JUDGMENT Sunil Ambwani, J.
1. This is tenant's revision under Section 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 31.10.2003 passed by Addl. District Judge, Court No. 3. Pilibhit. a Small Cause Court, in S.C.C. Suit No. 22 of 1997. between Ankur Agarwal and Rajiv Nath Agarwal. for eviction and arrears of rent.
2. I have heard Sri B.N. Agarwal for revisionist-tenant and Sri M.K. Gupta for opposite party-landlord.
3. The suit was filed with the plaint averments stating that Sri Arun Kumar Agarwal, the father of plaintiff Sri Ankur Agrawal had let out a shop situated in Mohalla Habibulla Khan Janubi, Bisalpur, district Pilibhit to the defendant Rajiv Nath Agarwal on monthly rent of Rs. 625. The shop is a new construction and assessed for the first time in January, 1995 and thus the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act 13 of 1972') are not applicable to the shop in dispute. The rent as well as the house-tax and water-tax, was not paid since July, 1995. A notice under Section 106 of the Transfer of Property Act demanding the arrears of rent, house-tax and water-tax as well as terminating the tenancy was given to vacate the shop after thirty days. The plaintiff claimed the eviction, arrears of rent, damages for use and occupation, house-tax and water-tax.
4. The defendant-revisionist denied the plaint's allegations. It was stated in the written statement that the shop in dispute was taken on rent in 1975 and since thereafter the rent was paid regularly. The shop in dispute fell in the share of uncle of the plaintiff. The Plaintiff was minor and that his mother Uma Agarwal purchased the property from his uncle as his guardian in the year 1989. The tenant started paying the rent to Uma Agarwal. In 1991, the rate of rent was Rs. 500 per month and thereafter in 1996, it was increased to Rs. 625 per month. The defendant is related to the plaintiff, and placing trust on the relationship, his mother took Rs. 15,000 as advance rent vide receipt dated 23.4.1996 mentioning thereon that it was in lieu of the rent from 1.4.1996 to 31.3.1998. The defendant-tenat stated that the shop was constructed prior to the year 1975 and is not a new construction and that in case any map was sanctioned by the Nagar Palika, the same cannot give any benefit to the plaintiff in establishing that shop in dispute is a new construction.
5. After considering the documentary and oral evidence, the trial court held that the shop in dispute was assessed for house-tax and water-tax in 1994-95. It was constructed in part and that oral partition took-place in the year 1988 and that the portion in which the shop was constructed, was purchased in 1989. The trial court found that the defendant-tenant could not establish that the shop in dispute was constructed prior to 1995 and thus the provisions of U.P. Act No. 13 of 1972 are not applicable.
6. The trial court further held that the notice cannot be treated to be Invalid on the ground that the plaintiff was minor at the time of giving the notice. The giving a notice is not a contract and that a minor can instruct the counsel to give the notice through him. The trial court did not accept the defence that the notice was not served inasmuch as the service was proved through the post office Bisalpur vide certificate issued by the post office. The fact that the notice was not addressed to his residential address but was addressed to the business place, does not affect the service of notice. On issue No. 3 regarding the payment of rent, the trial court disbelieved the payment of Rs. 15,000 as advance rent. The demand of water-tax and house-tax was not accepted as there was no contract and to that effect, the actual payment of tax was not established. It was found that the tenant had defaulted in making the payment of rent and was liable to pay the rent from 1.8.1995 to 23.9.1997 amounting to Rs. 16,671 and damages for use and occupation thereafter.
7. Assailing the judgment, Sri B.N. Agarwal, learned counsel appearing for the petitioner submits that the provisions of U.P. Act No. XIII of 1972 are applicable to the shop in dispute ; that the notice was not legal and was not served upon the defendant-revisionist and that the water and house tax was due from 1.8.1995. Sri Agarwal submits that the construction of two walls, i.e., northern and western walls, does not amount to the fact that the shop in dispute was newly constructed, and that the certificate of the Executive Officer, Nagar Palika, Bisalpur that the shop in dispute was assessed for the first time in the year 1994-95 is not admissible in view of Section 74 of the Indian Evidence Act. The certificate was not a public document. He has relied upon Shiv Das and Ors. v. Sheo Dayal Singh, AIR 1930 All 712 and Ram Saroop Rai v. Smt. Lilawati, 1980 ARC 466.
