Heard Sri P.K. Jain and Sri S.K. Tripathi, learned counsel for the applicant and Sri Harish Chandra, learned counsel appearing for the opposite party.
The present revision arises out of S.C.C. Suit No. 33 of 2008 instituted by the plaintiff-opposite party herein for recovery of arrears of rent and ejectment of the defendant-tenant in respect of Flat No. S.R.A.-2A, Ground Floor situate in residential area, namely, Shipra Rivera Indrapuram, Pargana Lone, Tehsil and District Ghaziabad.
It was stated that the provisions of U.P. Act No. 13 of 1972 are not applicable as monthly rent is Rs.2500/-. The suit was contested on various pleas including that the plaint was not properly instituted by Sri Santosh Kumar Rungta who is one of the directors of the Company as he was not authorized to institute the suit. Certain other pleas were also raised. The suit has been decreed by the judgment and decree dated 09.04.2012. Hence, the revision.
Learned counsel for the applicant raised the following points for consideration of this Court ?
The plaint was not properly filed. It was submitted that the plaint was signed by Sri Santosh Kumar Rungta. On the day when he signed the plaint, there was no resolution by the Company authorizing him to do so.
The property in dispute was purchased by the plaintiff-Company but no notice of transfer of property to the present plaintiff was given to him either by the previous landlord or by the present plaintiff.
The damages awarded by the trial court is excessive and arbitrary.
Learned counsel for the plaintiff-opposite party, on the other hand, supports the judgment under revision.
Considered the respective submissions of the learned counsel for the parties and perused the record.
At the very out set, it may be noted that it was not disputed by the applicant that the building in question is not a controlled building. Provisions of U.P. Act No. 13 of 1972 are not applicable to the building in question.
Under issue no. (1) the trial court has examined as to whether Sri Santosh Kumar Rungta was validly authorized to sign the plaint and to institute the suit. It is not in dispute that he is one of the directors of the plaintiff-Company. Only argument raised by the learned counsel for the applicant is that the authorization in his favour is of subsequent date. Learned counsel for the applicant further submits that when the notice determining the tenancy was given, there was no authorization in favour of Sri Santosh Kumar Rungta.
Be that as it may, it is not in dispute that he is one of the directors of the Company and there is authorization in his favour, may be of subsequent date. There is no objection by any of the directors of the Company with regard to the act of Sri Santosh Kumar Rungta. The objection raised by the defendant-tenant is technical in nature. Moreover, the objection in such form was not raised before the trial court. The applicant cannot be permitted to raise such a technical objection for the first time in revision. Therefore, I do not find any merit so far as the point no. 1 is concerned.
In view of the finding recorded by the trial court under issue no. 2 that notice was given about purchase of property, the argument of the learned counsel for the applicant on point no. 2 has no substance.
So far as the quantum of mesne profit is concerned, the Court may take judicial notice of the fact that prices of the immovable properties have skyrocketed and the finding in this regard is based on appraisal of evidence. It is essentially a question of fact. Then the learned counsel for the applicant submits that the court below was not justified in awarding enhanced damages from 08.06.2008, the day on which period of 30 days given in the notice expired. The said argument has no substance in view of in the decision of the Apex Court in Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd., (2005) 1 SCC 705.
Viewed as above, I do not find any merit in the revision.
At the end, learned counsel for the defendant-tenant seeks some reasonable time to vacate the disputed accommodation.
The defendant-tenant is granted time upto 31st December, 2012 to vacate the disputed accommodation subject to the following conditions:
(1) The defendant-tenant shall deposit the entire arrears of rents and damages for use and occupation, after adjusting the amount, if any, already deposited for the period upto 31st December, 2012 within a period of one month from today before trial court.
(2) Within one month, the defendant-tenant shall file an undertaking on affidavit before the trial court that he will vacate the disputed accommodation on or before 31st December, 2012 and shall hand over its peaceful vacant possession to the plaintiff-Company without creating any third party interest.
In case of default in compliance of any of the conditions stipulated above, the time granted shall stand vacated automatically.
The revision is dismissed, summarily.
(Prakash Krishna,J) Order Date :- 1.5.2012 MK/