Court No. - 30
Case :- WRIT - A No. - 33 of 2015 Petitioner :- Smt. Nirmala Devi Respondent :- Sri Jagadguru Vishwaradhya Singhasan Jangamwari Math Counsel for Petitioner :- A.K. Upadhyay,Rahul Srivastava Counsel for Respondent :- Ajay Kumar Singh,Ashish Kumar Singh,T.N. Tiwari,Triloki Nath
Hon'ble Vivek Kumar Birla,J.
Perused the office report dated 26.7.2018. Learned counsel for the petitioner is permitted to carry out necessary amendment during course of day.
Heard A.K. Upadhyay, learned counsel along with Sri Anant Vijai and Sri Kamlesh Singh, learned counsel for the tenant- petitioner and Sri Ashish Kumar Singh, learned counsel along with Sri Ajay Kumar Singh and Sri T.N. Tiwari, learned counsel for the landlord-respondent and Sri and perused the record.
Present petition has been filed challenging the judgement and order dated 1.11.2014 passed by the Additional District Judge, Court No. 3, Varanasi in Small Causes Revision No. 13/2013 (Smt. Nirmala Devi vs. Sri Jagadguru Vishwaradhya Singhasan Jangamwari Math, Varanasi) filed by the petitioner and the judgement and decree dated 26.2.2013 passed by Small Causes Court, Varanasi in Small Causes Suit No. 57/09 (Sri Jagadguru Vishwaradhya Singhasan Jangamwari Math, Varanasi vs. Smt. Nirmla Devi).
By the impugned judgement and order dated 26.2.2013, the trial Court allowed the suit filed by the landlord-plaintif (respondent herein) and the revision against the same filed by the tenant-defendant (petitioner herein) was dismissed. The suit was allowed on the ground that the plaintif is a charitable religious institution and as per Section 2(1)(bb) of the UP Act 13 of 1972 (hereinafter referred to as the 'Act') is exempted from the applicability of the Act. A registered notice was sent to the defendant-petitioner, which was refused by him and in the light of the judgement of Hon'ble Apex Court, service of notice on the defendant was deemed to be sufficient and the suit was allowed. Revision filed against the same by the defendant-petitioner was dismissed.
Submission of the learned counsel for the petitioner is that notice sent by the plaintif-respondent is illegal as it was categorically denied that the same was not served on the defendant-petitioner and therefore, the plaintif-respondent was under obligation to prove the same by producing the postman and no such presumption regarding service of notice could have been raised by the Courts below. He next argued that the plaintif-respondent is a private trust and is not a public trust and therefore, is not exempted from the applicability of the Act and is not covered by Section 2 (1) (bb) of the Act. He further submits that although in paragraph 1 of the written statement it was admitted that the plaintif is Math, however, rest of the contents of paragraph 1 of the plaint were denied and therefore, the impugned judgement and orders are liable to be set aside.
Per contra, Sri Ashish Kumar Singh, learned counsel for the respondent submits that in paragraph 1 of the plaint, it was specifically stated that the plaintif is a Math and charitable religious institution and tax benefits are also extended to the institution under Section 80G of the Income Tax Act. In paragraph 2 of the plaint, it was specifically stated that the property of the Math is exempted from the operation of the Act as per Section 2(1)(bb) of the Act. He further pointed out that in written statement the contents of paragraph 2 of the plaint have not been denied and as such, the position is admitted that the plaintif is charitable religious institution and therefore, is exempted from the operation of the Act. He lastly submits that the law is settled on the issue that service of notice by refusal is sufficient and there is no requirement to prove the same by producing the postman. In support of his submissions, he has drawn attention to judgement of this Court dated 28.4.2014 in Writ-A No. 24065 of 2014 (Smt. Nirmala Devi vs. Shri Jagadguru Vishwaradhya Singhasan Jangamwari Varanasi) wherein rejection of the application for taking additional evidence on record to prove that the plaintif is not a charitable religious institution was upheld by this Court. He has further drawn attention to the judgement of this Court dated 21.8.2014 passed in Writ-A No. 43342 of 2014 (Smt. Nirmala Devi vs. Sri Jagadguru Vishwaradhya Singhasan) to contend that in memo of revision the amendment was being sought by the defendant, which was rejected by the lower revisional Court and the same was upheld on the same ground I have considered the submissions and perused the record.
On perusal of the record, the position as pointed out by the learned counsel for the petitioner is very much apparent and clear from the record. To avoid further argument on this issue as to whether the plaintif is a charitable religious institution or not, it would be appropriate to quote both the judgement and orders passed by this Court as noted above.
Order dated 28.4.2014 passed in Writ-A No. 24065 of 2014 "1. Heard learned counsels for parties and perused the record.
2. The fact that respondent-Endowment is a Charitable Religious Institution, as defined under Section 2 (1) (bb) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ?Act, 1972?), and, therefore, property owned by it is exempted from Act, 1972, pleaded in para 2 of plaint was admitted in written statement. In these circumstances, in my view, no evidence on the question whether Act, 1972 is applicable or not was required to be adduced by petitioner- tenant and the Court in passing the impugned order rejecting additional evidence at Revisional Stage has not committed any error, so as to warrant interference by this Court in exercise of power under Article 226.
