Supplementary affidavit filed today is taken on record.
Heard counsel for the parties.
The instant petition is directed against the judgement and decree dated 29.11.2018 passed by the Additional District Judge, Meerut allowing SCC Revision No.27 of 2017, thereby decreeing the suit for recovery of arrears of rent and for eviction instituted by the plaintiff-respondent against the petitioner.
The brief facts necessary for disposal of the instant petition are as follows:-
The plaintiff-respondent instituted SCC Suit No.57 of 2015 before the Court of Small Causes for recovery of arrears of rent and for eviction of the petitioner (hereinafter referred to as 'the defendant-tenant') alleging that the shop under his tenancy was constructed after 26.4.1985 and therefore, provisions of U.P. Act No.13 of 1972 (for short 'the Act') were not applicable. The tenancy of the defendant-tenant was terminated by notice dated 27.10.2015, duly served upon him on 30.10.2015 but since he failed to vacate the tenanted premises, therefore, the suit was instituted.
The defendant-tenant contested the suit by filing written statement alleging that the building under his tenancy, which is a shop, was an old construction and that provisions of the Act were fully applicable. He claimed that he had been depositing rent in proceedings under Section 30 (1) of the Act and he also sought benefit of Section 20 (4) of the Act, having deposited the arrears of rent on the first date of hearing.
The trial court by judgement dated 26.4.2017 dismissed the suit. It held that the plaintiff-respondent failed to prove that the building was an old construction, inasmuch as Paper no.34 Ga, the extract from the assessment register brought on record does not mention the property number in respect of which the suit was instituted. Accordingly, the provisions of the Act were held applicable and by extending the benefit of Section 20 (4) of the Act, the trial court relieved the defendant-tenant from the liability of eviction.
Aggrieved by the judgement of the trial court, the plaintiff-respondent filed revision under Section 25 of the Provincial Small Cause Courts Act, 1887. The revision has been allowed by the impugned judgement and decree. The revisional court has held that the provisions of the Act were not applicable to the shop in the tenancy of the defendant-tenant, placing reliance on an extract from the assessment register Paper no.18 Ga and a notice issued by Up Nagar Adhikari, Nagar Mahapalika, Meerut dated 1.4.1987, Paper No.11 Ga.
Learned counsel for the petitioner vehemently submitted that Paper No.18 Ga, which is an extract from the assessment register, was filed by the plaintiff-respondent in revision for the first time alongwith an application dated 13.2.2018. The revisional court allowed the application on payment of a cost of Rs.200/-. However, while admitting the additional evidence, the defendant-tenant was not given opportunity to file evidence in rebuttal and thus, according to him, the revisional court erred in relying upon Paper No.18 Ga.
On the other hand, learned counsel for the plaintiff-respondent Sri Vinayak Mithal submitted that the application dated 13.2.2018 was filed by the plaintiff-respondent alongwith documentary evidence to rebut the evidence brought on record by the defendant-tenant before the revisional court by way of additional evidence. He points out that the defendant-tenant filed an application on 17.1.2018 for admitting additional evidence, which was allowed by the revisional court by order dated 17.1.2018 and the plaintiff-respondent was granted time to file evidence in rebuttal. He submitted that the assessment order filed alongwith application dated 13.2.2018 was in fact evidence led by the plaintiff-respondent in rebuttal.
Sri Ajay Kumar Sharma, learned counsel for the petitioner submitted that the additional evidence led by the defendant-tenant was an order passed in proceedings under Section 30 of the Act. A party, while being given opportunity to lead evidence in rebuttal, has to confine itself to the evidence admitted by way of additional evidence but under the garb thereof, the party cannot be permitted to fill lacunae in his case by leading evidence which is wholly unrelated with the evidence admitted as additional evidence.
