1. The present writ petition is directed against the judgement and order dated 21.5.2003 passed by the Additional District Judge, Court No. 2, Jhansi in SCC Revision No. 108 of 2000 whereby the order dated 28.9.2000 passed by the Judge, Small Causes, Jhansi in SCC Suit No. 53 of 1993 was set aside and the revision was allowed in favour of the respondent.
2. Brief facts of the case are as follows;
3. The SCC Suit No. 53 of 1993 was filed by the plaintiff-landlord for arrears of rent and ejectment against the petitioner No. 2 and his father Laxmi Narayan in the year 1993. During the pendency of the suit Laxmi Narain expired and was substituted by his heirs and legal representatives viz. petitioners No. 1, 3 , 4, 5 and 6 . In the plaint it was pleaded by the plaintiff that the disputed premises was newly constructed in the year 1984 and the first assessment notice was issued by Nagar Palika on 8.1.1985 under Section 143 of Municipalities Act applicable from the assessment year 1984-85. It was further pleaded that the UP Act No. XIII of 1972 (in short "Act") is not applicable to the disputed premises and it was further pleaded that rent agreement dated 15.4.1985 was also executed between the parties under which the suit property was let out on 16.4.1985 at the rate of Rs. 200/- per month to the petitioner no. 2 and his father. Petitioners in their written statement refuted the allegations made in the plaint and asserted that the suit property is not a new construction and the Act is applicable to the suit property. However, execution of the rent agreement dated 15.4.1985 and the relationship of tenant and landlord was not denied.
4. The trial court dismissed the suit by order dated 28.9.2000 holding that the provisions of the Act are applicable. Being aggrieved and dissatisfied with the order dated 28.9.2011, the landlord-respondent filed SCC Revision No. 108 of 2000 which was transferred to the court of Additional District Judge, Jhansi and the revisional court by order dated 21.5.2003 set aside the order dated 28.9.2000 passed by the trial court holding that the provisions of UP Act No. 13 of 1972 are not applicable and the petitioners are liable to be evicted. Hence the present writ petition.
5. It was submitted by the learned counsel for the petitioners that the first assessment was made in the year 1975 and the suit was instituted in the year 1993, and therefore the provisions of UP Act No. 13 of 1972 are very much applicable to the disputed premises. He further submitted that neither there is any pleadings nor there is any finding that the new construction was done after the complete demolition of the existing structure. It is further submitted that the revisional court has committed manifest error of law in reassessing and recording finding that the property in question is a new construction and the provisions of the Act are not applicable in the matter.
6. Per contra, learned counsel for the landlord submitted that the order was passed by the revisional court in accordance with law and no fault can be found in the said order. It is further submitted that the revisional court had held, after perusal of the evidence on record, that the UP Act No. 13 of 1972 is not applicable to the disputed premises. He further submitted that the entire old construction was demolished and a new construction was raised after sanction of map by Nagar Palika and the first assessment notice dated 8.1.1985 was issued for assessment for the year 1984-1985. It was further submitted that the trial court illegally concluded that it was not a new construction and merely a reconstruction, and assessment for the year 1984-85 was not a first assessment. It was further submitted that the Respondent No. 2 and his father Laxmi Narayan had admitted in the agreement dated 15.4.1985 that property in question is a new construction.
7. Heard the learned counsel for the petitioner and perused the record.
8. It is not disputed that the property in dispute was let out by the landlord to the father of petitioner Laxmi Narayan by rent agreement dated 15.4.1985 which has been annexed as Annexure-2 to the writ petition, as such, there is no denial of landlord and tenant relationship between the parties. It is also not disputed that the notice was given by the petitioner before filing the suit for damages and ejectment.
9. The main issue between the parties is as to whether the Act No. 13 of 1972 is applicable to the premises in question.
10. In this connection, it is apt to extract Explanation 1 to Section 2 (2) of the Act which is as under;
"Explanation 1. [For the purpose of this section]"
(a) the construction of a 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 having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :
Provided that three may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;
(b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition;"
11. The aforesaid provision indicates that construction of building shall be deemed to have been completed on the date which, interalia, shall include on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time. The "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished.
