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2021 DIGILAW 154 (UTT)

Subhash Negi v. Rajeshwari Devi

2021-03-10

SHARAD KUMAR SHARMA

body2021
JUDGMENT Sharad Kumar Sharma, J. - The revisionist before this Court in this SCC Revision No. 5 of 2020, is a defendant in SCC Suit No. 6 of 2015, Smt. Rajeshwari Devi Vs. Subhash Negi. 2. The commencement of the proceedings of the SCC Suit, at the behest of the plaintiff/respondent, was as a consequence of the issuance of the notice under Section 106 of the Transfer of Property Act, which was issued by the plaintiff/respondent to the defendant/revisionist on 8th December, 2014, directing the defendant/revisionist to vacate the premises, i.e. the disputed shop, in question, over which, admittedly, as per the pleadings raised in the plaint, the tenancy in favour of the defendant/revisionist was created in 1991. Admittedly, there existed relationship of landlord and tenant. 3. The plaintiff/respondent, on the basis of the fact, that when despite of the expiry of time period provided in the notice, the tenement was not vacated, he had instituted the Suit for grant of decree of eviction on 15th May, 2015. On this Suit, the notices were issued to the defendant/revisionist, herein, and in reply to it, he has filed his written statement being, paper No. 15Ga, where primarily his contention to challenge the notice, as well as the proceedings itself, was drawn on its basis, was on the premise that the provisions of the Act No. 13 of 1972, would be applicable, and hence, the argument of revisionist was that the proceedings under Section 15 of the Provincial Small Causes Court Act, would not apply; was primarily based on the argument extended, to the extent that :- i. the rent of the premises admittedly, which was Rs.1800/-, apart from the water and house taxes, which were payable on it, i.e. @ of about Rs.400/- p.m., and after including the same, the cut off rent of Rs. 2000/-, which has been provided under the Act No. 13 of 1972, would be exempting the applicability of the Act, in relation to those tenements, which were carrying the rent above Rs.2000/-. 2000/-, which has been provided under the Act No. 13 of 1972, would be exempting the applicability of the Act, in relation to those tenements, which were carrying the rent above Rs.2000/-. The submission placed by the defendant/revisionist, was that since the rent plus taxes, will fall to be within the ambit of a rent as defined under Section 7 of the Act No. 13 of 1972, his contention was that the provisions of Act No. 13 of 1972, would be applicable, because the rent exclusively of Rs.1800/- should be taken into consideration and the taxes would be in exclusion to it. 4. In para 11 of the written statement, the defendant/revisionist had taken a stand that since the tenement, in question, being an old construction of 1972-73, coupled with the fact that since it carries a rent of Rs.1800/- p.m., the provisions of Act No. 13 of 1972, would be applicable and hence, the Suit itself would not be maintainable. 5. On the basis of the pleadings which were exchanged, between the parties, the learned Court of District Judge, Pauri Garhwal, had formulated the points of determination on 2nd June, 2016, which were to the following effect :- "(1) Whether the defendant is tenant in the disputed shop @ Rs.2200/- p.m. including sewerage and water tax ? (2) Whether plaintiff has terminated the tenancy of the defendant vide notice dated 8.12.2014 and notice is duly served upon him. If so, its effect ? (3) Whether the defendant is liable to be evicted on the basis of notice dated 8.12.2014 ? (4) Whether the provisions of U.P. Act No. 13/1972 are applicable in the disputed shop ? (5) Relief, if any ?" 6. The parties to the proceedings before the Court, in support of their respective contentions, particularly, the plaintiff/respondent, has taken a stand that as far as notice issued under Section 106 of the Transfer of the Property Act, was served on the defendant on 8th December, 2014, and hence, that would amount, to be a cut off for termination of tenancy and since it was not vacated within the time specified therein the notice, hence, the plaintiff/revisionist supported the proceeding accordingly. 7. 7. On the other hand, the defendant case was that since the rent of the tenement was Rs.1,800/-, as per tenant's perception the municipal and water taxes payable on it would not be included and treated, as to be part of rent and hence, the Act No. 13 of 1972, would be applicable. 8. Apart from the documentary evidence, which the tenant has adduced by way of list 65Ga, it included documents pertaining to the municipal tax assessment, i.e. paper No. 66-Ga, in order to substantiate his stand taken in defence that the construction happens to be an old construction and Act No. 13 of 1972, would apply. 9. Besides, these documentary evidences, as referred above, the oral statement was also recorded of the witness of the plaintiff/respondent, as well as the defendant/revisionist in support of their respective contentions. 