JUDGMENT B. K. Rathi, J.
1. The suit was filed by opposite party No. 1 against the defendant-applicant and opposite party No. 2 for eviction from the disputed shop and recovery of arrears of rent. The defendant-applicant filed written statement, but it was struck off under the provisions of Order XV, Rule 5. C.P.C. That order of rejection was maintained by the High Court. Thereafter, the suit has been decreed by the trial court. Against that decree, the present revision has been filed.
2. I have heard Shri M. K. Gupta, learned counsel for the defendant-applicant and Shri P. K. Jain, learned counsel for opposite party No. 1.
3. It is contended that the main ground taken in the suit is that U. P. Act No. XIII of 1972, is not applicable to the disputed shop and the applicant is liable to ejectment. The only allegation regarding it in the plaint as well as in the replication is that the shop in dispute is newly constructed. It is argued that it has nowhere been mentioned as to when it was constructed.
4. The learned counsel for the revisionist has also referred to the evidence recorded by the trial court. The statement of the two witnesses only were recorded. The opposite party No. 1 in her statement has said that the shop was constructed in the year 1988. The suit has been filed in the year 1999. The trial court, therefore, held that U. P. Act No. XIII of 1972, does not apply.
5. It has been argued by Shri M. K. Gupta, learned counsel for the revisionist that according to the Explanation-1 of Section 2 (2) of the Act- "the construction of the 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....." and in case of the building subject to the assessment, the date on which the first assessment thereof came into effect..........." and in the absence of any such report ; record or assessment, the date on which it was actually occupied......."
6. It is contended that the Act has provided the manner in which the date of construction should be decided. Therefore, it should only be decided in accordance with this provision. That in view of this explanation, the date of the construction can either be when it was first assessed or the date of the first occupation. That no evidence regarding it has been produced by the opposite party No. 1. That there is no document on the record to show as to when the building was first assessed or the construction was reported to the Municipal Board. That there is also no evidence to show as to when the building was first occupied. The only evidence on this point is the statement of the opposite party No. 1 that it was constructed in the year 1988 and let out to the applicant in the year 1995. A perusal of the entire statement shows that she had nowhere stated that the applicant was the first occupant of the building.
7. In the result, I find that there is no evidence as required by the Explanation referred to above as to when the construction of the building was complete. The trial court, therefore, has erred in decreeing the suit.
8. That decision of the Apex Court in Ram Swaroop Rai v. Smt. Lilawati. 1980 ARC 466 (SC), may be referred with benefit. It was held in this case that the landlord should prove that the building is beyond the ambit of the rent control legislation. It was further observed "that the statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished."
9. The suit proceeded after the defence of the applicant was struck off. Therefore, it appears that the plaintiff opposite party No. 1 did not adduce the entire evidence. In the circumstances, it will not be proper to dismiss the suit, and the matter should be sent back for re-decision after providing fresh opportunity to opposite party No. 1 to produce evidence regarding the date of construction in accordance with Proviso-I of Section 2 (2) of the Act.
10. Accordingly, the revision is allowed and the impugned judgment and decree are set aside. The matter is sent back to the trial court for re-decision after fresh opportunity to the plaintiff-respondent No. 1 to produce evidence in the light of the observations made in the body of the judgment.
11. In the circumstances, the parties are directed to bear their own costs.