Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 2391 (ALL)

Anil Kumar v. Satya Narain

2018-11-22

SANGEETA CHANDRA

body2018
JUDGMENT : SANGEETA CHANDRA, J. 1. This petition has been filed by the tenant who was the respondent for setting aside the judgment and order dated 29.11.2016 passed in SCC Suit No. 08 of 2006 by the Civil Judge, Junior Division / Judge Small Causes Kasganj and the order dated 08.01.2018 passed in SCC Revision No. 06 of 2016 by the Additional District & Session Judge, Kasganj. 2. I have heard Sri Sidharth Srivastava appearing for the petitioner and Sri Ratnesh Srivastava assisted by Sri Anil Kumar Pandey for the respondent landlord. 3. The facts leading to filing of this petition under Article 227 of the Constitution of India are as follows: The plaintiff respondent filed SCC Suit No. 08 of 2006 for eviction of the defendant petitioner on the ground of alleged default in payment of rent. The defendant / petitioner filed his written statement on 26.07.2007 denying the contents of the plaint and alleging that he had suitably replied the notice dated 17.02.2006, claiming arrears of rent and directing determination of lease, and the SCC suit was not maintainable. Evidence was recorded of the plaintiff / respondent and his witness and that of the defendant / petitioner and his witness and the learned Trial Court decreed the suit by its judgment and order dated 17.05.2012. The plaintiff petitioner challenged the judgment and order dated 17.05.2012 in Civil Revision No. 340 of 2012. This Court by its judgment and order dated 26.11.2014 set aside the order passed by the learned Trial Court and remanded the matter. On remand additional evidence was led by the plaintiff / respondent which evidence it is alleged was inadmissible in law regarding rate of rent and date of assessment by the Municipal Board of the property in question to establish that it fell out of the purview of U.P. Act No. 13 of 1972. It has been alleged that the trial Court relied on the fresh evidence submitted by the plaintiff respondent ignoring his clear admission in his cross-examination and decreed the suit again by its judgment and order dated 29.11.2014. Aggrieved by the same, an SCC Revision No. 06 of 2016 was filed by the defendant petitioner. It has also been dismissed in summary manner by the Additional District Judge on 08.01.2018. 4. Aggrieved by the same, an SCC Revision No. 06 of 2016 was filed by the defendant petitioner. It has also been dismissed in summary manner by the Additional District Judge on 08.01.2018. 4. It has been argued by Sri Sidharth Srivastava that the learned Trial Court failed to consider the observations made by this Court in its judgment and order dated 26.11.2014 in Civil Revision No. 340 of 2012 and the impugned orders are beyond the scope of remand order. 5. The learned counsel has led this Court through the judgment and order dated 26.11.2014. This Court had remanded the matter on three issues, (a) whether U.P. Act No. 13 of 1972 was applicable to the shop in dispute with regard to the explanation given under Section 2(2) of the Rent Control Act, and (b) the completion certificate, if any of the building being intimated to the Local Authority and (c) the assessment being carried out by the Local Authority of the same. The date of completion of construction was crucial and have to be decided by the learned Trial Court, also the rate of the rent was being seriously disputed between the parties. The tenant was claiming that the shop in question had been rented out to him at the rate of Rs. 200/-per month, whereas the Landlord has claimed Rs. 2100/-per month as rent. 6. It has been argued that this Court had observed in its judgment and order dated 26.11.2014 evidence was required to be considered by the learned trial Court with regard to determination of the rate of rent as it would ultimately determine whether the SCC suit was maintainable. It was been necessary to determine whether any default was committed by the tenant in payment of such rent. This Court while remanding the matter to the learned Trial court had directed the tenant to deposit rent at the rate of Rs. 2100/-per month for use and occupation of the suit property, till the matter was finally decided and also to clear all dues regarding rent/ damages at the above rate till the final decision of the suit afresh as directed. 7. It has been argued by Sri Sidharth Srivastava that the plaintiff / respondent failed to prove that the petitioner was in default in payment of arrears as a tenant had already deposited the admitted rent at the rate of Rs. 200/-per month in Misc. 7. It has been argued by Sri Sidharth Srivastava that the plaintiff / respondent failed to prove that the petitioner was in default in payment of arrears as a tenant had already deposited the admitted rent at the rate of Rs. 200/-per month in Misc. Case No. 64 of 2006 (Anil Kumar vs. Satya Narayan) under Section 30(1) of the U.P. Rent Control Act before the 1st Additional Civil Judge Junior Division, Kasganj. It was also argued that no credible evidence was available with regard to allegation of the plaintiff / respondent that rent at the rate of Rs. 2100/-per month was payable by the tenant. The Municipal assessments allegedly made in 1992 and 2002 were fabricated documents produced as an afterthought to substantiate the claim of the plaintiff respondent that the construction of the suit property was completed after 26th of April 1986 and thus, fell out of the purview of the explanation appended in Section 2(2) of the Act of 1972. 