Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 5436 of 2019
Petitioner :- Mohd. Zubair Ahmed
Respondent :- Khudaband Hayul Kayum
Counsel for Petitioner :- Arpit Agarwal,Akash Gupta
Hon'ble Surya Prakash Kesarwani,J.
Heard learned counsel for the defendant-tenant/ petitioner.
Undisputedly, the defendant-tenant/ petitioner is a tenant and the plaintiff- respondent is the landlord of the disputed shops. The tenancy is stated to be more than 40 years old. The disputed shops are the Waqf property, therefore, exempted under U.P. Act No.13 of 1972 in view of Section 2(1) (bbb). From the impugned judgments dated 25.01.2014 in SCC Suit No.04 of 2008 (Khudaband Hayul Kayum vs. Mohd. Zubair) and the judgment passed by the Judge Small Cause Court/ Additional Civil Judge (Senior Division), Court No.10, Shahjahanpur and the impugned judgment dated 17.04.2019 in SCC Revision No.02 of 2014 passed by the Additional District Judge (Special Judge), Court No.2, Shahjahanpur, prima facie it appears that the notice under Section 106 of the Transfer of Property Act, 1882 was given demanding arrears of rent. It also prima facie appears that on the first date of hearing the defendant-tenant/ petitioner deposited the entire amount in the court of Judge Small Cause Court in SCC Suit No.04 of 2008. Section 114 of the Transfer of Property Act provides, as under:
"114. Relief against forfeiture for non-payment of rent. -- Where a lease of immovable property has been determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
Thus, it prima facie appears that the impugned judgments suffer from manifest error of law inasmuch as the defendant-tenant/ petitioner has deposited the entire demanded arrears of rent etc. on the first date of hearing. Thus, the petitioner has made out a case for interim relief. Therefore, as an interim measure, it is provided that till the next date of listing, the operation of the impugned judgments shall remain stayed provided the defendant-tenant/ petitioner deposits a sum of Rs.1500/- with the court below on or before 7th day of each succeeding month towards rent of the disputed shops.
Issue notice to the respondent returnable at an early date.
Steps be taken within a week by ordinary process as well as by registered post.
Respondent may file counter affidavit within three weeks. Petitioner shall have a week thereafter to file rejoinder affidavit.
List on 01.11.2019 before the appropriate court.
This case shall not be treated as part heard or tied up with this Bench.
Order Date :- 25.7.2019 NLY