12. At this juncture, it is also important to refer to the rent agreement executed between the parties on 15.4.1985 wherein it was specifically, interalia, mentioned as follows;
" eSa fd gfj'pUnz uxfj;k ru; Jh I;kjsyky uxfj;k lkfdu eqgYyk iqjkuh ilj<+] >kalh izFke i{k o y{eh ukjk;.k ru; Jh dk'kh jke o jkds'k dqekj ru; Jh y{eh ukjk;.k lkfduku edku ua0 201 esokrhiqjk >kalh f}rh; i{k tks fd izFke i{k ,d fdrk nqdku ua0 103 eqgYyk iqjkuh iln<+] >kalh dk ekfyd gS rFkk ;g nqdku izFke i{k us ubZ cukbZ gS tks iw.kZ :i ls ubZ cukbZ xbZ gS rFkk ;g nqeaftyk fcfYMax gS bl iwjh fcfYMax dks f}rh; i{k us izFke i{k ls fdjk;s ij ys fy;k gS ftldh fdjk;snkjh 16-4-85 dks 'kq: gksxh vkSj gj vxys ekg dh 15 rkjh[k dks lekIr gksxh ekg fdjk;snkjh 200-00 nks lkS :i;k** ekgokj gS rFkk fdjk;snkjh ekg nj ekg jgsxhA "
13. The execution of aforementioned rent agreement between the parties has not been denied. From the bare perusal of the said rent agreement, it is clearly evident that the entire premises was let out to the father of the petitioners on 15.4.1985 and both the parties had categorically admitted that the property in dispute ( two storeyed building) is totally a new construction and the tenancy commenced from 16.4.1985. Thus, the petitioner no. 2 and the father of the petitioners had categorically admitted that the property in dispute is totally a new construction which was let out to them, as such, it cannot be said that the suit property is not a new construction after wholly demolishing the existing building . Besides the same, the building plan for construction of building was filed in the year 1981 before the prescribed authority and the map was duly sanctioned vide letter dated 17.8.1983 by the prescribed authority. A copy of the said letter has been annexed as Annexure -9 to the writ petition. It is also noteworthy that the notice dated 8.1.1985 was issued by the Nagar Mahapalika under section 143 of the Municipalities Act wherein it was clearly mentioned that the newly constructed one room on the ground floor and a room over it is in the occupation of the landlord.
14. Learned counsel for the respondent has drawn the attention of this Court to sub-clause (a) of the Explanation 1 of the Section 2 (2) of the Act and submitted that since by the notice dated 8.1.1985, Nagar Palika issued by it under Section 143 Municipality Act had recorded the completion of the new building in his record, it will be deemed that a construction of a building was completed on 8.1.1985. Therefore, the rent control act would not be applicable to the premises in dispute.
15. Learned counsel for the respondent further referred to the relevant portion of the judgment and order dated 28.9.2000 passed by the trial court wherein the trial court, inter alia, has observed as follows;
";g lgh gS fd oknh }kjk tks izek.k i= o uD'kk izLrqr fd;k x;k gS mlls ;g Li"V gksrk gS fd fookfnr nqdku dk fuekZ.k fnukad 17-08-83 dks Lohd`r uD'ks ds vk/kkj ij fd;k x;k gS ijUrq oknh }kjk fookfnr nqdku dk tks fuekZ.k fd;k x;k gS og uohu fuekZ.k ugha gS vfirq fookfnr nqdku ftldk vfLrRo o"kZ 1975 esa gh Fkk mldk iqu% fuekZ.k fd;k x;k rFkk mldk iqu% fu/kkZj.k Hkh fd;k x;k gS izFke fu/kkZj.k o iqu% fu/kkZj.k nksuksa vyx&vyx gSA izFke fu/kkZj.k izFke fu/kkZj.k gksrk gS vkSj iqu% fu/kkZj.k izFke fu/kkZj.k ugha gks ldrk gSA blh izdkj uohu fuekZ.k o iqu% fuekZ.k esa vUrj gS izLrqr okn esa fookfnr nqdku dk iqu% fuekZ.k oknh }kjk fd;k x;k gSA vkSj mldk iqu% fu/kkZj.k Hkh uxj ikfydk >kalh }kjk fd;k x;k gS tks o"kZ 1984&85 ls izHkkoh gqvk gS bl nqdku dk izFke fu/kkZj.k rks iwoZ esa gh gks pqdk gS mRrj izns'k vf/kfu;e la0 [email protected] ds iz;kstu ds fy;s Hkou fuekZ.k iw.kZ gksus dk le; /kkjk 2 ¼2½ ds Li"Vhdj.k ¼1½ ds vuqlkj Hkou fuekZ.k dk izFke fu/kkZj.k gksxkA"