8. In Ram Saroop Rai (supra), it was held that the provision of U.P. Act 13 of 1972 places reliance upon the municipal record rather than the oral evidence. The statutory guidelines contained in Explanation 1 to Sub-section (2) of Section 2 of the Act provide that the building should be deemed to be completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied. In para 11 of the judgment, it was observed by the Supreme Court that it was open to the landlady-respondent to make out her case by producing better municipal evidence.
9. The language of Explanation 1 to Sub-section (2) of Section 2, "where the building is subject to the assessment, the date on which the first assessment thereof comes into effect", is relevant. This fact can be proved either by extract of certified copy of the municipal assessment or by any other municipal evidence. In the present case, the Executive Officer of the Municipal Board certified that the building was first assessed in the year 1994-95. The evidence, in my opinion, was sufficient to discharge the burden as provided in Explanation 1 to Sub-section (2) of Section 2 of the Act. The defendant-revisionist has not disputed the genuineness of this document and thus the document concludes the issue in favour of plaintiff-landlord.
10. It is settled in law that a minor has no legal competency to enter into a contract or authorise another to do so on his behalf. A guardian has to step into and supplement the minor's defective capacity, such a guardian can function within the doctrine of legal necessity or benefit and the validity of the transaction is judged with reference to the scope of his power to enter into a contract on behalf of the minor. This principle is long established and has been reiterated in Vadakattu Suryaprakasam v. Ake Gangaraju and Ors., AIR 1956 AP 33.
11. In the present case, the registered notice was sent on 20.8.1997 through Sri Ashok advocate. The opening part of the notice states that it was on behalf of Sri Ankur Agarwal, minor, son of Sri Arun Kumar Agarwal, Resident of Mohalla Dori Lal, Pilibhit. The plaintiff entered into witness-box on 26.7.2002 when he was 19 years old. His father Arun Kumar Agarwal entered into witness-box as P.W. 3 on 8.8.2002 to prove the notice. It was stated in his examination-in-chief that he had got the notice issued; raising the demand of rent and terminating the tenancy. He had instructed the Advocate to prepare the notice and it was read out, and the draft of notice was corrected in his presence and after seeing the notice paper G-16, he accepted that it was the carbon copy of the notice which was got served on defendant. It was signed by Sri B.S. Ashok, advocate and sent by registered post. He was not cross-examined on this issue. Counsel for the revisionist has not raised any ground that Arun Kumar Agarwal, father of Ankur Agarwal, was not his guardian and that he was acting against the interest of the minor. As the natural father, Sri Arun Kumar, as guardian of the plaintiff, had instructed the advocate to give the notice to terminate the tenancy. There was no suggestion or defence taken by the tenant that the father did not act in the interest of minor or there was no legal necessity to give the notice where the rent was not paid for a long period of time.
12. The argument that the notice was not sent at the residential address and was served on the business address is wholly misconceived. The law requires service of notice on the tenant which was established by the certificate of the post office. It is hardly material where the notice is served. The argument that the notice must be served only at a place to which it is addressed has no legal basis. The law requires service and the service at a place to which it is addressed.
13. The last submission is with regard to the payment of lump sum amount of Rs. 15,000 as advance to be adjusted towards the rent from 1.4.1996 to 31.3.1998. This argument is not substantiated on record. The trial court found that the receipt issued by Uma Agarwal, mother of landlord, was not proved. The witness stated that she had not signed the receipt in his presence. The tenant failed to discharge the burden of proving the receipt. The finding, as such, does not call for any interference. The tenant also failed to prove the circumstances in which such a big amount was paid to the mother of plaintiff-landlord.
14. No other ground was advanced by the counsel for the revisionist.
15. In the result, the revision fails and is dismissed.
16. In the end, Shri B.N. Agarwal requested for some time to vacate the shop. Having regard to the facts and circumstances, the petitioner-tenant is allowed three months time to vacate the shop, subject to filing an affidavit in trial court within one month, and payment of entire decretal amount as well as rent for the three months allowed to vacate, in the trial court, failing which the decree shall become executable.