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2024 DIGILAW 1431 (ALL)

Jitendra Kumar Rajput v. Pranveer Singh

2024-05-27

NEERAJ TIWARI

body2024
JUDGMENT : Hon'ble Neeraj Tiwari, J. 1. Heard Sri R. K. Mishra, learned counsel for the revisionist and Sri Prateek Sinha, learned counsel for the respondent. 2. By means of S.C.C. Revision No. 29 of 2020, revisionist has challenged the impugned judgement and decree dated 20.01.2020 passed by learned Additional District Judge, Court No. 20, Kanpur Nagar in S.C.C. Suit No. 70 of 2017 (Pranveer Singh Vs. Jitendra Kumar Rajpoot). 3. By means of S.C.C. Revision No.27 of 2020, revisionist has challenged the impugned judgement and decree dated 20.01.2020 passed by learned Additional District Judge, Court No. 20, Kanpur Nagar in S.C.C. Suit No. 72 of 2017 (Pranveer Singh Vs. Madhukar Pandya). 4. Since the common question of law and facts are involved in both the revisions, therefore, with the consent of counsel for parties, both the revisions are being decided together by a common judgment. 5. Learned counsel for the revisionists-defendants submitted that revisionists are the tenants of plaintiff-respondent since the year 2000 and paying rent at the rate of 1250/-p.m. including taxes. He has received a notice of eviction dated 16.06.2014 stating therein that the provision of Uttar Pradesh Act No. 13 of 1972(hereinafter, referred to as, ‘Act, 1972’) are applicable to the house in question. The revisionists have replied the said notice vide his reply dated 02.07.2014. Revisionists have further received second noticed dated 03.09.2015 for arrears of rent and to vacate the accommodation with the specific averment that Act, 1972 is applicable. Revisionists have also replied the said notice stating therein that rent is being deposited and is paid up to 31.12.2015. 6. Lastly, he received third notice dated 13.05.2017 under Section 106 of Transfer of Property Act, 1882(hereinafter, referred to as ‘Act, 1882’) and in the said notice a new stand was taken by the respondent-plaintiff that wrongly in the notice dated 16.06.2014 in para no. 6, it was mentioned that the provisions of Act, 1972 are applicable and stated for the first time in the notice dated 13.05.2017 that the provisions of Act, 1972 would not be applicable. The revisionists-defendants submitted their reply dated 29.05.2017. Based upon the aforesaid notices, respondent-plaintiff has filed SCC Suit No. 70 of 2017 & SCC Suit No. 72 of 2017 against the revisionists-defendants respectively seeking a decree of eviction as well as recovery of arrears of rent. 7. The revisionists-defendants submitted their reply dated 29.05.2017. Based upon the aforesaid notices, respondent-plaintiff has filed SCC Suit No. 70 of 2017 & SCC Suit No. 72 of 2017 against the revisionists-defendants respectively seeking a decree of eviction as well as recovery of arrears of rent. 7. He firmly submitted that once the applicability of Act, 1972 is admitted by the respondents-plaintiffs in the notices dated 16.06.2014 and 03.09.2015, it would be treated admission on the part of the respondents-plaintiffs and he cannot take U-turn in the third notice dated 13.05.2017 that Act, 1972 would not be applicable. Therefore, revisionists-defendants are entitled for benefit of Section 20 (4) of Act, 1972, as they are regularly depositing the rent @ Rs. 1250/- per month. In support of his contention, learned counsel for the revisionists has placed reliance of judgment of Hon’ble Apex Court in the case of Avadh Kishore Dass Vs. Ram Gopal and Others, 1979 0 AIR (SC) 861. 8. He next submitted that first assessment of house in question was made in the year 1979 which is prior to the cut of date i.e. 26th April, 1985, therefore, under the facts of the case Act, 1972 would be applicable. He also pointed out that learned Judge has relied upon the second assessment which was made on 11.10.1985 and has held that Act, 1972 shall not be applicable. Leaned counsel for the revisionists-defendants firmly submitted that once the first assessment has taken place in the year 1979, the Act, 1972 would be applicable. 9. He lastly submitted that once there is admission about the applicability of Act, 1972 in notices dated 16.06.2014 and 03.09.2015 and further, first assessment took place in the year 1979, Act, 1972 would be applicable and there is no scope of adjudication on this point. 10. He next submitted that Suit No. 70 of 2017 & 72 of 2017 have been instituted by the respondent-plaintiff through power of attorney and it is settled principle of law that power of attorney holder can only depose about the facts which are within his personal knowledge and not about the facts which are not within his knowledge or are within personal knowledge of person, who he represents or about facts that may have transpired much before he entered to scene. 11. 11. Per contra, Sri Prateek Sinha, learned counsel for the respondent-plaintiff vehemently opposed the submission of learned counsel for the revisionist and submitted that illustration of Section 113 of Act, 1882 clearly provides that in case after issuance of first notice, if the house is not vacated and second notice is issued, the first notice is to be treated waived of. He next submitted that this ratio of law has also been affirmed by the Apex Court in the matter of Tayabali Jaferbhai Vs. M/s Ashan and Co. andothers: AIR 1971 SC 102 and by this Court in Civil Misc. Writ Petition No. 14421 of 1997(Anish Ahmad Vs. Special/Additional District Judge, Saharanpur and others), decided on 01.05.1997. 12. He next submitted that it is undisputed that pursuant to the notices dated 16.06.2014 and 03.09.2015, no suit has been filed, therefore, the contents of both the notices cannot be treated as admission. He next pointed out that undisputedly the SCC Suit No. 70 of 2017 & 72 of 2017 are based upon the third notice dated 13.05.2017, in which it is clearly stated that Act, 1972 would not be applicable, therefore, contention so raised by learned counsel for the revisionists-defendants is bad in law and is not sustainable. 