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2024 DIGILAW 2498 (ALL)

Neeraj Kumar Rastogi v. Udaibhan Gupta

2024-12-10

AJIT KUMAR

body2024
JUDGMENT : Ajit Kumar, J. 1. Sri Suresh Chandra Verma, learned Advocate has his Vakalatnama on behalf of the petitioner which is taken on record. 2. Heard Sri Suresh Chandra Verma and Sri Nitin Chandra Mishra, learned counsel for the petitioner and Sri Sanjay Kumar Nigam, learned counsel for the respondent. 3. Tenant/petitioner namely Neeraj Kumar Rastogi has challenged the judgment and decree for eviction passed in S.C.C.Case No. 86 of 2015 as well as the judgment and order dated 19.09.2019 passed in S.C.C. Revision No. 110 of 2018. 4. Suit for eviction was decreed by the Small Cause Court upon determination of tenancy/lease rights with the service of notice dated 03.05.2014 issued by the landlord upon the tenant/ petitioner for the reason that the demised property was a construction of the year 1995-96 and hence not covered under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short 'Act No. 13 of 1972'). The relevant issues that were framed were regarding applicability of the Act as well as the service of notice dated 03.05.2014. After the parties led their evidence upon the issue, the trial court found the statement made by the landlord PW-1 regarding construction of shops made by him in the year 1995-96 to have corroborated the plaint allegations whereas, the defendant/ tenant failed to prove to the contrary. The Court proceeded to record a finding to the effect that while in para 2 of the plaint, plaintiff took a clear stand that the constructions were raised in the year 1995 but the defendant in reply to the said paragraph stated that the averments as have been made were not admitted and this much was only admitted that the landlord was issuing receipts against the rent, inasmuch as, during the cross examination, defendant stated that he was not aware as to whether the construction of shops took place in 1995. The court also recorded a finding that while in para 5 of the plaint allegation was made to the effect that Act No. 13 of 1972 was not applicable to the building in question, in reply thereto only a vague and evasive denial was made. The court also recorded a finding that while in para 5 of the plaint allegation was made to the effect that Act No. 13 of 1972 was not applicable to the building in question, in reply thereto only a vague and evasive denial was made. The Court also proceeded to record a fact that in the notice dated 03.05.2014 itself that landlord had clearly stated that the constructions were made of the shops in 1995 and, therefore, Act No. 13 of 1972 was not applicable and that the tenant (you were) in tenancy since 09.11.2001, while reply to the notice was made on 12.05.2014. 5. In the circumstances, therefore, Court held that there was nothing to disbelieve the pleadings raised in the plaint as well as the statements made in examination in chief and cross examination of the respective parties and therefore, the findings came to be returned that the demised property did not fall within the scope and ambit of Act No. 13 of 1972. These findings have come to be affirmed in revision, however, the court further dealing with the additional argument advanced in revision by the revision applicant to the effect that no sanction map was filed in proof of the statement made in the plaint that constructions in question were raised sometimes in 1995-96, held that since plaintiff had proved the plaint allegations in his statement made on oath and the defendant/ revision applicant had failed to lead any evidence in rebuttal, there remained no doubt in believing that the shop in question was constructed sometimes in the year 1995-96. Thus, both the courts below having held the Act was not applicable found the notice issued under Section 106 of Transfer of Properties Act, 1872 determined the tenancy and accordingly the suit was liable to be decreed. 6. Thus, both the courts below having held the Act was not applicable found the notice issued under Section 106 of Transfer of Properties Act, 1872 determined the tenancy and accordingly the suit was liable to be decreed. 6. Assailing the aforesaid two judgments of the Small Cause Court as well as the court sitting in revision, learned counsel for the petitioner sought to urge before the Court that the findings are not sustainable for the reason that no documentary evidence was led by the plaintiff/ landlord to prove the plaint allegations qua construction of the shop taking place sometimes in the year 1995- 96 but he could not dispute that while the landlord stated very clearly in the plaint that the construction of shop was made in 1995-96 and hence Act No. 13 of 1972, did not apply and yet in the written statement filed by the tenant/ petitioner there was no denial. Still further in the notice that was sent to the tenant/petitioner on 03.05.2014 it clearly stated vide para 2 as under: 7. In reply to the said notice made by the tenant/petitioner on 12.05.2024 he simply stated vide para 2 as under: 8. I further find that in the plaint allegations while plaintiff made a specific statement in para 2 & 5 as under: 9. In reply thereto in written statement, the petitioner replied vide para 2 only as under; he failed to reply para 5: 10. From para 2 of the written statement as quoted above, it is clear that petitioner simply says that the pleading by the plaintiff is only partly admitted to the extent that landlord used to issue receipts against the rent. Thus, there is no denial of plaint allegations that Act No. 13 of 1972 does not apply and further I find that no reply has been made of para 5. Even in the additional pleas there is no such pleading raised in the written statement qua applicability or non applicability of Act No. 13 of 1972. 11. Learned counsel for the petitioner could not point out also from any document that he raised this plea before the court that Act No. 13 of 1972 was no applicable and that he had sufficient material to rebut the plaint allegations. 12. 11. Learned counsel for the petitioner could not point out also from any document that he raised this plea before the court that Act No. 13 of 1972 was no applicable and that he had sufficient material to rebut the plaint allegations. 12. In the considered view of the Court when the pleadings are pitted against pleadings then it is a duty cast upon the defendant to clearly and specifically deny the averments of the plaint that he does not admit this particular statement or a particular fact and in case if there is simple denial to the paragraph then additional pleas should be very specific in making positive statement which would counter the plaint allegations. 13. In the case in hand,I am not able to draw any inference from any of the paragraphs of the entire written statement which may be indicative of specific denial to the non applicability of the Act No. 13 of 1972. Interestingly, even in the reply to the notice sent by the landlord under Section 106 of Transfer of Properties Act, 1872 the tenant/petitioner failed to deny this fact stated therein that the Act was not applicable. 14. In view of the above discussions and the concurrent findings of fact that have come to be returned by both the courts below, I do not find any good ground to interfere with those findings. 15. Petition is accordingly held to be devoid of merit and is resultantly dismissed. 16. Interim order, if any, stands discharged. 17. No order as to cost.