3. The writ petition lacks merit. Dismissed."
Order dated 21.8.2014 passed in Writ-A No. 43342 of 2014 "Heard Sri Ashok Kumar Upadhyay, learned counsel for the petitioner and Sri Ajay Singh along with Sri T.N. Tiwari, learned counsel appearing for the respondent.
The writ petition is directed against the order dated 18.7.2014 passed by the Additional District Judge rejecting the petitioner's application for amendment paper no. 32 Ka in SCC Revision No. 13 of 2013 (Nirmala Devi Vs. Sri Jagadguru Viswaradhya Singh as an Jangamwari Math, Varanasi).
The respondent as owner and landlord of the premises in dispute instituted a suit for eviction of the petitioner who is a tenant therein. The said suit has been decreed by the court of first instance whereupon petitioner has filed the above revision. In the above revision petitioner moved an application 32 Ka for amendment of the memo of revision so as to add grounds no. 4 A and B in the revision.
The aforesaid proposed amendments are to the effect that the respondent is not a charitable religious institution and is not exempt from the applicability of U.P. No. 13 of 1972 and that despite the fact that the petitioner has specifically raised an issue that no notice dated 10.10.2009 was given or was served upon the petitioner,the court of first instance without recording any specific and clear finding regarding it had decreed the suit.
The revisional court below in rejecting the amendment application has held that both the amendments which the petitioner proposes to carry out are immaterial and meaningless in view of the pleadings of the parties.
Regarding the proposed amendment regarding applicability of U.P. Act No. 13 of 1972 and the respondent being a charitable religious institution, the petitioner in reply to paragraph 2 of the plaint in the written statement has admitted it to be a religious charitable institution. The application of the petitioner to adduce evidence contrary to it was rejected and the order was affirmed by this Court vide order dated 28.4.2014 passed in the writ petition no. 24065 of 2004. The said order of the High Court clearly records that the respondent in paragraph 2 of the plaint has pleaded that the premises in dispute is owned by a charitable religious institution as defined under Section 2(1) (bb) of the Act and is therefore exempt from its applicability. The said averment made in the plaint is admitted to the petitioner in the written statement and as such petitioner can not be permitted to adduce evidence beyond the pleadings.
In view of the above, as the aforesaid fact is admitted, the petitioner can not be permitted to plead contrary to it. It is not the case of the petitioner that the said admission was made under misconception.
The court below has clearly dealt with the issuance and the service of notice dated 10.10.2009 by which the tenancy of the petitioner was determined. Therefore, the ground proposed to be added contending that the court below has not dealt with the above aspect does not appear to have any substance.
Both the amendments proposed by the petitioner appear to be an exercise to delay the disposal of the revision.
In view of the aforesaid facts and circumstances, as the amendments were of a redundant nature, the court below committed no error in rejecting the application.
The petitioner irrespective of the grounds taken in the revision is free to argue all legal aspects which may be arising in the matter before revisional court.
The petition is dismissed with the above observation with the expectation that the revisional court will decide the revision in accordance with law as expeditiously as possible by curtailing all unnecessary adjournments and fixing short dates in quick succession."
Perusal of the above noted orders would clearly indicate that this Court has already decided the issue in favour of the plaintif-respondent regarding exemption of the plaintif from the applicability of the UP Act 13 of 1972 and therefore, the first argument of the learned counsel for the petitioner is liable to be rejected and is hereby rejected. So far as the service of notice on the defendant-petitioner sent by registered post is concerned, notice and registry receipts with the endorsement 'refusal' is on record. A Full Bench of this Court in Gangaram vs. Phoolwati, AIR 1970 All 446 (FB) has clearly held that in case notice is sent by registered post and is received back with an endorsement 'refusal', service of notice is deemed to be sufficient. It has been held that although such a presumption is rebuttable, the postman need not be examined to prove the endorsement and it is the duty of the person rebutting the presumption to lead evidence that the notice was not served.
In view of the aforesaid law, I find that the plaintif- respondent has discharged its burden on the issue of service of notice and no evidence to the contrary is given by the defendant to prove his case on this issue. Therefore, in view of the aforesaid law, contention of the learned counsel for the petitioner that the postman was liable to be examined to prove service, is liable to be rejected and is hereby rejected.
It may also be noticed that no such ground was taken regarding applicability of the Act and service of notice in the revision filed by the defendant-petitioner.
All such findings have been appreciated on the basis of documentary and oral evidence on record and therefore, I do not find any legal infirmity in the judgement and orders impugned herein.
In such view of the matter, I do not find any good ground to interfere in the judgment and orders of the courts below in the present petition and the same is accordingly dismissed.
At this stage, learned counsel for the tenant-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 efect 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. 2,000/- per month 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.
Order Date :- 27.7.2018 Abhishek