10. The learned Trial Court holding that issue No.1 and 4 are interlinked with one another, as it entails consideration of almost same facts and law, had decided the same against the defendant/revisionist, holding thereof that the exemption as contemplated under Section 2 (g) of Act No. 13 of 1972, will not be attracted and be applicable for the reasons being that he has determined the rent after including in it, the house and water taxes and has concluded the rent to be Rs.2,200/-, which was outside the cut off limit, provided under the exemption Sub-clause Section 2 (g) of Act No. 13 of 1972. 11. When the matter was taken up, the learned Senior Counsel for the revisionist instead of venturing into the technicalities of the matter based on fact and appreciation of evidence, has himself voluntarily confined his argument to the findings which were recorded on issue Nos.1 and 4, by the impugned judgment of the learned SCC Court dated 30th November, 2019. 11. When the matter was taken up, the learned Senior Counsel for the revisionist instead of venturing into the technicalities of the matter based on fact and appreciation of evidence, has himself voluntarily confined his argument to the findings which were recorded on issue Nos.1 and 4, by the impugned judgment of the learned SCC Court dated 30th November, 2019. He has submitted that for the purposes to bring the tenement, in question, within the ambit of Act No. 13 of 1972, and in order to establish that the construction itself was an old construction of 1972-73, and for that purpose, he has placed reliance on the document, paper No. 66 C(2), the said document was not at all taken into consideration by the SCC Court, and no finding in relation thereto has been recorded by the learned Trial Court, either accepting or denying to accept the version extended by the defendant/ revisionist to establish that over the tenement, in question, the provisions of Act No. 13 of 1972 would be applicable. 12. This Court has minutely scrutinized the findings, which has been recorded on the aforesaid two issues Nos. 1 and 4 which were decided together, and had called upon the plaintiff/respondent's Counsel, to argue on the said aspect of non consideration of the impact of paper No. 66-C(2), and the manner in which, the Trial Court has dealt with the municipal assessment which was placed on record to determine the age of the building, in order to apply or not to apply the Act No. 13 of 1972, over the tenement, in question, and which could have also decided the aspect pertaining to the maintainability of the SCC Suit, itself. 13. This Court, along with the Counsel assistance, has gone through the aforesaid findings, and unfortunately, the finding on issue Nos.1 and 4, which has been recorded by the Trial Court, do not record any finding specifically on issue No. 4, i.e. with regard to the applicability of Act No. 13 of 1972, on the pretext of the construction being an old construction based on paper No. 66-C(2), which was an evidence on record, which was adduced by the defendant/revisionist in support of his contention. 14. 14. Non consideration of the document placed on record and relied by the defendant/revisionist, and particularly, when it goes to the foundation of the controversy and has an effect for deciding issue of maintainability, and in the absence of their being any specific finding recorded by the learned Trial Court, it would render the judgment of the Trial Court, to be perverse and without application of mind, as had failed to determine the issue No.4, on the basis of evidence before it. 15. Even the learned counsel for the plaintiff/respondent, principally could not point out and finding that the learned Trial Court, had at all considered and decided the issue No. 4, independently in order to sustain the proceedings under Section 15 of the Provincial Small Causes Court Act. 16. On that limited count itself, and without venturing further into the merits of the matter, since the judgment apparently happens to be perverse due to non consideration of the case pleaded and addressed before the Judge Small Causes Court, by way of evidence on record, its non consideration itself would result into a perversity and hence, the Revision is allowed. The impugned judgment as has been rendered by the Judge, Small Cause Courts on 30th November, 2019, is hereby quashed. The matter is remitted back to the Judge Small Cause Courts, Pauri Garhwal, to decide the SCC Suit No. 6 of 2015, Smt. Rajeshwari Devi Vs. Subhash Negi, afresh exclusively on its own merit; from the stage after framing of the issues, and the entire exercise of deciding the Suit would be undertaken by the District Judge/Judge Small Causes Court, within a period of six months from the date of production of certified copy of this judgment. 17. Subject to the above, the Revision stands allowed.