not framed by the court below. 5. I have considered the submissions and have perused the orders. 6. On perusal of record I find that it is not in dispute that the panchshala of 1968-73 the ground floor and the first floor has been shown. During arguments the plaintiff has asserted that the first floor was demolished and thereafter a new construction was raised. It is also not in dispute that the petitioner is the tenant in the accommodation since the year 2010. 7. I also find that the plaintiff has produced a panchshala paper no. 27-Ga for the year 1978-87, wherein the house was shown as a piece of land (bhumikhand). It was argued that in the year 1987 the house was only upto first floor and therefore, it is clear that the house was constructed in the year 1987 and the second floor was constructed in the year 2007. He had also stated the said fact in his cross-examination. It was argued that in the year 1987 the house was only upto first floor and therefore, it is clear that the house was constructed in the year 1987 and the second floor was constructed in the year 2007. He had also stated the said fact in his cross-examination. I also find that both the courts below have found that according to panchshala in the year 1987 the house was in the shape of a piece of land and the defendant has admitted that he is living on the second floor of the house, wherefrom it is clear that the second floor was constructed after the year 1987 and therefore, the Act is not applicable. Apart from this, the defendant in his cross-examination has admitted that he had come to this house after marriage and he was married in the year 2010 and that in the year 2010 the house was in good condition. Under such circumstances, I do not find any legal infirmity or jurisdictional error in the judgments of the court below insofar as the finding that house in question is a new construction and the Act 13 of 1972 is not applicable in the present case. 8. Insofar as the service of notice is concerned, I find that although in paragraph 10 of the petition it has been stated that notice dated 22.04.2013 was not received by the petitioner, however, no such ground has been taken in the petition to challenge the impugned orders. Even otherwise, on perusal of judgment, issue no. 3 has been specifically framed regarding validity of notice and it was found that in the light of judgment of Hon'ble Apex Court in the case of M/s Madan and Company vs. Wazir Jaiveer Chand AIR 1989 630 SC the notice received back with the endorsement 'Left' is a sufficient service. Even otherwise, admittedly, the petitioner is still living in the same house and as such there was no occasion that notice could have been returned with the remark 'Left'. 9. In such view of the matter, I find that the finding of the U.P. Act 13 of 1972 is not applicable in the present case is based on documentary evidence on record. 10. Under such circumstances, I do not find any legal infirmity and jurisdictional error in the orders impugned herein. 11. 9. In such view of the matter, I find that the finding of the U.P. Act 13 of 1972 is not applicable in the present case is based on documentary evidence on record. 10. Under such circumstances, I do not find any legal infirmity and jurisdictional error in the orders impugned herein. 11. Under such circumstances, I do not find any substantial argument regarding service of notice of learned counsel for the petitioner. 12. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed. 13. 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 31.1.2019; (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. 3000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 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 premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. There shall be no order as to costs.