Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 5107 of 2018 Petitioner :- Dharam Raj Singh Respondent :- Santosh Kumar Agrawal Counsel for Petitioner :- Jitendra Pal Singh Chauhan Counsel for Respondent :- Krishna Mohan Garg
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and Sri Krishna Mohan Garg, learned counsel appearing for the respondent.
Present petition has been filed seeking setting aside of the impugned order dated 23.5.2018 passed by the Additional District Judge, Court No. 1, Bijnor in SCC Revision No. 11/2017, Dharam Raj Singh Vs. Santosh Kumar Agrawal as well as order dated 25.10.2017 passed by the Judge of Small Cause Court, Bijnor in SCC Suit No. 29/2013, Santosh Kumar Agrawal Vs. Dharam Raj Singh filed as Annexures 5 an 6 respectively to the petition.
By the impugned judgment dated 25.10.2017 the suit filed by the plaintiff respondent was allowed holding that the first assessment of the shop is of the year 2005 and as such Act 13 of 1972 is not applicable. The notice is validly served and the same was also replied and as such the service of notice is sufficient. It was found that the tenant is not in arrears of rent and the issue of rate of rent was decided in favour of the petitioner herein. The revision filed against the same was dismissed.
Submission of learned counsel for the petitioner is that the judgments of the courts below are perverse and based on conjectures and surmises. The notice dated 19.8.2013 does not terminate the tenancy and the notice is invalid. It is further submitted that the defendant - petitioner has paid entire amount of rent to the landlord and he is not a defaulter and as such there was no justification in allowing the suit.
Per-contra, learned counsel for the respondent has supported the impugned orders.
I have considered the rival submissions and have perused the record.
From perusal of record, I find that initially the suit of the landlord was dismissed on the groud that since there was no default, therefore, the notice is invalid. The revision filed against the same by the landlord was allowed and the matter was remanded back to the trial court. Thereafter, by the the impugned order the trial court categorically held that the Act is not applicable. The notice was duly served and replied by the defendant. It is also not in dispute that the defendant petitioner was not found defaulter.
In view of the settled law that once the Act is not applicable and the notice issued under Section 106 of the Transfer of Property Act has been duly served on the petitioner, any other ground including the ground of default would not be material. The law on this point is settled. I do not wish to burden my judgment by making reference of the judgments laying down such law. The courts below have recorded concurrent findings.
This petition is devoid of merit and is, accordingly, dismissed.
At this stage, learned counsel for the petitioner prays that some time may be granted to vacate the premises.
Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.1.2019.
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioner shall pay damages @ Rs. 1,500/- per month with effect from August, 2018 by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
There shall be no order as to costs.
Order Date :- 27.7.2018 p.s.