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2019 DIGILAW 83 (ALL)

SURENDRA KUMAR v. SHANTI PRASAD

2019-01-09

MANOJ KUMAR GUPTA

body2019
JUDGMENT Manoj Kumar Gupta, J. Heard Sri K.M. Garg, counsel for the revisionists and Sri Atul Dayal for the plaintiff-opposite parties. 2. The instant revision under Section 25 of the Provincial Small Cause Courts Act, 1887 seeks to question the validity of the decree of eviction dated 31.3.1998 passed by the trial Court in S.C.C. Suit No. 5/1995. The trial Court has recorded a finding on issue No. 1 that U.P. Act No. 13 of 1972 (for short 'the Act') was not applicable to the shops in the tenancy of the revisionists. On issue No. 2, the revisionists were found to be in default in payment of rent. The benefit of deposit made under Section 30 was denied on the ground that the provisions of the Act were not applicable. While deciding issue No. 3, the trial Court held that the revisionists had removed the partition wall between the two shops and had constructed a store and dochhatti. This according to the trial Court amounts to structural alteration, resulting in reduction of value and disfigurement of the tenanted premises. On issue No. 4, the trial Court held that there was no misjoinder of causes of action and while deciding issue No. 5, it has been held that the notice terminating the tenancy was duly served. 3. Sri K.M. Garg, learned counsel for the revisionists made the following submissions : - 1. The finding regarding applicability of Act is based on oral statement of the parties and alleged admission in a rent note, none of which could form basis for determining the date of construction of the building. In other words, the submission is that the date of construction of the building was required to be determined in accordance with the statutory provisions contained in Section 2(2) of the Act. In support of his contention, he has placed reliance upon the judgment of the Supreme Court in Ram Saroop Rai Versus Smt. Lilawati, (1980) ARC 466. 2. The plaintiff did not appear in the witness box. Yogesh Kumar, the sole witness examined on behalf of plaintiff claims himself to be power of attorney holder of Smt. Sita Devi, who came to be substituted after the death of the original plaintiff. 2. The plaintiff did not appear in the witness box. Yogesh Kumar, the sole witness examined on behalf of plaintiff claims himself to be power of attorney holder of Smt. Sita Devi, who came to be substituted after the death of the original plaintiff. Learned counsel for the revisionists has placed reliance upon the judgment of Supreme Court in Janki Vashdeo Bhojwani and another Versus Indusind Bank Ltd. and others, (2005) 2 SCC 217 in contending that no one can delegate to anyone the power to appear in the witness box on his behalf. He further submitted that where a party to the suit does not appear in the witness box to prove his case, nor offers himself for cross-examination by the other side, a presumption would arise that the case set up by him is not correct. Reliance in this regard has been placed on another judgment of the Supreme Court in Vidhyadhar Versus Manikrao, (1999) 3 SCC 573 . 3. The finding regarding alleged default in payment of rent is also wholly illegal, as the entire amount was already deposited in proceedings under Section 30 of the Act. In case, the Act is held to be applicable, the deposits made under Section 30 would cover the period of alleged default. 4. The finding recorded by the Courts below regarding removal of wall by the revisionists is wholly illegal and perverse. He has referred to paragraph 8 of the written statement wherein, a specific plea was taken that initially only one shop was let out to the revisionists in the year 1987 and subsequently, when the other shop was let out in 1990, the plaintiff himself carried out modifications in the premises and removed the wall, constructed a store and a dochhati, so as to ensure security of the goods of the revisionists. The submission is that the finding recorded by the trial Court that the partition wall and other constructions were made by the revisionists is based on surmises and conjectures and on wholly irrelevant considerations, not sustainable in law. The submission is that the finding recorded by the trial Court that the partition wall and other constructions were made by the revisionists is based on surmises and conjectures and on wholly irrelevant considerations, not sustainable in law. In support thereof, he has placed reliance upon the judgments of this Court in : - (a) Ramesh Chand Rastogi Versus VIIIth Additional District Judge, Meerut and another, (2006) 2 ARC 160; (b) Satish Chand Agarwal Versus Ist ADJ, Shahjahanpur and others, 2005 3 ARC 484; (c) Om Prakash and another Versus IVth Additional District Judge, Muzaffarnagar and others,1989 1 ARC 119 in contending that removal of partition wall does not necessarily lead to an inference that there has been a reduction of value or utility of the demised premises, particularly, when there was no such pleading. 4. Per contra, Sri Atul Dayal, learned counsel for the plaintiff-opposite parties submitted that the finding recorded by the trial Court regarding non-applicability of Act is based on oral and documentary evidence and does not warrant any interference. He further submitted that Yogesh Kumar being son of the plaintiff was competent to depose on behalf of his mother. He also placed reliance on the following judgments of this Court namely : - (a) Nanak Chand Versus Om Prakash and others,1983 2 ARC 135; (b) Ashok Kumar and others Versus Additional District Judge, Bareilly and others, (1993) 1 ARC 181in contenting that where partition wall between two shops has been removed, it results in reduction in the value and utility of the shops and thus, the findings recorded in this regard are perfectly valid. 5. The first point for consideration is regarding applicability of the Act. In Ram Saroop Rai (Supra), the Supreme Court after considering the Explanation to sub-section (2) of Section 2 of the Act laid down the parameters on basis of which the date of construction of a building is to be determined, observing that : - “6. Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quoted above. When is a building deemed to have been completed? Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quoted above. When is a building deemed to have been completed? An analysis of Explanation 1 to 2(2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or other wise recorded by the local authority having jurisdiction. (2) Where a building has been assessed, it is the date on which the first assessment comes into effect. Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date. (3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction).” 