16. A bare perusal of the aforementioned observation of the trial court reveals that the court below has although accepted the version of the plaintiff that the construction was made after the sanction of the map by the prescribed authority but had concluded that it was not a new construction but a re-construction and the assessment made in the years 1984-85 was reassessment and not a first assessment. The approach of the trial court in consideration of the matter suffers from manifest error and based on complete misreading of case and misconception of legal position relevant to the matter. Even though the finding was recorded by the trial court that the construction of the disputed premises was raised in the year 1983 after the sanction of the map, however, it fell into error in holding that it was a re-construction and not a new construction. Therefore, the revisional court was fully justified in pointing out the legal error and rectifying the defect.
17. The record further reveals that the Naga Palika Jhansi , after construction of the disputed premises issued an assessment notice dated 8.1.1985 under section 143 of the Municipalities Act proposing the assessment of the premises in dispute for the assessment year 1984-85 and clearly mentioning therein that one newly constructed room on the ground floor and a room over it was found to be in the possession of the plaintiff landlord. The trial court fell into error in holding that the said assessment is a reassessment and that the building was assessed for the first time in the year 1975 without taking into consideration the vital fact that old construction which was assessed in 1975 stood completely demolished and replaced by a new construction. The trial court in giving the aforementioned conclusion has also totally ignored the agreement dated 15.4.1985 executed between the plaintiff and petitioner no. 2 and his father wherein it was admitted that the premises in dispute is totally a new construction, as such the petitioners can not go behind the agreement dated 15.4.1985. When the old building was wholly demolished, there was no question of reconstruction or continuation of old assessment of the building which was no longer existing after its demolition.
18. So far as the extract of assessment year 1975-90 is concerned, it is an assessment of the old shop which was again constructed after the demolition of the entire old building and this fact is clear from the assessment notice dated 8.1.1985 of the disputed premises which clearly shows that a new construction was put up on the spot. The trial court has illegally held that the disputed premises was not a newly constructed building but was reconstructed ignoring the assessment notice dated 8.1.1985. as well as the agreement dated 15.4.1985 in which the petitioner no.2 and his father themselves had admitted that the shop was newly constructed.
19. The notice dated 8.1.1985 issued by the Nagar Palika Jhansi under section 143 of the Municipalities Act clearly shows that one room on the ground floor and a room over it was newly constructed and as such the observation of the trial court that the building was reconstructed in the year 1983 is illegal and based on misconception of the legal position relevant to the matter and has not considered the the provisions of Explanation 1 of the Rule 2 (2) of the Act in proper perspective.
20. Lastly, the learned counsel for the petitioner has submitted that the revisional court has committed manifest error of law and exceeded his jurisdiction in reassessing , reappreciating by entering into factual arena of the case while exercising the power of revision as provided under section 25 of Provincial Small Cause Courts Act.
21. I have given anxious my consideration to the argument advanced by the learned cousnel for the petitioners. I do not find any merit in the submission.
22. In view of what has been discussed, herein above, it is evident that the trial court has recorded an erroneous finding in respect of the question relating to it i.e. date and period of construction of the building in dispute and the question of application of the Act to the building in dispute and to the suit. Such a question is one in the nature of a question of jurisdiction or touching jurisdiction and the said finding in respect of such a question cannot be termed to be pure finding of fact. It is a finding on a question of jurisdictional fact .