8. It has been argued that the learned Trial Court failed to appreciate that the building in question was never assessed by the Municipality Board and therefore, it could not have been treated to be exempted from the application of the Rent Control Act. It has been alleged that after remand by this Court, the petitioner had filed copies of information provided by the Nagar Palika Parishad, Kasganj under Right to Information Act that the building in question had never been assessed and no report of its completion as had been given by the Landlord to the Municipality. 9. It has also been submitted by Sri Sidharth Srivastava that in the written statement filed by the petitioner / defendant, a clear stand was taken that the suit was not maintainable. As the validity of the notice itself given on 17.02.2006 was challenged on the ground that the shop in question jointly belongs to the plaintiff and his brother whereas the notice as well as the suit was initiated only on behalf of the plaintiff who was one of the co-owners of the property in question. 10. It has further been argued that the learned Trial Court has wrongly placed reliance upon the statement of one Chandra Shekhar a tenant of a shop adjacent to the shop of the petitioner defendant in the same premises. 10. It has further been argued that the learned Trial Court has wrongly placed reliance upon the statement of one Chandra Shekhar a tenant of a shop adjacent to the shop of the petitioner defendant in the same premises. The plaintiff / respondent in his cross-examination has specifically admitted that he did not know the rate of rent at which Chandra Shekhar had been let out the shop adjacent to that of the petitioner but on remand by this Court had produced Chandra Shekhar to prove the rate of rent of his Shop as P.W.3. Such additional evidence could not have been adduced and the learned Trial Court in a most perverse manner relied on the evidence contrary to the clear admission of the plaintiff / respondent himself. It has been stated that the learned Trial Court relied on the statement of other tenant viz Chandra Shekhar P.W.3 who was clearly under the influence of the Landlord. 11. It has also been submitted that the learned Trial Court committed illegality in discarding the clear admission of the plaintiff / respondent in his cross-examination that the rent was paid by the tenant till 01.02.2006 while recording a finding of default on the part of the tenant. 12. The learned counsel for the petitioner has placed reliance upon two judgments to substantiate his argument regarding burden on the Landlord to prove the exemption of building from the applicability of U.P. Act No. 13 of 1972, and the mode of proving the date of construction of building under Section 2(2) of the U.P. Act No. 13 of 1972. He has referred to 2001(1) ARC 514 Vijay Laxmi Jain vs. Rameswar Dayal Gupta. 13. It has also been argued on the basis of judgment rendered by the Supreme Court in Rakesh Wadhawan v. Jagdamba Industrial Corporation, (2002) 5 SCC 440 to the effect that if lease of immovable property has been determined by forfeiting security for non payment of rent and lessor filed suit for ejectment benefit of Section 114 of the Transfer of Property Act, can be given to the lessee subject to the proof of default. 14. I have gone through the judgment of the learned Trial Court dated 29.11.2016. 14. I have gone through the judgment of the learned Trial Court dated 29.11.2016. The learned Trial Court referred to the facts of the case that the plaintiff had given one shop in Mohalla Nathu Ram Laxmi Ganj in Kasganj, Bazar to the defendant at the rate of Rs. 2100/-per month in 2005 and on default of payment rent had issued a notice on 17.02.2006 directing the payment of arrears and for determination of lease in the case of default. The learned Trial Court thereafter framed the following issues on 03.08.2007: (i) whether the defendant was a tenant of the plaintiff of the shop in question at the rate of Rs. 2100/-per month? (ii) whether the shop in question comes under the Purview Act No. 13 of 1972 ? (iii) whether the defendant is in arrears of rent since 01.03.2005? (iv) whether the defendant claim that he had given Rs. 60,000/-as premium of the shop in question to the landlord is admissible and its effects? (v) whether defendant is entitled to payment of special cost under Section 35-A (1) of the Civil Procedure Code? (vi) whether the plaintiff is entitled to the relief as prayed? On 29.01.2009 additional issues were framed. (vii) whether the suit in question is bared under Section 10 of the Civil Procedure Code