Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 3 of 2019 Petitioner :- Manjoor Ali Respondent :- Jameer And Another Counsel for Petitioner :- Ram Kishore Pandey,Himanshu Pandey Counsel for Respondent :- Yogendra Singh Bohra
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 2.5.2018 passed by District Judge, Bulandshahr allowing Revision No.3 of 2016 and dismissing Revision No.31 of 2015.
The brief facts necessary for disposal of the instant writ petition are as follows:-
The plaintiff-respondents instituted SCC Suit No.33 of 2012 against the defendant-petitioner for recovery of arrears of rent and for eviction. In nutshell, the plaint case was that Shop No.5, Faisal Market, Nagar Chhatari, Tehsil Shikarpur, Bulandshahar owned by the plaintiff- respondents was let out to the petitioner in the year 1991 by Smt. Naseer Bano, the erstwhile owner and landlord on a monthly rent of Rs.250/-. It was further alleged that a rent agreement was executed at the time of inception of tenancy, under which rent was to be enhanced after every eleven months by ten percent and accordingly the rent at the time of institution of the suit was Rs.1682/- per month. The plaintiffs claimed ownership of the building in which the shop in the tenancy of the petitioner is situated, on the basis of sale deed dated 29.6.2012. The specific case of the plaintiff-respondents was that the building in which the disputed shop is situated, comprises of nine shops. It was constructed after getting a building map sanctioned in the year 1990-91 from the Town Area. The provisions of U.P. Act No.13 of 1972 (for short 'the Act') are not applicable. The tenancy of the petitioner was terminated by a notice under Section 106 of Transfer of Property Act followed by institution of the suit.
The petitioner contested the suit claiming that the shop is an old construction and provisions of the Act are fully applicable. He also took a plea that he had been depositing rent under Section 30 of the Act in Misc. Case No.40 of 2012. He denied that there was any agreement between the parties for enhancement of rent on regular basis. He admitted receipt of notice but denied that thereby the tenancy stood determined.
The trial court, by judgement dated 3.12.2015 decreed the suit for eviction but did not grant the relief for recovery of arrears of rent. The trial court framed various points for determination. While deciding point no.1, it held that the notice was valid and duly served and resulted in termination of the tenancy. It also held while deciding point no.2 that the shop in the tenancy of the petitioner was constructed some time in the year 1990-91, therefore, it was exempt from the provisions of the Act. On point no.4, regarding rate of rent, the trial court accepted the contention of the petitioner and held that the plaintiff-respondents failed to prove that rent was being enhanced by ten percent after every eleven months. Since the Act was not found to be applicable, therefore, the benefit of Section 20(4) was denied.
Aggrieved by the judgement and decree passed by the trial court dated 3.12.2015, two revisions were filed, one by the petitioner-tenant being SCC Revision No.31 of 2015 and the other by the respondent-
landlord being SCC Revision No.3 of 2016. The petitioner-tenant felt aggrieved by the decree of eviction, whereas the respondent-landlords challenged the other part of the decree of the trial court by which it declined to grant relief relating to recovery of arrears of rent. The revisional court, by impugned judgement and order dated 2.5.2018, as noted above, has allowed the revision filed by the respondent-landlords and has remanded the case to the trial court for reconsideration of the claim of the plaintiff-respondents with regard to recovery of arrears of rent whereas the revision filed by the petitioner-tenant challenging the decree of eviction, has been dismissed.
Learned counsel for the petitioner submitted that the findings recorded by the courts below with regard to date of construction of the tenanted shop, is wholly illegal. It is urged that there was sufficient evidence on record to demonstrate that the shop was in existence even in the year 1983. He further submitted that once the trial court had accepted the case of the petitioner that the plaintiffs failed to prove enhancement of rent at regular intervals, there was no valid reason to remand the case for reconsideration of the claim of the respondent-landlords for arrears of rent. It is urged that the revisional court erred in interfering with the finding of fact recorded by the trial court in respect of rate of rent.
