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2018 DIGILAW 787 (ALL)

YOGESH KUMAR v. SPECIAL JUDGE

2018-04-03

SANGEETA CHANDRA

body2018
JUDGMENT : Mrs. Sangeeta Chandra, J. This application has been filed by the petitioner challenging the order dated 13.2.2018 passed by the respondent No. 1 and the order dated 29.1.2016 passed by the Judge Small Causes Court, Meerut. 2. The facts of the case in brief are that the plaintiff - respondent No. 3 filed SCC Suit No. 44 of 2012 before the Civil Judge, Small Causes Court, Meerut against the petitioner for his eviction from Shop No. 64/1 Subhashpuri Kankar Kheda, Meerut and also claimed Rs. 7186/- as arrears of rent from 1.5.2011 to 25.5.2012 and damages at the rate of Rs. 40/- per day from 26.5.2012 to 28.5.2012. 3. The petitioner is a tenant of the plaintiff w.e.f. 23.1.1991 and the provisions of U.P. Act No. 13 of 1972 are not applicable to the shop in question as it was constructed in 1987 and was let out in 1991. The copy of the rent agreement between the tenant and the landlord was filed in which paragraph G refers to the shop in question being constructed in 1987. 4. The learned Courts below rejected the arguments made by the learned counsel for the petitioner that the shop in question was very old and was constructed prior to 1975 only on the ground that the tenant could not produce any evidence to substantiate his claim of the shop being old. The learned Courts below after observing that in the oral evidence of the landlord and in the agreement, it has come on record that the shop was constructed in August 1987 and the agreement of tenancy was entered in January 1991, had come to a conclusion that U.P. Act No. 13 of 1972 shall not apply. 5. Aggrieved against the order passed by the learned Judge Small Causes Court, the petitioner filed a Revision which Revision has also been rejected only placing reliance upon oral evidence of the landlord and the mention in the rent agreement that the shop in question was constructed in August 1987. 6. 5. Aggrieved against the order passed by the learned Judge Small Causes Court, the petitioner filed a Revision which Revision has also been rejected only placing reliance upon oral evidence of the landlord and the mention in the rent agreement that the shop in question was constructed in August 1987. 6. Learned counsel for the applicant before this Court has pointed out from the order of the Revisional Court that he had cited judgments of the Supreme Court and of this Court which have been mentioned as Ram Swaroop Rai v. Leelawati 1980 ARC 466, Smt. Vijay Laxami v. Rameshwaram Dayal Gupta (2001) 43 ALL.L.R. 155, Govardhan Lalwani v. District Judge, Jhansi, (2006) 64 ALR 590 and Smt. J. Yashoda v. Smt. K. Sobha Rani 2007 (2) ARC 834 and others which have not been dealt with properly by the Revisional Court, but an observation has been made that such judgments do not apply to the facts of the case. 7. It has been submitted on the basis of these judgments, copies of which have been produced before this Court by the learned counsel for the applicant that the burden to prove that the building in question was a new construction lies upon the landlord and it is not enough that the landlord makes a claim in oral evidence that the building in question is a new construction and therefore U.P. Act No. 13 of 1972 would not apply. 8. This Court placing reliance upon Ram Swaroop Rai (supra) had observed in Smt. Vijay Lakshmi Jain (supra) that it is not enough that a mention regarding construction is made in a rent agreement to take the building out of the purview of U.P. Act No. 13 of 1972. 9. As per the exemption clause, under Section 2 sub clause 2, the municipal records relating to assessment have to be seen to determine the date of completion and nature of construction, oral evidence in this case is inconsequential being second hand testimony. 10. It has been submitted by the learned counsel for the applicant that the Revisional Court was duty bound to look into municipal records to find out the date of assessment of the shop in question, instead of relying upon oral evidence of the landlord on the recital in the rent deed. 11. 10. It has been submitted by the learned counsel for the applicant that the Revisional Court was duty bound to look into municipal records to find out the date of assessment of the shop in question, instead of relying upon oral evidence of the landlord on the recital in the rent deed. 11. Learned counsel for the respondents on the other hand has pointed out that the shop in question was assessed for the first time by Nagarpalika, Meerut in 1992 and has produced a photocopy of the assessment order before this Court and says that he has filed the same as evidence before the learned Courts below also. 12. If that be so, the learned Courts below was duty bound to look into assessment order also, as it is only the assessment order as referred to in the exemption clause which would determine the correct date of construction of the shop in question. 13. Since, the Revisional Court has overlooked the assessment order altogether and has basically relied upon oral testimony and recital in rent deed which have been held by this Court to be irrelevant for the purpose of determination of date of construction of building in dispute, the order of the Revisional Court dated 13.2.2018 is set aside. 14. The matter is remanded to the Revisional Court to consider afresh the issue relating to applicability or otherwise of U.P. Act No. 13 of 1972 to the property in dispute, and to pass appropriate orders thereafter, giving opportunity of hearing to both the parties. 15. Let this exercise be completed within a period of three months from the date a certified copy of this order is produced before it. 16. The application is partly allowed to this extent.