and should be stayed? (viii) whether the Judge Small Causes Court has jurisdiction to here to suit filed by the plaintiff? Again on 04.10.2011 three more issues were framed i.e. (ix) whether the tenant was liable for eviction on accounts of non-payment of rent? (x) whether the notice given by the plaintiff under Section 106 of the Transfer of Property Act was a valid notice? (xi) whether the defendant was evicted under Section 106 of the Transfer of Property Act? 15. The Learned Trial Court has considered oral and documentary evidence to determine Issue nos. 1 & 3 with regard to the admissibility of rate of rent of Rs. 2100/-and whether the tenant was in default of payment of the same since 01.03.2005. The learned Trial Court has found that the tenant had alleged that the rate of rent was Rs. 200/-per month and that the plaintiff had threatened him in case he did not enhance the rent with ejection from the property in dispute. 2100/-and whether the tenant was in default of payment of the same since 01.03.2005. The learned Trial Court has found that the tenant had alleged that the rate of rent was Rs. 200/-per month and that the plaintiff had threatened him in case he did not enhance the rent with ejection from the property in dispute. The tenant had therefore, filed Original Suit No. 64 of 2006 (Anil Kimar Agrawal vs. Satya Narayan) for permanent injunction in the Court of Civil Judge, Junior Division, Kasganj against the Landlord and also when the Landlord had not accepted rent for the month of February 2006 sent to him through money order he had filed Misc. Case No. 10 of 2006 (Anil Kumar Agrawal vs. Satya Naryan) under Section 20 (1) of the U.P. Rent Control Act, before the Court of Civil Judge, Junior Division, Kasganj. The learned Trial Court took into account such pleadings and came to the conclusion the relationship of Landlord and tenant was admitted between the parties. 16. The dispute related to whether the rate of rent was Rs. 200/-per month or Rs. 2100/-per month and whether the tenant was in arrears since 01.03.2005. The learned Trial Court took into account the allegation of tenant that he had paid a premium of Rs. 60,000/-to the Landlord and his brother before taking the shop in question on rent which Rs. 60,000/-was kept as security by the Landlord on an oral agreement that the same shall be liable to be returned to the tenant on his vacating the shop peacefully. The learned Trial Court took into account the failure of the tenant to produce documentary evidence with regard to payment of Rs. 60,000/-in cash as premium for the shop or with regard to rate of rent being agreed on Rs. 200/-per month as rent. On the other hand, the Landlord had produced another tenant i.e. Chandra Shekhar (PW 3) whose shop was situated adjacent to the shop of the defendant in the same property and was of the same size who deposed on oath that initially Rs. 2000/-was paid as rent by him. Later on it was increased to Rs. 3000/-and thereafter to Rs. 3500/-and w.e.f. 1st January 2015 the said tenant was paying Rs. 4000/-per month as rent. It was observed by the learned Trial Court that Chandra Shekhar/ PW. 2000/-was paid as rent by him. Later on it was increased to Rs. 3000/-and thereafter to Rs. 3500/-and w.e.f. 1st January 2015 the said tenant was paying Rs. 4000/-per month as rent. It was observed by the learned Trial Court that Chandra Shekhar/ PW. 3 the tenant of the shop adjacent to the shop of the defendant in the same property would not depose without reason against the defendant and for the landlord, no malice was alleged, nor any personal animosity. 17. With regard to the issue whether the shop in question came under the purview of U.P. Act No. 13 of 1972, the tenant had alleged that the ship in question was built much before the cut off date of 26th of April 1985, and thus came within the purview of the Act and that the rent of the shop in question was Rs. 200/-per month and not Rs. 2100/-which also made the shop amenable to the protection under the U.P. Act No. 13 of 1972. The learned Trial Court found on the basis of documentary evidence submitted by the landlord that the shop in question was constructed after 1986. A registered sale-deed dated 02.09.1985 entered into between Roop Naryan and Satya Narayan and one Basant Kumar show that the property had been bought as an open piece of land with boundaries. Map was sanctioned thereafter on 30 January 1987 by the Area Town Committee by the prescribed Authority. The building in question was assessed firstly, in 1992-93 by the Muncipality showing it to be numbered as 960 in Mohalla Nathu Ram Laxmi Ganj. In 1992-93 the property in question was assessed by the annual rental value of Rs. 5400/-showing the rent to be payable at the rate of Rs. 200/-by the tenant in possession thereof. Later on in 2004 it was re-assessed and a new number given the old number of 960 was renumbered as 1132/1 to 1132/4 (new number) and the annual rental value and the amount of tax was re-assessed at Rs. 27,600/-showing two shops occupied by Shri Chandra Shekhar and Shri Manoj Kumar separately at the rate of rent of Rs. 2000/-per month. 