Court No. - 30
Case :- S.C.C. REVISION No. - 113 of 2018 Revisionist :- Nisar Ahmad Opposite Party :- Dr. Sazid Hussain Khan And 3 Ors Counsel for Revisionist :- Rishikesh Tripathi,Arun Kumar Gupta Counsel for Opposite Party :- Kshitij Shailendra
Hon'ble Vivek Kumar Birla,J.
Sri Manish Kumar Nigam has filed his Vakalatnama on behalf of the defendant - respondents, which is taken on record.
Heard Sri Rishikesh Tripathi alongwith Sri Arun Kumar Gupta, learned counsel appearing for the defendant - revisionist and Sri Manish Kumar Nigam, learned counsel appearing for the defendant - respondents.
Present revision has been filed seeking setting aside the judgment and decree dated 11.7.2018 passed by the Judge, Small Cause/Additional District Judge, Court No. 1, Shahjahanpur in SCC Case No. 01 of 2013, Dr. Sazid Hussain Khan and others Vs. Nisar Ahmad.
SCC suit was filed by the plaintiff - respondents which was allowed by the lower court, against which this revision has been filed.
The suit was filed on the ground that the defendant revisionist herein is tenant of double shop described in the plaint at the rate of Rs. 800/- per month. He has defaulted in payment of rent. The shop was constructed in the year 1996 and it was assessed for the first time in the year 2002. It was asserted that the Act is not applicable and the notice terminating the tenancy was validly served.
The suit was contested by the defendant revisionist herein asserting that the provisions of U.P. Act No. 13 of 1972 are applicable and there is no default in making payment of rent and he is entitled for the benefit of deposit made under Section 20 (4) of the Act. It was further asserted that no notice was served on the defendant.
Six issues were framed by the trial court.
On Issue no. 1 it was found that the construction is a new construction which was assessed for the first time in the year 2002 and as such the Act is not applicable.
On Issues no. 2 and 3 it was found that since the provisions of U.P. Act No. 13 of 1972 are not applicable, therefore, benefit of Section 20 (4) of the Act cannot be granted.
On Issue no.4 it was found that the registered notice sent by the plaintiff through counsel was received by Fahim Ahmad son of the defendant revisionist herein and as such there was valid service of notice.
On Issue no. 5 the plaintiff was found to be entitled for possession of the shop.
The sole argument made by the learned counsel for the revisionist before this Court is that there is no valid service of notice. It was also asserted that allegedly the registered notice was sent on 24.8.2012 and in the plaint it was stated that the same was served on the same date i.e. 24.8.2012, which is not possible. He further submitted that in his statement the plaintiff has not stated knowledge of service of notice on or about 25.8.2012 through his counsel and as such he had no knowledge of the same and therefore, service of notice on 24.8.2012 is not proved particularly when service of notice was specifically denied by the respondent and as such the finding recorded on Issue no. 4 is absolutely illegal and against the evidence on record.
No other argument is pressed.
Per-contra, learned counsel appearing for the plaintiff respondents has supported the impugned order and submitted that the notice was sent through counsel and carbon copy of the notice and registered postal receipt as well as AD sent to the defendant was duly placed on record. It has come on record that Fahim Ahmad has received the notice and his signatures are existing on Acknowledgement Due. Fahim Ahmad has appeared as DW 2 and in his statement he has not disputed the fact that the notice was not received by him. It was admitted that he is living with his father and is also doing business with him. It was also recorded that there was no assertion that the Acknowledgement Due does not bear the signature of Fahim Ahmad or they are forged.
I have considered the rival submissions and have perused the record.
Order 5 Rule 15 CPC clearly provides that where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be affected on him at his residence, the service may be made on any adult member of the family, whether male or female, who is residing with him. It is not in dispute that Fahim Ahmad son of the defendant revisionist herein is admittedly residing with the defendant revisionist herein and is also doing business with him. The notice was sent by registered post through counsel which was returned back with acknowledgement due bearing signatures of Fahim Ahmad. The notice was sent by registered post through counsel who has received back the acknowledgment due. Admittedly, the notice was sent through registered post and was sent within the city locally and it was not impossible that the same is served on the same date, moreso, when signatures on receiving by son of the defendant-tenant were not disputed. Except bald denial nothing further was done by the tenant to contradict such service of notice by registered post.
Under such circumstances, I do not find any legal infirmity in the order impugned herein.
This revision is devoid of merit and is, accordingly, dismissed.
At this stage, learned counsel for the revisionist prays that some time may be granted to vacate the shop.
Having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that:
(1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.3.2019.
(2) The tenant-revisionist 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-revisionist 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-revisionist shall pay damages @ Rs. 3,000/- 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 shop, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-revisionist shall also state that he will not create any interest in favour of the third party in the shop in dispute;
(6) Subject to filing of the said undertaking, the tenant-revisionist shall not be evicted from the shop 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 shop is not vacated as per the undertaking given by the revisionist, he shall also be liable for contempt.
There shall be no order as to costs.
Order Date :- 25.9.2018 p.s.