Court No. - 7 Case :- WRIT - A No. - 50020 of 2009 Petitioner :- Trilok Chand & Others Respondent :- Smt. Riyaz Fatma Petitioner Counsel :- K.M. Garg Respondent Counsel :- Amit Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the parties and perused the record.
This petition by the tenant is directed against concurrent orders
dated 27.10.2005 and 29.8.2009 by which both the courts below have
decreed the eviction suit filed by the respondent-landlord on the ground
of arrears of rent etc.
It appears that the respondent-landlady instituted a SCC Suit no.
14 of 1996 against the petitioner-tenant for recovery of arrears of rent
and damages for eviction from the shop in dispute mainly on the ground
that the provisions of U.P. Act NO. XIII of 1972 (here-in-after referred to
as the act) do not apply and that the tenant has sublet the disputed shop
to one Raghubir Singh and Raju and has not paid the rent from 1.1.1991
together with house rent etc. and despite a notice determining the
tenancy by registered post, neither the shop was vacated nor arrears of
rent were paid.
The petitioner-tenant contested the suit inter-alia on the ground
that the Act applies to the disputed shop and since the husband of the
landlady refused to accept the rent, he had deposited it in proceedings
under section 30 of the Act and there was no default and the rent has
been paid. Subletting was also denied.
After the parties led their evidence, the Judge, Small Cause Court
vide order dated 22.7.1997 held that the Act was applicable and the
tenant was not a defaulter but it went on to hold that the tenant was an
unauthorized occupant without an order of allotment and therefore partly
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decreed the suit for recovery of rent but refused eviction. In the resultant
revision, the entire suit itself was dismissed vide order dated 16.9.1998.
The landlady challenged the said two decision in writ petition no.40881 of
1998 and a learned Single Judge of this Court allowed the writ petition
vide order dated 25.2.2005 holding that both the courts below have erred
in not considering the applicability of the Act in accordance to section 2(2)
of the Act and accordingly, it remanded the matter to be decided afresh
to the trial court in accordance with observation made therein.
After remand, both the courts below, taking into account the
assessment order of the disputed shop and other evidence on record,
found that the Act was not applicable as it was assessed to tax for the
first time with effect from 1.4.1991. Further, after recording a finding that
the petitioner had defaulted in payment of rent, it has decreed the suit.
It is urged that both the courts below have failed to address
themselves to the main question as on which date the disputed shop
came within the limit of the local authority and actual date of construction
and as no actual date of construction has been proved and therefore the
judgements are vitiated. In support thereof, he has relied upon a decision
of this Court rendered in the case of Ram Sanehi Vs. 3rd Additional
District Judge and others [1992 (2) A.R.C. 653].
No doubt, in Ram Sanehi’s case it was held that where a building
had already been constructed but subsequently came within the limit of
the local authority, section 2 (2) of the Act may not apply. However, in
the present case, the facts are entirely different. The petitioner had taken
up a consistent stand that the constructions were made in 1950 when his
father was inducted as a tenant but no worthwhile evidence was led to
prove it. To the contrary, the landlord led evidence to prove that the
constructions were started in 1986 and completed in 1990 and the first
assessment was made with effect from 1.4.1991. These findings of fact
are based on evidence and have not been shown to be perverse.
Therefore, in the opinion of the court, there was no occasion for the
courts to have dealt upon the aforesaid question in the teeth of the
evidence on record.
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It is then urged that the assessment order produced was for a
different shop and the petitioner was not shown to be a tenant therein.
It is worthwhile that upon the application of the petitioner, the
official of the local authority was summoned along with records with
regard to the disputed shop and he appeared and proved that the shop
was constructed within the limit of the local authority and was assessed
to tax for the first time with effect from 1.4.1991. the courts below have
found that the petitioner did not claim the tenancy of any other shop but
the disputed shop whose record was produced by the DW2. Further, it is
apparent from the record that the specific case of the respondent-landlord
was that he had inducted Raghubir Singh and Raju as subtenant whose
possession is shown in shop no. 4 in the list. Thus, the argument cannot
be accepted.
Lastly it is urged that the plaintiff did not appear in the witness box
to prove default and therefore the suit could not have been decreed. He
has relied upon a decision of the Apex Court rendered in the case of
Janki Vasudeo Bhojwani Vs. Industrial Bank [2005 (1) A.W.C. 138].
So far as the ratio laid-down in Bhojwani’s case is concerned, they would
not apply to this case as the facts therein were entirely different. The
courts below have found that it was the petitioner’s case himself that the
rent was being realized on behalf of the plaintiff by her husband who
entered the witness box and proved the default. Therefore, mere non-
examination of the plaintiff, on the facts of this case, was not fatal. Thus,
this argument also cannot be accepted.
No other point has been urged.
For the reasons above, this is not a fit case for interference under
Article 226 of the Constitution of India. Rejected.
After the order had been dictated but before it could be signed,
learned counsel for the petitioner, upon instructions of his client, has
given an undertaking which is also supported by an affidavit, that if a
reasonable time is given, he would handover peaceful vacant possession
to the respondent-landlord. Accordingly, the petitioner shall hand over the
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vacant possession of the disputed premises to the respondent-landlord
without creating any third party rights on or before 25.10.2010. He will
also pay the entire rent uptil that date to the respondent-landlord within a
period of four weeks from today. The amount already deposited would be
adjusted. In case of default in payment of rent, the petitioner shall be
liable for eviction forthwith.
Order Date :- 27.7.2010
AU