18. 27,600/-showing two shops occupied by Shri Chandra Shekhar and Shri Manoj Kumar separately at the rate of rent of Rs. 2000/-per month. 18. The learned Trial Court having found the assessment of the property being done by the Municipal Board in 1992 and in 2002 and the rate of rent also been stated by the tenant in the adjacent shop of the same size being more than Rs. 2000/-concluded that the shop in question was not covered under the Act No. 13 of 1972. 19. A presumption had been drawn under the Evidence Act to official documents being genuine, as the tenant could not produce any documentary evidence to controvert the same. 20. The learned Trial Court also found that the defendant / tenant could not produce any documentary evidence with regard to giving of premium of Rs. 60,000/-as alleged to the landlord as nor could he prove through any documentary evidence that the rate of rent was Rs. 200/-per month. 21. Having considered the aforesaid issues in favour of the plaintiff / respondent, the learned Trial Court also found that the property in question not being covered under the U.P. Act No. 13 of 1972. A valid notice for determination of lessee and for eviction of tenant was given on 17.02.2006, under Section 106 of the Transfer of Property Act. The learned Trial Court has referred to the judgment of this Court in Waqf-alal-aulad (5) 1st A.D.J., Bijnor, wherein this Court had observed that in all such cases whether the suit property is not covered by U.P. Act No 13 of 1972, a notice for determination of tenancy would treated to be a valid notice even if the tenant in question has not been shown to be in default in payment of arrears of rent. The learned Trial Court therefore decreed the suit on 29.11.2016, directed the tenant to give peaceful and vacant possession of the shop in question and to pay Rs. 52,700/-as arrears of rent along with six per cent interest up to 20.11.2006 and also to continue to pay Rs. 2100/-as damages till such vacant possession is actually delivered to the landlord. 22. The petitioner tenant thereafter filed an SCC Revision No. 6 of 2016. The Revisional Court has also framed issues with regard to whether Rs. 52,700/-as arrears of rent along with six per cent interest up to 20.11.2006 and also to continue to pay Rs. 2100/-as damages till such vacant possession is actually delivered to the landlord. 22. The petitioner tenant thereafter filed an SCC Revision No. 6 of 2016. The Revisional Court has also framed issues with regard to whether Rs. 2100/-per month was payable as a rent by the tenant to the landlord and whether U.P. Act No. 13 of 1972 was applicable to the property in dispute and whether the tenancy had been validly determined by the notice dated 17.02.2006. The Revisional Court had considered the arguments raised by the tenant and had found them to be not worth believing on the ground that PW. 3 Chandra Shekhar who was the tenant of the shop adjacent to the shop in dispute being a shop of the same size and located in the same property, having deposed that he was paying Rs. 4000/-per month as rent in 2016. Although, originally he had taken the shop in question on rent at the rate of Rs. 2000/-per month. 23. The Revisional Court has also referred to the Assessment Order by the Municipality of the year 2002 and observed that since the suit was instituted in 2006, it could not be said that there was any doubt that the shop in dispute fell out of the purview of U.P. Act No. 13 of 1972. The Revisional Court has also observed that no documentary evidence was placed before it by the tenant to prove otherwise. With regard to whether U.P. Act No. 13 of 1972 being inapplicable, the Revisional Court has also placed reliance upon the registered sale-deed of 1985 and the sanctioned plan for the building in question dated 30.01.1987 and the two Assessment Orders of the year 1992-93 and 2002 issued by the Muncipal Board. It has come to the conclusion that since the first assessment of the property in question was done in 1992 its date of completion would be taken as 1992 as per the Muncipal record which was much beyond the cut-off date of 26th April 1985 required for bringing the property in dispute under the purview of U.P. Act No. 13 of 1972. 24. Insofar as validity of the notice dated 17.06.2006, is concerned the learned Revisional Court observed that no doubt the tenant had deposited Rs. 24. Insofar as validity of the notice dated 17.06.2006, is concerned the learned Revisional Court observed that no doubt the tenant had deposited Rs. 200/-per month before the Trial Court in Original Suit No. 64 of 2006 (Anil Kumar vs. Satya Naryan) but that would not give any protection to the tenant as the shop in dispute fell out of the purview of U.P. Act No. 13 of 1972 and under Section 106 of Transfer of Property Act, a valid notice was issued on 17.02.2006 determining the tenancy by the Landlord. The Revisional Court therefore rejected the revision on 08.01.2018. 