13. He next submitted that so far as the document about the assessment year issued by Nagar Nigam, Kanpur Nagar is concerned, the document produced before the Court clearly indicates that first assessment was made in the year 1979 and after construction of four new shops the fresh assessment took place on 11.10.1985 which may be taken into consideration for applicability of the Act, 1972. 14. He next submitted that once the municipal tax record is available, no oral evidence is required for first assessment. In support of his contention, he placed reliance on the judgment of this Court in the matter of Aziz Alam@Guddu Vs. Smt. Malti Vaish: 2017(3) ARC 811. 15. Learned counsel for the respondent-plaintiff further submitted that so far as argument of deposition of power of attorney is concerned, it is oral submission and this fact has not been pleaded and is not the part of written statement filed in SCC Suit No. 70 of 2017 & 72 of 2017, therefore, this may not be raised at this stage. Learned counsel for the respondent-plaintiff further submitted that so far as argument of deposition of power of attorney is concerned, it is oral submission and this fact has not been pleaded and is not the part of written statement filed in SCC Suit No. 70 of 2017 & 72 of 2017, therefore, this may not be raised at this stage. Apart from that, learned counsel for the revisionists-defendants has also not pointed out as to what deposition is made by the power of attorney holder beyond his personal knowledge, therefore, argument of learned counsel for the revisionist-defendant may not be accepted. 16. I have considered the rival submissions advances by learned counsel for the parties, perused the record and the judgments relied upon. 17. There are two issue before the Court to decide. The first issue is that in case of issuance of more than one notice and based upon last notice, a suit is instituted, what would be the fate of earlier notice. Second issue before the Court is with regard to municipal assessment made by the Municipal Corporation of a house at two different stages. 18. Now, coming to first issue i.e. about the status of notices issued from time to time. Section 113 of the Act, 1882 is relevant for this issue, which deals with the waiver of notice to quit. Section 113 of the Act, 1882 is being quoted hereinbelow: “113. Waiver of notice to quit--A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustrations (a) A the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived. (b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived." 19. This issue was before the Hon’ble Apex Court in the matter of Tayabali Jaferbhai(Supra). Relevant paragraphs of the said judgment are being quoted hereinbelow: “6. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived." 19. This issue was before the Hon’ble Apex Court in the matter of Tayabali Jaferbhai(Supra). Relevant paragraphs of the said judgment are being quoted hereinbelow: “6. In the present case there can be no doubt that the serving of the second notice and what was stated therein together with the claim as laid and amplified in the plaint showed that the landlord waived the first notice by showing an intention to treat the tenancy as subsisting and that this was with the express or implied consent of the tenant to whom the first notice had been given because he had even made payment of the rent which had been demanded though it was after the expiration of the period of one month given in the notice. 7. It further appears that the rent was sent by the tenant treating the tenancy as subsisting and not as having come to an end by virtue of the first notice. There is another significant fact which shows that it was the second notice which was considered by the landlord to be the effective notice. It was in the notice sent in October 1957 that the landlord, for the first time, raised the ground of personal necessity. In the suit requirement of personal necessity was made one of the main grounds on which eviction was sought. In the first notice which was sent in June 1956 no such requirement or ground had been mentioned. It was not open, therefore to the landlord to say that he did not, want to rely on the second notice and should be allowed to base his action for eviction only on the first notice containing the ground of the default in payment of arrears of rent. We are satisfied that the suit of the landlord was rightly dismissed though we have sustained its dismissal on different reasoning.” 20. Again the very same issue was before this Court in the matter of Anish Ahmad(Supra). We are satisfied that the suit of the landlord was rightly dismissed though we have sustained its dismissal on different reasoning.” 20. Again the very same issue was before this Court in the matter of Anish Ahmad(Supra). Relevant paragraph of the said judgment are being quoted hereinbelow: “A landlord can waive the notice as provided under Section 113 of Transfer of Property Act which provides that the notice given under Section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. The person claiming that the notice has been waived has to satisfy two essential ingredients (i) the intention of the landlord was to treat the lease as subsisting, and (ii) he had a knowledge of the fact that this conduct amounts to waiver.” 