Court No. - 26 Restoration Application No. 336903 of 2009 in Case :- WRIT - A No. - 25877 of 2008 Petitioner :- Brijpal Singh Respondent :- Ram Narayan Trivedi Petitioner Counsel :- Akhilesh Kumar Pandey,A.C. Katiyar,O.P. Katiyar Respondent Counsel :- P.K. Sinha,S.C. Hon'ble Shishir Kumar,J.
This is an application for recall of the order passed by this Court dated
14.12.2009. Cause shown in the application is sufficient. The application is
allowed.The order dated 14.12.2009 is hereby recalled and the writ petition is
restored to its original number.
No order is passed as to costs.
Order Date :- 6.1.2010
V.Sri/-
Court No. – 26
Case :- WRIT – A No. – 25877 of 2008
Petitioner :- Brijpal Singh
Respondent :- Ram Narayan Trivedi
Petitioner Counsel :- Akhilesh Kumar Pandey,A.C. Katiyar,O.P. Katiyar
Respondent Counsel :- P.K. Sinha,S.C.
Hon’ble Shishir Kumar,J.
The restoration application having been allowed. The writ petition is restored
to its original number.
As the parties are agreed that the writ petition may be heard on merits and
decided, therefore, with the consent of the parties, the writ petition is being
heard on merits and is being disposed of.
This writ petition has been filed against the orders passed by the respondent
authorities dated 7.8.2007 and 28.2.2008 passed by the Revisional Court by
which the revision filed by the petitioenr has been dismissed.
The petitioner is a tenant of the shop of House No. 117/888 at the rate of 250/-
per month. It appears that the rent was not being paid, as such notice under
Section 106 of the Transfer of Property Act was given to the petitioner. That
was served on the petitioner. In spite of the aforesaid fact the rent was not
paid. Then a suit was filed by the respondent-landlord for ejectment and
arrears of rent. In spite of the notice, rent was not paid, then the suit was filed
before the Judge Small Causes Court for arrears of rent and ejectment which
was numbered as Suit No. 534 of 1994. Two specific issues were framed (i)
regarding service of notice under Section 106 of Transfer of Property Act and
(ii) Issue No. 2 was framed whether Act No. 13 of 1972 is applicable or not.
Judge Small Causes Court after considering the relevant documents as well as
the statement of the petitioner has recorded a specific finding that from Paper
No. 8-Ga which is a receipt of the Post Office and acknowledgment due,
Paper No. 7-Ga, it is proved that the notice was sent on correct address and
has been served upon the petitioner and therefore, the contention of the
petitioner was not accepted that notice was not served and it is invalid notice.
A specific finding has been recorded while considering the claim of the
parties that the construction of the house is of 1989 and the first time it was
assessed with the relevant authority dated 11.8.1989. A document to this
effect was submitted before the Court which was exhibited as 68-Ga and on
the basis of the statement also a finding has been recorded that as the first
assessment date is 11.8.1989, therefore, Act No. 13 of 1972 is not applicable.
In such a situation, by order dated 7.8.2007 Judge Small Causes Court had
decreed the suit for arrears of rent and ejectment. The petitioner filed a
revision and the revision too has been dismissed after recording a finding of
fact that the notice was sufficiently served upon the petitioner and as Act No.
13 of 1972 is not applicable, therefore, mere service of notice under Section
106 of the Transfer of Property Act is sufficient.
I have considered the submissions made on behalf of the parties and have
perused the record.
A finding of fact has been recorded by both the Courts below that notice
under Section 106 of Transfer of Property Act has been served upon the
petitioenr and as the first date of assessment is of 1989, therefore, the Act is
not applicable. It is well settled in law that the first date of assessment will be
treated to be the date of the construction of the building and if the notice has
been sent on the correct address by registered post and if it is not proved
otherwise, there is presumption that the notice is served. In my opinion the
finding recorded by the Courts below are findings of fact which need no
interference by this Court while exercising its power under Article 226 of the
Constitution of India.
The writ petition is devoid of merit and is hereby dismissed.
At last the learned counsel appearing for the respondent submits that some
reasonable time may be granted to the petitioner-tenant to vacate the said
premises. Accordingly, six months’ time is granted to the petitioner to vacate
premises in dispute subject to condition that the petitioner will submit an
affidavit in the shape of undertaking within three weeks from today before the
Judge Small Causes Court specifically indicating therein that he will handover
peaceful possession of said accommodation without inducting any third
person within a period of six months and will pay the arrears of rent as well as
current rent, then and in that condition, the Judge Small Cause Court will
grant six months time to the petitioner to vacate the said premises.
No order is passed as to costs.
Order Date :- 6.1.2010
V.Sri/-