Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 4341 of 2019 Petitioner :- Rajesh Agarwal Respondent :- Suresh Chandra Agarwal And Another Counsel for Petitioner :- Rajesh Kumar Verma Counsel for Respondent :- Pankaj Agarwal
Hon'ble Surya Prakash Kesarwani,J.
Heard learned counsel for the petitioner.
This petition has been filed praying to set aside the order dated 10.04.2019, passed by the 3rd Additional District Judge, Bareilly in SCC Revision No.19 of 2018 (Rajesh Agarwal Vs. Suresh Chandra Agarwal and others) whereby the Amendment Application 22 Ga filed by the tenant-petitioner was rejected.
Undisputedly, the plaintiffs-respondents are the owner and landlord of the House No.208/1, Civil Line, State Bank Colony, Station Road, Bareilly. In a portion of the said house there are four shops. Defendant - petitioner was a tenant of one of these shops. According to the plaintiffs-respondents since the monthly rent of Rs.1300/- was not paid by the defendant- tenant/petitioner since December 2012 and as such a notice dated 09.01.2014 was issued by the plaintiffs-respondents to the petitioner which was served upon him on 13.01.2014. Despite the aforesaid notice the rent was not paid. By the notice the tenancy of the defendant-tenant/petitioner was terminated due to default in payment of rent. Since the defendant-tenant/petitioner neither paid the rent nor vacated the disputed shop, therefore, the plaintiff-landlord filed SCC Suit No.18 of 2014 (Suresh Chandra Agarwal and another Vs.Rajesh Agarwal) which was decreed by the Judge Small Cause Court, Bareilly by judgment dated 28.07.2018. Aggrieved with this judgment the defendant-tenant/petitioner filed SCC Revision No.19 of 2018, which is pending. During pendency of the aforesaid revision, the defendant-tenant/petitioner filed an Amendment Application 22 Ga seeking amendment in the written statement that U.P. Act No.13 of 1972 shall be applicable with respect to the tenancy of the shop in question inasmuch as the first assessment of the house was made in the year 1977. The aforesaid amendment application has been rejected by the impugned order dated 10.04.2019. Aggrieved with the order rejecting the Amendment Application 22 Ga, the petitioner has filed the present petition under Article 227 of the Constitution of India.
In the SCC Suit, issue no.3 was specifically framed as to whether U.P. Act No.13 of 1972 is applicable with respect to the shop in question. Before the Judge Small Cause Court, parties have led their evidences. By evidence, it was brought on record that house in question was purchased by a registered sale deed dated 31.10.1986. On the west of the house there was some vacant land which was also purchased but the society from which the property was purchased, raised the dispute. Consequently, the plaintiffs-respondents filed O.S. No.370 of 1988 (Suresh Chandra Agarwal Vs.Nand Kishore Tandon & others) for permanent injunction. This suit was ultimately decided by compromise and the title of the plaintiffs - respondents was admitted with respect to the vacant land.
The Total area of the property in question was about 211 sq. yard over which building was standing in about 100 sq. yard. The plaintiffs-respondents constructed the house in the year 1991. He constructed four shops without getting the map sanctioned from the Bareilly Development Authority. During construction, the authorities of the Bareilly Development Authority inspected and found that the construction is going on without sanction of map. The plaintiffs-respondents filed an application for sanction of map and also filed a compounding application and the construction was compounded. Documentary evidences in support of all these facts were filed in evidence by the plaintiffs-respondents in the aforesaid SCC Suit No.18 of 2014. On the basis of these evidences, the Judge Small Cause Court came to the conclusion that the disputed shop was constructed in the year 1991 which is after 26.04.1986 and, therefore, the provision of U.P. Act No.13 of 1972 are not applicable. By the amendment application the amendment has been sought in the written statement on the ground that an assessment was made in the year 1977. However, the construction of the house and the shop in question in the year 1991 proved by documentary evidences, is undisputed. The petitioner-tenant was always aware of the newly constructed shop, therefore, the amendment application is not only frivolous but was filed merely to delay the conclusion of the revision.
The court below has recorded sufficient reason to reject the amendment application 22 Ga which does not suffer from any legal infirmity. Therefore, I do not find any good reason to interfere with it. Consequently, the petition is dismissed.
Order Date :- 30.7.2019/vkg