21. From the perusal of the provision of Act, 1882 as well as ratio of law laid down Courts in Tayabali Jaferbhai (Supra) and Anish Ahmad(Supra), it is apparently clear that in case lessor gives notice to lessee to give the property leased and lessee remains in possession and thereafter, lessor gives second notice to lessee to quit, the first notice is waived of. The legislation is very much clear on this point. If no action has been taken upon the issuance of earlier notice and there is no change of status of lessor and lessee, the earlier notice would be waived off after issuance of latter notice. Therefore, this Court is of the firm view that any admission made by the learned counsel for the revisionist-defendant based upon first and second notice would be of no use. In the present case, it is undisputed that neither any SCC Suit is filed, nor the house is vacated pursuant to first and second notice, therefore, both the notices would be waived of after issuance of third notice. 22. Now, coming to the judgment relied upon by the learned counsel for the revisionists-defendants in the matter of Avadh Kishore Dass(Supra), which is about the admission. 22. Now, coming to the judgment relied upon by the learned counsel for the revisionists-defendants in the matter of Avadh Kishore Dass(Supra), which is about the admission. This Court is of the view that there would be no effect of first and second notice for the purpose of admission as the notices would be treated waived off in terms of Section 113 of the Act, 1882 as well as law laid down by the Hon’ble Courts in this regard. Therefore, this judgment is not coming in the rescue of the revisionists-defendants as there is no admission on record made by the respondent-plaintiff and withdrawn later on. 23. Now, coming to the second issue about the assessment. It is defined under Section 2(2) of the Act, 1972. The said Section is being quoted hereinbelow: “[Except as provided in Sub-section (5) of Section 12 Sub-section (1A) of Section 21, Sub-section (2) of Section 24, Section 24A 24B, 24C, or Sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed]: [Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a cooperative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years than the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), which ever is shorter]: [Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of [forty years] from the date on which its construction is completed. Explanation I.-For the purposes of this Sub-section, (a) The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants. (b) "construction" includes any new constructions in place of an existing building which has been wholly or substantially demolished; (c) Where such substantial addition is made to an existing building, that the existing building becomes only a minor part thereof, the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition." ” 24. This issue was considered by Hon’ble Apex Court in the matter of Ram Swaroop Rai Vs. Smt. Leelawati, (1980) 3 SCC 452 , and the Apex Court has held that in case where tax records are available, oral evidence remains inconsequential for the purpose of first assessment. This Court in the matter of Aziz Alam@Guddu(Supra) has reiterated the the ratio of law laid down by the Hon’ble Apex Court in the matter of Ram Swaroop Rai(Supra). Relevant Pragraph of Aziz Alam@Guddu(Supra) are being quoted hereinbelow: “8. The aforesaid judgment of the Apex Court conclusively holds that in a case where tax records are available, oral evidence remains inconsequential and it is the documentary evidence submitted, as per the provisions of Rent Control Act, 1972, which is relevant for deciding the date of completion of building for the purpose of Rent Control Act. Thus, the oral admission made in the cross examination cannot be looked into by the Court. Thus, the oral admission made in the cross examination cannot be looked into by the Court. There remain two house tax assessments on record, one claims to be first assessment of the year 1992 of the entire building and another a house tax assessment of the year 1986 of the shop in dispute. They both are of a date later to 26.04.1985. Even presuming, on basis of the house tax assessment register submitted by the revisionist/tenant of the year 1986, the building was constructed in the year 1986, still the same was constructed after 26.04.1985 and thus is exempted from the application of Rent Control Act, for a period of 40 years. 9. Present suit for eviction admittedly was filed within the said period of 40 years. Hence, conclusion of the court below that the provisions of Rent Control Act, 1972 are not applicable on the property in dispute cannot be faulted with. ” 25. From the perusal of the aforesaid Section, it is apparently clear that in case new construction is made to the extent that existing building becomes only a minor part, the whole building including existing part shall be deemed to be constructed on the date of completion of said addition. In the present case, earlier, assessment was made in the year 1979 having a tin shade, road, a gumti, some open land. Later on, two shops, four bed rooms, one kitchen, one store & one portico were constructed and cancelling the earlier assessment, new assessment was made on 11.10.1985 by the municipal authority. From the perusal of Section 2(2), it is also clear that in case any building is constructed after 26.04.1985, Act, 1972 would not be applicable and after construction, assessment so made is to be treated first assessment and. Apart that, once the municipal record of assessment is available, no oral evidence is required. 26. So far as last issue argued by the learned counsel for the revisionists-defendants about the authority of power of attorney is concerned, the same is having no relevance for the reasons that it was not part of the written statement and being confronted by the Court this fact could not be disputed by learned counsel for the revisionists-defendants. 27. Therefore, under such facts and circumstances of the case, I found no infirmity or illegality in both the impugned judgments and decrees dated 20.01.2020. 28. 27. Therefore, under such facts and circumstances of the case, I found no infirmity or illegality in both the impugned judgments and decrees dated 20.01.2020. 28. Revisions lack merit and are accordingly dismissed. 29. No order as to costs.