Sri Yogendra Singh Bohra, learned counsel appearing on behalf of the plaintiff-respondents submitted that the respondent-landlords instituted separate suit against tenants of all nine shops for eviction on the ground that the market in which these shops are situated was constructed in the year 1990-91 after getting the map sanctioned in the year 1989. It was first assessed to house tax in the year 1990-91. The suit filed against the tenant Bhola Shankar Sharma was decreed by the trial court holding that the shop under his tenancy was constructed in the year 1990-91 and was assessed for the first time in the same year. The claim of the tenant in that case that the shop in his tenancy was constructed in the year 1983, was repelled. He points out that against the judgement of the trial court, a revision was filed by the tenant, which was dismissed. The tenant of that case approached this Court by way of a petition under Article 227 bearing No.6109 of 2018, which was also dismissed by this Court by a detailed order dated 27.8.2018 upholding the findings recorded by the courts below that the shop in his tenancy was subjected to assessment for the first time in the year 1990-91. It is urged that the shop in dispute in the instant writ petition is one amongst the nine shops in the same market and was constructed at the same time. He further submitted that the findings relating to date of construction of the building is based on documentary evidence including the certificate issued by Adhyaksha, Nagar Panchayat, Chhatari certifying that the shops were subjected to house tax assessment for the first time in the year 1990-91. It is urged that the documents of the year 1983 upon which reliance was placed by the petitioner in the instant case, were also duly considered by this Court while deciding the petition filed by Bhola Shankar Sharma. However, he is not in a position to defend the other part of the order by which the revisional court has remanded the matter to the trial court for re-consideration of the claim of the respondent-landlord in relation to recovery of arrears of rent. Therefore, he also does not object in case the said part of the decree is set aside.
I have considered the judgement of this Court dated 27.8.2018 in the petition filed by Bhola Shankar Sharma, who was admittedly occupying a shop in the same market. A perusal of the said judgement show that his eviction was also directed after returning identical findings. Even the defence taken by him was exactly similar to that taken by the petitioner in the instant case. This Court, after considering the entire evidence on record endorsed the findings returned by the courts below that the market in which the shop in dispute lies, was constructed after getting building map sanctioned in the year 1989. It was first assessed to house tax in the year 1990-91, as certified by the Chairman, Nagar Panchayat (Paper No.31-C). Sri R. K. Pandey, learned counsel for the petitioner is not in a position to point out anything before this Court which may warrant taking a different view. This Court, accordingly upholds the concurrent findings recorded by the courts below regarding date of construction of the shop in dispute and regarding non applicability of the provisions of U.P. Act No.13 of 1972.
As regards the other part of the judgement of the revisional court, by which the matter has been remanded to the trial court, it is vehemently urged by learned counsel for the petitioner that the findings recorded by the trial court that the plaintiffs failed to prove that there was any increase in rent as per alleged agreement, was not set aside by the revisional court and therefore, it erred in remanding the matter.
The trial court, after considering the statement of PW-1 and DW-1 held that the plaintiffs failed to prove that rent was ever enhanced from Rs.250/- per month to Rs.1682/- per month. The revisional court, without setting aside the said finding of the trial court, remanded the matter back to the trial court. The revisional court has only relied upon the alleged agreement, which, as noted above, was never implemented.
Counsel for the plaintiff-respondents is unable to defend the said part of the judgement of the revisional court and he very fairly concedes that remand of matter for such purpose would be an exercise in futility. He submitted that the interest of landlords would stand protected in case they are permitted to withdraw the entire amount deposited by the petitioner in proceeding under section 30 of the Act and also in case the petitioner is directed to pay rent for the remaining period at the rate found by the trial court. Learned counsel for the petitioner fairly agreed to the same. He submitted that the petitioner be granted nine months time to vacate the premises. He also agreed to pay damages for the said period @ Rs.2000/- per month, to which learned counsel for respondent-landlord has fairly agreed to.
Accordingly, the petition is allowed in part. The order of the revisional court remanding the matter to the trial court, is hereby set aside whereas the other part of the order, by which decree of eviction passed by the trial court has been upheld, is approved.
In consequence, the petitioner would be liable to eviction and respondent-landlord shall be entitled to withdraw rent deposited by the petitioner in proceedings under Section 30 of the Act. The petitioner shall pay arrears of rent for the period which is not in deposit under Section 30 at the rate of Rs.250/- per month within four weeks from today. It is further provided that in case petitioner furnishes an undertaking before the trial court that he will handover vacant peaceful possession of the shop to the respondent-landlord on or before expiry of nine month from today within a period of three weeks, the petitioner shall not be evicted for the aforesaid period. During this period, the petitioner shall pay rent/damages at the rate of Rs.2000/- per month, to be deposited in advance, within four weeks from today. In case of failure of any of the conditions stipulated above, the protection granted would stand vacated automatically and it would be open to the respondent-landlord to execute the decree of eviction and recover arrears of rent as agreed to above by the parties in accordance with law.
(Manoj Kumar Gupta, J.) Order Date :- 29.1.2019 skv