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2018 DIGILAW 690 (ALL)

Sarvesh Kumar Singh v. Indu Gupta

2018-03-21

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Surya Prakash Kesarwani, J. Heard Sri Sheo Ram Singh, learned counsel for the defendant-tenant/petitioner and Sri Subhodh Kumar, learned counsel for the plaintiff-landlady/respondents. 2. Briefly stated facts of the present case are that one Smt. Meena Dua, was granted lease of MIG 92, Tibri Nath, BDA Colony, Bareilly measuring 128.99 Sq. Meters by the Bareilly Development Authority vide registered lease-deed dated 14.7.1994. Subsequently, the aforesaid Smt. Meena Dua constructed five shops in a portion of the aforesaid property. She sold a part of the aforesaid property to the plaintiff-landlady, measuring 40.96 Sq. Meters consisting of five shops, by registered sale deed dated 28/31.1.2008, after getting free hold the entire area of MIG 92, on 9.1.2008. It is recorded in the aforesaid sale deed dated 28/31.1.2008, executed by Smt.Meena Dua, that after she purchased/got lease from Bareilly Development Authority by registered deed dated 14.7.1994, she constructed shops. The defendant-tenant/petitioner was inducted as tenant in one of the shops in the year 2007 by Smt. Meena Dua. After purchasing of the aforesaid property by registered sale-deed dated 28/31.1.2008, the defendant-tenant started paying rent to the plaintiff-landlady, but subsequently, he defaulted in payment of rent. Therefore, the plaintiff-landlady issued a notice dated 7.2.2013 by registered post whereby, she determined the tenancy and demanded arrears of rent. The said notice was served by refusal upon the defendant-tenant on 14.2.2013. According to the plaintiff-landlady, since the defendant-tenant has not paid the arrears of rent and has also not vacated the disputed shop, therefore, she filed S.C.C. Suit No.18 of 2013 (Smt. Indu Gupta v. Sarvesh Kumar Singh), which was decreed by the Judge Small Cause Court, Bareilly by judgment dated 19.1.2017. 3. Aggrieved with the aforesaid judgment, the defendant-tenant filed Revision No.06 of 2017 (Sarvesh Kumar Singh v. Smt. Indu Gupta), which was dismissed by judgment dated 23.01.2018 passed by the Additional District Judge, Bareilly. 4. Aggrieved with the aforesaid two judgments, the defendant-petitioner has filed the present petition under Article 227 of the Constitution of India. 5. Learned counsel for the petitioner submits that the disputed property was constructed in the year 1982, therefore, the provisions of Act XIII of 1972 were applicable, but the courts below have committed a manifest error of law to hold that the construction was subsequent to the year 1994, and, therefore, the provisions of Act XIII of 1972 are not applicable. Learned counsel for the petitioner submits that the disputed property was constructed in the year 1982, therefore, the provisions of Act XIII of 1972 were applicable, but the courts below have committed a manifest error of law to hold that the construction was subsequent to the year 1994, and, therefore, the provisions of Act XIII of 1972 are not applicable. He submits that the defendant-petitioner has not defaulted in payment of rent. Therefore, the decree of eviction is illegal. 6. Sri Subodh Kumar, learned counsel for the plaintiff-landlady/respondent supports the impugned judgments. 7. I have carefully considered the submissions of the learned counsels for the parties. 8. It has not been disputed even before me that the erstwhile landlady Smt. Meena Dua owned MIG-92, Tibri Nath, BDA Colony, Bareilly, measuring 128.99 Sq. Meters by lease granted by the Bareilly Development Authority by registered lease deed dated 14.7.1999 and thereafter, she constructed five shops in a portion of the aforesaid property. This fact is also mentioned in the registered sale deed dated 28/31.1.2008, whereby the erstwhile owner Smt. Meena Dua had sold the disputed property to the plaintiff-landlady. Other evidences were also brought on record to prove that the provisions of U.P. Act XIII of 1972 are not applicable. Thus, the findings of the courts below that provisions of U.P. Act XIII of 1972 are not applicable, is based on consideration of relevant evidences which cannot be interfered. 9. Undisputedly, the notice dated 7.2.2013 was issued by the plaintiff-landlady to the defendant-tenant the tenancy was determined and arrears of rent for the period 1.6.2012 to 31.1.2013 was demanded. A finding of fact has been recorded in the impugned judgment that the aforesaid notice was served upon the defendant-tenant/petitioner on 14.2.2013. The defendant-tenant/petitioner has not submitted any evidence that he had deposited the demanded amount on first date of hearing after he had put in appearance in the aforesaid S.C.C. suit. Thus, the defendant-tenant has been held to be defaulter in payment of rent. A concurrent finding of fact in this regard based on consideration of relevant evidences, has been recorded by the courts below. 10. In view of the aforesaid, I do not find any objection. Consequently, the petition fails and is hereby dismissed. 11. Thus, the defendant-tenant has been held to be defaulter in payment of rent. A concurrent finding of fact in this regard based on consideration of relevant evidences, has been recorded by the courts below. 10. In view of the aforesaid, I do not find any objection. Consequently, the petition fails and is hereby dismissed. 11. After this order was dictated in open Court, learned counsel for the defendant-tenant/petitioner states on instructions that some time may be granted to the defendant-tenant/petitioner to vacate the disputed accommodation and for that purpose he undertakes to file an undertaking on oath within four weeks to vacate the disputed accommodation and to hand over its vacant and peaceful possession to the plaintiff-landlady/respondent on or before 21.6.2018. He further stated that for use and occupation of the disputed accommodation for the period from today till 21.6.2018 he shall also deposit a sum of Rs.10,000/- with the court below within four weeks from today. Therefore, no coercive action may be taken to dispossess him from the accommodation in question till 21.6.2018. 12. Learned counsel for the applicant-landlord/respondent has no serious objection to the aforesaid request of the defendant-tenant/petitioner. 13. Considering the aforesaid request of the defendant-tenant/petitioner, it is provided that in the event an undertaking on oath is filed to the aforesaid effect by the defendant-tenant/petitioner within four weeks from today before the court below and a sum of Rs.10,000/- along with the decreetal amount is also deposited within the same period then in that event, no coercive action shall be taken against the defendant-tenant/petitioner till 21.6.2018 to dispossess him from the disputed shop. In case of non-compliance of any of the conditions, as aforesaid, the aforesaid protection granted to the defendant-tenant/petitioner shall automatically stand vacated. It is further provided that in the event, the disputed accommodation is not vacated and its peaceful and vacant possession is not handed over by defendant-tenant/petitioner to the applicant-landlord/respondent on or before 21.6.2018, then in that event, the defendant-landlady/respondent shall be entitled to initiate appropriate proceedings against the defendant-tenant/petitioner including the proceeding for contempt.