25. The learned counsel for the petitioner / tenant has placed reliance upon the judgment of Smt. Vijay Lakshmi Jain v. Rameshwar Dayal Gupta: 2001 (2) A.W.C 881 . It has been submitted that the tenant had filed an application under Right to Information Act and had received information sent by the Executive Officer of Nagar Palika Parishad, Kasganj with regard to the assessment of the property in dispute. It was informed that in 2002-03 the property in dispute, namely, Property No. 1132/02 showed the name the tenant as Manoj Kumar and the rate of rent as Rs. 200/-per month. It has been argued that the information given under Right to Information Act, dated 29.12.2014 and 17.01.2014 was filed by the tenant before the learned Trial Court, but it was not noticed. 26. I have gone through the judgment rendered by coordinate Bench in Vijay Laxmi Jain (supra) this Court had placed reliance on judgment rendered by the Supreme Court in Suresh Kumar Jain vs. Shanti Swaroop Jain, 1997 (1) ARC 640 and observed that legislature has provided a method for determining the date with reference to which the building in question will be deemed to have been constructed by indicating four distinct dates which are as follows: (i) the date on which completion of the building is reported to the local authority. (ii) the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction. (iii) the date on which the assessment of property tax is first made. (iv) in the absence of any such report, record or assessment, the date on which the building was actually occupied. 27. (ii) the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction. (iii) the date on which the assessment of property tax is first made. (iv) in the absence of any such report, record or assessment, the date on which the building was actually occupied. 27. It has been observed that it is not for the tenant to prove that the building has been constructed beyond the period of 10 years but it is for the landlord to prove that the construction has been completed within 10 years of the suit, such provision has been made because it is the landlord who knows best when the building was completed and not the tenant. As between the two, the owner of the building must tell the Court when the building was constructed and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord. 28. There is no dispute regarding the settled position in law as to the onus being placed by the learned Trial Court on the landlord to prove that the building in question falls within the exemption clause given under Section 2 (2) of U.P. Act No. 13 of 1972. The landlord had produced the documentary evidence in the form of registered sale-deed of purchase of the property as an open land, the date of sanction of map by the Prescribed Authority, and the date of Assessment by the Muncipal Board, Kasganj. With regard to second judgment on which reliance has been placed, namely, Rakesh Wadhawan (supra) the Supreme Court has observed no doubt that if the lease of immovable property has been determined by forfeiture for non-payment of rent and the lessee filed a suit for ejectment the benefit of Section 114 of the Transfer of Property Act can be given to the lessee, subject to the proof of default. However, this Court finds from a perusal of the judgment of the Trial Court and that of the Revisional Court that the tenant had all throughout disputed the applicability of Section 106 of the Transfer of Property Act. The tenant had in fact filed Misc. Case No. 10 of 2006 before the Civil Judge, Junior Division, Kasganj and deposited rent at the rate of Rs. The tenant had in fact filed Misc. Case No. 10 of 2006 before the Civil Judge, Junior Division, Kasganj and deposited rent at the rate of Rs. 200/-per month up to 31.03.2017, under Section 30 of the U.P. Act No. 13 of 1972. There being no admission on the part of the tenant of rate of rent of Rs. 2100/-being payable, no such benefit under Section 114 of the Transfer of Property Act could have been given by the learned Trial Court or the Revisional Court. 29. This Court finding no factual or legal infirmity in the orders impugned cannot show any interference under Article 227 of the Constitution of India in the limited supervisory jurisdiction that it exercises. 30. This Court cannot embark upon a de-novo examination on the findings of facts recorded by the leaned Trial Court and the Revisional Court. The learned Trial Court has correctly determined the jurisdictional fact with regard to applicability of Act No. 13 of 1972 which goes to the very root of the matter. This particular finding of fact has not been found to be vitiated by any error of law, in view of the guidelines laid down in Section 2 (2) an explanation (1) thereof in the Act No. 13 of 1972. 31. This Court therefore, finds the petition as liable to be dismissed. 32. Hence this petition is dismissed. No order as to costs. 33. The petitioner / tenant is directed to hand over the vacant and peaceful possession of the shop in dispute to the landlord within a period of 1 month from today and to pay damages at the rate Rs. 4000/-. The order of the learned Trial Court and the Revisional Court is affirmed.