The case of the plaintiff-respondent was that her husband purchased a piece of vacant land along with his sisters by registered sale deed dated 5.9.1961. They made temporary constructions over a small part of it, which came to be recorded as Building No.310, thereafter 43, and the present number 53, Jagannathpuri, Shivaji Road, Meerut. Subsequently, he got a map sanctioned from Meerut Development Authority, Meerut on 12.7.1986 and constructed eight shops over the remaining portion of vacant land, before 1.4.1987. On 1.4.1987, a notice was received from Up-Nagar Adhikari, Nagar Mahapalika proposing to impose municipal taxes on the newly constructed eight shops. After considering the objections filed against the said notice, the shops came to be assessed w.e.f. 1.10.1986. After the death of original owner, the disputed shops came to the share of the plaintiff in pursuance of a family settlement. The disputed shop was let out to the defendant since 1.10.1986. As the shop was constructed after 26.4.1985, consequently, the provisions of the Act were not applicable.
In support of her case, the plaintiff-respondent brought on record extract from Municipal assessment Paper No.34 Ga. The same was discarded by the trial court on the ground that there was some discrepancy in the same with regard to mentioning of the new and old number of the premises. During pendency of the revision filed by the plaintiff-respondent, the defendant-tenant led additional evidence and the plaintiff-respondent was granted time to file evidence in rebuttal. In rebuttal, the plaintiff-respondent brought on record an extract from Municipal assessment register bearing Paper No.18 Ga, according to which, indisputably, the shop in the tenancy of the defendant-tenant came to be assessed for the first time since 1.10.1986. The revisional court, also took into consideration a notice bearing Paper No.11 Ga, which was part of the record of the trial court. It was issued by Up Nagar Adhikari, Nagar Mahapalika, Meerut under Section 213 of the Nagar Mahapalika Adhiniyam. A copy of the said notice has been placed for perusal before this Court by learned counsel for the parties. It transpires therefrom that thereby, the Nagar Mahapalika, Meerut, taking notice of construction of eight new shops, proposed increase in annual value of the building.
Under Section 2(2) of the Act, the construction of a building is 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 (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time. The proviso to Clause (a) of Explanation I of sub-section (2) of Section 2 provides that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants. The date of construction of the building has to be determined as per the deeming provision contained in Clause (a) of Explanation I of sub-section (2) of Section 2. Indisputably, Paper No.11 Ga, the notice issued by Up Nagar Adhikari, Nagar Mahapalika, Meerut taking notice of constructions of eight new shops and proposing increase in annual value of the building was the first report/record available with the local authority regarding construction of new shops. The said notice when considered in the light of Explanation 1, would lead to the conclusion that the shop in dispute would be deemed to be constructed after 26.4.1985. Consequently, in view of the III proviso to Section 2(2), the building would remain exempt from the provisions of the Act for a period of forty years. Accordingly, on the date of institution of the suit, the provisions of the Act were rightly held to be inapplicable to the shop in dispute.
Having regard to the above, even if the assessment order brought on record before the revisional court is ignored from consideration, the notice issued by Nagar Mahapalika dated 1.4.1987 is sufficient to uphold the finding relating to date of construction of the building and exemption of the shop from the applicability of the Act.
No other submission has been made by learned counsel for the petitioner.
The petition lacks merit and is dismissed.
In the end, learned counsel for the petitioner prayed for nine months' time to vacate the tenanted premises. He further states that the petitioner is ready to pay rent/damages at the rate of Rs.1500/- per month for the said period, to which Sri Vinayak Mithal, learned counsel for plaintiff-respondent has no objection.
Accordingly, it is provided that the petitioner shall be permitted to remain in possession of the disputed premises for a period of nine months from today subject to his furnishing an undertaking before the trial court within three weeks from today that he shall handover peaceful possession of the premises to the plaintiff-respondent on or before the expiry of nine months and shall also pay rent/damages in advance for entire period of nine months at the rate of Rs.1500/- per month within four weeks from today, failing which, the protection granted hereby would stand vacated and it shall become open to the plaintiff-respondent to execute the decree.
(Manoj Kumar Gupta, J) Order Date :- 24.1.2019 SL