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2018 DIGILAW 1869 (ALL)

Bhola Shankar Sharma v. Jameer

2018-08-27

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard Sri Vishal Khandelwal, learned counsel for the tenant-petitioner and Sri Y.S. Bohra, learned counsel for the landlord-respondents and perused the record. 2. Present petition has been filed challenging the impugned judgment and order dated 2.5.2018 passed by the District Judge, Bulandshahar in Revision No. 32 of 2015 as well as the impugned order dated 3.12.2015 passed by the Judge Small Cause Court, Bulandshahar. 3. By the impugned judgment dated 3.12.2015, the suit filed by the landlord-respondents was allowed and the revision against the same filed by the tenant-petitioner was dismissed. The suit was filed on the ground that tenant-petitioner was let out the shop in question in the year 2008. The construction is a new construction raised in the year 1990-1991 and there was an agreement to sale wherein it was clearly entered that the accommodation is new building and rent control Act does not apply on the aforesaid building. As such, it was asserted that the provisions of UP Act 13 of 1972 are not applicable. A notice under Section 106 of the Act was given to the tenant-petitioner, which was duly replied by him. On issue no. 1 regarding validity of notice, it was found that the registered notice for termination of tenancy was duly given to the tenant, which was received by him on 20.8.2012 and was replied, however, rent was not paid. As such, the notice was found to be validly given. On issue no. 2 regarding applicability of the Act, after appreciation of evidence, documentary evidence as well as oral evidence, given by both the parties, it was found that construction was a new construction raised in the year 1990-91 and it was assessed for the first time in the year 1990-91. The claim of the tenant-petitioner that the shop was constructed in the year 1983 was rejected. On issue no. 3 regarding-default in payment of rent, the trial Court found that there was no default in payment of rent. The benefit of deposit of rent made under Section 20 (4) of the Act was denied on the ground that the Act is not applicable. Other issues were decided in favour of the landlord and the suit was allowed. The lower appellate Court while upholding the other findings, however, reversed the finding of trial Court regarding default of rent and held that there was default in payment of rent. 4. Other issues were decided in favour of the landlord and the suit was allowed. The lower appellate Court while upholding the other findings, however, reversed the finding of trial Court regarding default of rent and held that there was default in payment of rent. 4. Submission of the learned counsel for the petitioner is that in fact an application for sanction of map was given by the original landlady on 5.2.1983 and the map was sanctioned on 16.3.1983 and construction was raised thereafter. Submission is that the Court below has incorrectly relied on the certificate dated 20.5.2013 issued by the Adyaksh, Nagar Panchayat Chhatari given to the effect that the map of the market was sanctioned in the year 1989 in favour of Nasim Begaum (wife of the earlier owner of the property) and was assessed for the first time in the year 1990-91. Placing reliance on a judgment of this Court in Mohd. Aslam vs. Om Prakash Dwivedi, 2006 (3) AWC 3159 , submission is that the aforesaid certificate could not have been relied on by the trial Court and on that basis it cannot be said that the construction is of the year 1991. Submission is that the statement of assessment was not filed by the plaintiff-landlord and therefore, the suit must fail. He further submitted that once the map was sanctioned in the year 1983, therefore, such certificate was liable to be rejected. 5. Per contra, learned counsel for the respondent, drawing attention to the findings recorded by the learned trial Court and the judgment passed by the revisional Court, has submitted that it is not in dispute that the tenant-petitioner has occupied the shop in dispute in the year 2008 and the map of the market was sanctioned in the year 1989 and the shop in dispute was assessed for the first time in the year 1990-91 and it is proved from the documentary evidence and oral evidence as the landlord has filed his affidavit and has also made oral statement. It is submitted that the finding is supported by sufficient evidence. Attention was also drawn to the discussions made by the revisional Court regarding applicability of the Act. It is lastly submitted that in rent agreement also it is admitted by the tenant-petitioner that shop is a new construction and Act is not applicable in the tenanted accommodation. 6. It is submitted that the finding is supported by sufficient evidence. Attention was also drawn to the discussions made by the revisional Court regarding applicability of the Act. It is lastly submitted that in rent agreement also it is admitted by the tenant-petitioner that shop is a new construction and Act is not applicable in the tenanted accommodation. 6. I have considered the submissions and perused the record. 7. On perusal of the record, I find that the various documentary evidence regarding sanction of map of Faisal Market in the year 1989 and its assessment for the first time in the year 1990-91 has been given. There is no dispute that Adyaksh, Nagar Panchayat Chhatari has given the certificate, however, apart from that paper no. 41-C issued by the office of Nagar Panchayat Chhatar has also been filed, which is also to the same effect. Though DW-1 Bhola (petitioner herein) has disputed the same and has stated that the shop in dispute was constructed in the year 1983 but he has also submitted the document being paper no. 40-C also issued by the Nagar Panchayat Chhatari in support of his argument. He has also not filed any assessment of the shop to indicate that the shop was previously constructed. Apart from that the Court below has also noticed the fact that the map was sanctioned but there is nothing on record to indicate the date of construction by documentary evidence submitted by the tenant (petitioner herein). It is also not clear as to on which date the map was sanctioned and apart from that the clause 2 of the lease agreement clearly contains that 'the said accommodation is the newly constructed building and rent control Act does not apply against the building.' It is also not in dispute that registered notice was duly served on the tenant-petitioner and was also replied by him. Since the Act is not applicable, there is no illegality in denying the benefit of deposit made under Section 20(4) of the Act. I also find that on facts the ruling relied in the case of Mohd. Aslam (supra) is not applicable as the same is distinguishable from the facts of the present case. 8. 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. 9. Aslam (supra) is not applicable as the same is distinguishable from the facts of the present case. 8. 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. 9. 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. 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. 10. 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. 11. At this stage, learned counsel for the petitioner prays that some time may be granted to vacate the shop in question. 12. 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 shop in question to the landlord-opposite party on or before 30.3.2019. (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. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.3.2019 or till the date he vacates the shop in question, 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 shop in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the shop 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 in question is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. 13. There shall be no order as to costs.