6. The Supreme Court, thereafter, held that the date of construction has to be determined by the court in accordance with the above parameters based on municipal records and not on basis of oral evidence. The observations made in this regard in paragraph 8 of the judgment are extracted below : - “8. Unfortunately, it is not possible for the purchaser respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so, when exactly the completion took effect. The municipal assessment record produced in the court merely state “increased assessment”. It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. Even the recital in the rent deed that there was a new construction is 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.” 7. A perusal of the plaint reveals that there is no pleading as to whether the demised premises was subject to municipal assessment or not and if not, when it came to be first occupied. The emphasis of the plaintiff for seeking exemption from the provisions of the Rent Control Act, as would be clear from paragraph 5 of the plaint, was more on the ground that the shops were situated beyond the municipal limits of Nazibabad. The revisionists in the written statement denied the same and pleaded that the provisions of the Act were applicable, as the shops are situated within the municipal limits of Nazibabad. They also disputed that the shops were constructed in March 1987. 8. The trial Court placing reliance on certain receipts produced by the plaintiff regarding purchase of cement and bricks and rent note supposedly containing an admission that the shops being let out were constructed newly, held that the Act was not applicable. It is noteworthy that the rent note on which reliance was placed was an unregistered document and the defendants took a specific plea in the written statement that the original plaintiff at the time of letting out of the shop obtained his signatures on blank papers. It is also pertinent to note that the plaintiff did not appear in the witness box but only got examined Yogesh Kumar. The plaintiff also did not bring on record any municipal record to prove the date of first assessment nor even stated in his plaint nor in the oral testimony that the building is not subject to assessment, therefore, the date of first occupation would be relevant. The plaintiff also did not bring on record any municipal record to prove the date of first assessment nor even stated in his plaint nor in the oral testimony that the building is not subject to assessment, therefore, the date of first occupation would be relevant. The trial Court ignoring the statutory provisions contained in sub-section (2) of Section 2 of the Act, merely on the basis of statement of PW 1 and alleged admission contained in the rent note held that the provisions of U.P. Act No. 13 of 1972 were not applicable, which in the considered opinion of this Court is not sustainable in law. 9. The trial Court also made an observation while deciding the said issue that “it is admitted fact that property in dispute situates in village within 3 kilometres from the municipal limits.” The Court is finding it difficult to ascertain what the Courts below intended to hold thereby. If the Court proceeds by assuming that that the trial Court thereby meant that the building was situated beyond 3 kilometres of the municipal limits, it was not at all an admitted fact. The defendant-revisionists in paragraph 12 of the written statement specifically pleaded that the shop is situated within municipal limits. Consequently, the said finding is also not sustainable in law, based on misreading of the pleadings. 10. The revisionists have claimed benefit of deposits made under Section 30 of the Act, but which has been denied on the ground of non-applicability of the Act, therefore, the finding of default could also not be sustained and is hereby set-aside. 11. The specific plea of the revisionists in paragraph 8 of the written statement was that the partition wall was removed by the original plaintiff at the time of letting out of the second shop in the year 1990. The trial Court while deciding the said issue against the revisionists placed reliance upon a notice sent to the revisionists alleging material alteration and construction having been undertaken by them in the demised premises, which the defendants did not reply. The trial Court has held that by not sending reply to the said notice, the revisionists will be deemed to have accepted the allegation levelled against them in the said notice that they had demolished the partition wall and had undertaken construction of dochhati without the permission of the landlord in writing. The trial Court has held that by not sending reply to the said notice, the revisionists will be deemed to have accepted the allegation levelled against them in the said notice that they had demolished the partition wall and had undertaken construction of dochhati without the permission of the landlord in writing. The specific case of the revisionists was that these notices were not received. The trial Court has held that the notices were sent at the correct address and therefore even if the same was refused, there would be deemed service. Even, if the finding relating to deemed service of notice is accepted, but it was wholly unwarranted in the facts of the instant case to draw an inference therefrom that the revisionists have admitted the allegations made therein. Concededly, in the written statement, they had taken a specific plea that constructions in question including removal of the partition wall was done by the plaintiff himself. The Court was, therefore, required to record a finding in that regard based on evidence of the parties and not by drawing an adverse inference in not replying to the notice issued in that regard. The trial Court has also cursorily observed that the removal of the wall by the defendants stands proved from the oral testimony of the plaintiff's witness PW 1 and the statement of the defendants cannot be believed in this context. Although, it could not be disputed that adjudging credibility of witnesses was in the exclusive domain of the trial Court, but it has to record some reason for the same. The trial Court has not given any reason for discarding the testimony of the witnesses of the defendants. Consequently, the finding recorded in this regard also cannot be sustained and is hereby set-aside. 12. Since the finding that the partition wall was removed by the revisionists and constructions were undertaken by them is not being approved, therefore this Court is of the opinion that the issue whether removal of the partition wall would result in disfigurement or reduction in utility is not required to be examined nor the decisions cited in that regard by learned counsel for the parties. 13. In view of the discussion made above, the impugned judgment of the trial Court is set aside. 13. In view of the discussion made above, the impugned judgment of the trial Court is set aside. The matter is remitted back to the trial Court to decide the suit a fresh after taking into consideration the observations made above expeditiously, preferably within a period of three months from the date of production of a certified copy of this order. 14. The revision stands disposed of as above.