Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 5906 of 2018 Petitioner :- Durga Prasad @ Bablu Respondent :- K.P. Srivastava Through Lrs, And Another Counsel for Petitioner :- Krishna Kumar Dubey Counsel for Respondent :- Kamlesh Kumar Tiwari
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and Sri Kamlesh Kumar Tiwari, learned counsel for the landlord-respondent.
The present writ petition has been filed for setting aside the impugned judgments and decree dated 31.5.2016, passed by the Judge Small Causes Court, Jhansi in SCC Suit No.62 of 2010 and 24.11.2017 passed by the Additional District Judge Court No.6, Jhansi in SCC Revision No.17 of 2016.
Four issues were framed by the trial court. Issue no.1, whether the shop in question is a new construction and U.P. Act No.13 of 1972 is applicable or not, was decided in favour of the landlord by holding that the first assessment is of the year 1987-88 and therefore, the provisions of the U.P. Act No.13 of 1972 are not applicable. In so far as issue no.2 regarding validity of the notice is concerned, service of notice was admitted by the petitioner herein and in his cross-examination he has admitted that after service of notice the landlord is tendering rent, but the rent was not accepted and therefore, the rent was sent by money order. The revision filed against the said judgment was dismissed.
Learned counsel for the petitioner submitted that the impugned orders are illegal. However, he could not denied the findings recorded by the court below that the first assessment was of the year 1987-88 and the notice was duly served on the respondents.
Learned counsel for the respondents pointed out that issue regarding adjoining shop in the Matter Under Article 227 No.7004 of 2017 (Bhagwat Prasad @ Munna vs. K.P. Srivastava and others) was decided by this Court vide judgment dated 6.11.2017 holding that the U.P.Act No.13 of 1972 is not applicable and in the present case also the said judgment applies with full force. Relevant extract of the aforesaid judgment dated 6.11.2017 is quoted as under:
"On Issue no. 1 which was as to whether the shop is a new construction and Act No. 13 of 1972 is not applicable, while recording finding on the aforesaid issue it was found by the trial court that earlier also this issue was before the Court in a different matter wherein this issue regarding correctness of first assessment dated 18.1.1988 for the year 1987-88 was decided in favour of the landlord which was upheld upto this Court and therefore, the same has become final. Apart from that it has also been noticed that in cross-examination the tenant has admitted this fact that the first assessment of the building had taken place in the year 1987-88. On the basis of this admission it was found that the shop is a new construction and therefore, Act 13 of 1972 is not applicable. Regarding Issues no. 2 and 3 regarding validity of notice and the default in payment of rent it was found that the tenant has admitted in his written statement that the notice dated 22.3.2010 was sent by K.P. Srivastava and after service of notice Rajneesh Srivastava had taken rent by hand. Under such circumstances, the service of notice is also in dispute. The default in making payment of rent was also recorded against the tenant. Issue no. 4 as to whether the tenant is entitled to the benefit of Section 20 (4) of the Act 13 of 1972 was also decided against the tenant as once this Act would not apply he is not entitled to the same. The revisional court has also considered all these aspects and the revision was dismissed.
In view of the findings having been affirmed upto this Court that the first assessment is of the year 1987-88 and also in view of the assertion of the tenant himself wherein he has admitted that the first assessment of the building had taken place in the year 1987-88 and also in view of the admission that the notice was duly served on the tenant, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. As such, I do not find any good ground to interfere in the same."
The writ 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.
However, 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 28.2.2019.
(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.1,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 28.2.2019 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 :- 20.8.2018 AKJ