.....On the other hand, if by an erroneous decision on a question of fact or taw touching its jurisdiction e.g. on a preliminary fact upon the existence on which its jurisdiction depends, the subordinate Court assumes jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested its decision is not final and is subject to review by the High Court in its revisional jurisdiction under Subsections 'a' and 'b' of Section 115."
These observations of Supreme Court, no doubt, lead to the inference that it is not open to High Court under Section 115 C.P.C. to review the decision of subordinate Court or any question of fact or law not touching jurisdiction but findings in jurisdictional fact are not final instead (it) can be reviewed by High Court in its revisional jurisdiction."
25. I am also fortified in my view by the decision of Apex Court in Jagdish Prasad Vs. Smt. Angoori Devi: ARC 1984 (1) 679 and the relevant portion of the observation made in the said decision runs as under:
"The Additional District Judge rightly took exception to this approach to the matter by the trial court and since the evidence of the plaintiff had not been scrutinised under the erroneous impression of the legal position, the same was looked into to find out whether the claim of the sub-tenancy had been established. This was nat an attempt to re-assess. evidence but to take into consideration the evidence which had not been looked into by the trial court. The revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act is not as wide as the appellate jurisdiction under Section 96 of the Code of Civil Procedure; yet in a case of this type we do not think fault could be found with the revisional court for pointing out the legal error committed by the trial court in its approach to this material aspect. The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority entitled to Point out the legal error and rectify the defect. This is all that had been done by the Additional District Judge."
26. While discussing the power of the Small Cause Courts in Laxmi Kishore and another Vs. Har Prasad Shukla: ARC 1981 545 , in paras 18 and 19 this Court has made following observations:
"18. The court deciding a revision under section 25 of the Provincial Small Cause Courts Act has to satisfy itself that the trial courts' decree or order is according to law. Of course, the Revisional Court should keep in mind the Supreme Court's dictum in Naicker' case (supra) that a wrong decision on fact is also a decision according to law.
19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz. validity of notice, is sufficient for its decision."
27. The above observations clearly indicates that if the trial court on a wrong assumption of law or on the basis of erroneous impression of legal position , may be, regarding admissibility or otherwise of certain piece of evidence ignores from consideration then, in that case, it is open to the revisional court to consider that evidence along with other, that will not be an attempt to re-assess the evidence, but to take into consideration the evidence that has not been looked into by the trial court and that is open in the same way if the trial court records the finding after taking into consideration the evidence which is not admissible but on the basis of erroneous impression or opinion about admissibility of the trial Court treats inadmissible evidence and records a finding which it should not have taken into consideration, the revisional court may and has power to exclude piece of that evidence and then it is open to it to consider the effect of exclusion of inadmissible evidence. In such cases, the revisional court will be justified in deciding the question of fact itself, because the evidence is all one way and no assessment is needed.
28. In the present case the legal position has been misconstrued by the trial court and thereby committed manifest illegality and caused grave miscarriage of justice and the revisional court was justified in correcting and pointing out the legal error and rectifying the same.
29. In view of what has been discussed above, I do not see any illegality or infirmity in the judgement and order passed by the revisional court.
30. No other point has been pressed by the learned counsel for the petitioner.
31. In the result, the writ petition fails and is dismissed. The judgement and order dated 21.5.2003 passed by the Additional District Judge, Court No. 2, Jhansi in SCC Revision No. 108 of 2000 is , hereby, confirmed and SCC suit no. 53 of 1993 filed by the plaintiff respondent stands allowed.
32. After the judgment was dictated, learned counsel for the petitioner urged that at least six month's time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it.
33. As urged by the learned counsel for the petitioners, six month's time is granted to the petitioners to vacate the premises in dispute provided the petitioners give his undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that they will handover the peaceful possession of the said accommodation to the landlord opposite parties without inducting any third person within a period of one year from today. It is further provided that the petitioner shall pay the entire arrears of rent including the rent payable up to the date of delivery of the vacant possession of the disputed premises within one month from today.
34. In the event of default in compliance of any of the aforesaid conditions, the landlord opposite parties will be at liberty to proceed to evict the petitioners, if necessary, by coercive process with the aid of police force.
Order Date :- 25.7.2011 MLK/vinay