Shekhar Khandelwal vs Ajay Kumar Jaiswal
2013 Latest Caselaw 1119 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(Judgment reserved on 01.03.2013)
 
(Judgment delivered on 22.04.2013)
 

 

 
Court No. - 4
 

 
Case :- CIVIL REVISION No. - 87 of 2013
 

 
Petitioner :- Shekhar Khandelwal
 
Respondent :- Ajay Kumar Jaiswal
 
Petitioner Counsel :- Satish Mandhyan,Om Prakash - I
 
Respondent Counsel :- Salil Kr. Rai
 

 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the applicant and Sri S.K. Rai, learned counsel for landlord respondent, who has appeared through caveat.

This revision is directed against judgment and decree dated 07.02.2013 passed by J.S.C.C./ A.D.J., Court No.9, Pilibhit in S.C.C. Suit No.4 of 2011, Ajai Kumar Jaiswal Vs. Shekhar Khandelwal. The suit was decreed for eviction of the tenant applicant from the tenanted shop in dispute and for recovery of arrears of rent/ damages of use and occupation. The case of the plaintiff respondent was that defendant tenant applicant was tenant of the shop in dispute on behalf of plaintiff, rate of rent was Rs.2200/- per month, since April, 2010, rent had not been paid and that a stair case had been constructed inside the shop. The tenancy was terminated through notice dated 03.02.2011. It was further pleaded that shop in dispute was constructed in the year 1996 and it was assessed for house tax for the first time in the year 1996-97 by Nagarpalika Parishad, Pooranpur, hence U.P. Act No.13 of 1972 did not apply. Through the plaint, arrears of rent amounting to Rs.27279.99 were claimed.

Tenant applicant filed written statement asserting that he was tenant on behalf of landlord of three different portions including the shop in dispute and the total rate of rent of the three portions was Rs.900/- per month. Construction of stair case or any other damage to the shop was denied. Tenant further pleaded that rent till September, 2010 had been paid to the landlord and since October, 2010, rent was being deposited in a case under Section 30 of U.P. Act No.13 of 1972 where rent had been deposited from October, 2010 to December, 2010. Regarding age of the shop, tenant had pleaded that it was constructed around 1973. In this regard, the court below after thorough examination of evidence on record particularly documentary evidence in the form of certificate issued by Executive Engineer, Nagarpalika, order of passing the map for new construction and documents pertaining to fixing of house tax of different years, it was held that during the period from 1991-95, there were only three shops, one room, bath room, latrine, kitchen etc. in the house in dispute in a dilapidated condition but afterwards 13 new shops were constructed and fresh house tax was assessed upon the newly constructed shops in 1996-97. The map for new construction was passed by the competent officer of the Nagarpalika on 04.10.1995. The court below compared the house tax records of the period 1985-90 with the period of 1995-96 and rightly concluded that 11 new shops had been constructed after 1990. Plaintiff had also paid the penalty regarding some irregularity in construction and the receipt thereof dated 14.11.1997 was filed by him. Tenant also admitted that he had taken the shop in dispute on rent in 1996-97. He admitted that about 20 years before his father was tenant in some other shop of the plaintiff.

Accordingly, there is absolutely no error in the finding of the court below that shop was constructed in the year 1995-96.

As far as notice of termination of tenancy is concerned, the court below held that it was perfectly valid. I fully agree with the said finding. Copy of notice is Annexure-3 to the affidavit filed in support of stay application in this revision. Learned counsel for the applicant has mainly emphasized upon para-6 of the notice, English translation of which is as follows:

"That due to your actions, now my client does not want to keep you as tenant any further and terminates your tenancy of the shop in dispute through this notice."

After clause-7 of the notice, it was stated that tenant could keep shop in dispute in his possession for 30 days from the date of receipt, after 30 days he should deliver possession. The notice is legally valid. In any case after amendment of Section 106 of Transfer of Property Act in 2003, it has been provided under Section 106(3) as follows:

"A notice under sub-Section(1) shall not be deemed to be invalid merely because period mentioned therein falls short of the period specified under that sub-section where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section."

The suit was filed after one month of receipt of notice.

The applicant is also tenant of two shops on the first floor, which were not in dispute in the suit giving rise to the instant revision. The court below held that the tenancy of all the three shops was separate and the shop in dispute was given on rent afterwards to the applicant.

As far as the rate of rent is concerned, the court below held that plaintiff could not prove that the rate of rent of the shop in dispute was Rs.2200/- per month. The plaintiff had also filed suit for eviction in respect of other shops in the form of S.C.C. Suit No.1 of 2011 in which tenant deposited the rent asserting that it was rent of all the three shops, which was withdrawn by the landlord.

The court below also found that after breaking the lintel, the tenant had constructed a stair case to connect the ground floor shop in dispute with the first floor shop which was also in his tenancy occupation. In the map, which was got passed before construction, stair case was not shown.

In the said finding also, there is no legal error. In any case if the Rent Control Act does not apply even in the absence of default and material alteration, tenant is liable to eviction after termination of tenancy.

Accordingly, suit was decreed for eviction. Relief for payment of arrears of rent was denied. However, tenant was directed to pay damages for use and occupation at the rate of Rs.73.33 per day (Rs.2200/- per month) w.e.f. 05.03.2011 when suit was filed till date of eviction. In my opinion, court below was legally not justified in directing payment of damages at a rate higher than agreed rate of rent until the date of the passing of the decree.

Accordingly, revision is allowed in part. Decree of eviction is maintained. Decree for payment of damages pendente lite at the rate of Rs.73.33 per day is set aside and it is directed that during the pendency of the suit tenant applicant shall be liable to pay damages at the rate of Rs.300/- per month.

Tenant applicant is granted one nine months time to vacate on the following conditions.

1. For this period of nine months, which has been granted to the tenant-applicant to vacate, he is required to pay Rs.22,500/-( at the rate of Rs.2500/- per month) as rent/damages for use and occupation. This amount shall be deposited within one month before the J.S.C.C., Pilibhit and shall immediately be paid to the landlord-respondent.

2. Within one months from today tenant-applicant shall file an undertaking before the J.S.C.C., Pilibhit to the effect that within nine months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent.

3. Entire decreetal amount calculated at the rate of Rs.300/- per month due till date is deposited within one month for immediate payment to the landlord-respondent.

If within one month undertaking is not filed or decreetal amount and Rs.22,500/- are not deposited then from today till actual eviction tenant shall be liable to pay Rs.5000/- per month as rent/damages for use and occupation.

Similarly if after filing undertaking and depositing the aforesaid amount of Rs.22,500/- property in dispute is not vacated within nine months then since after nine months till actual vacation tenant applicant shall be liable to pay rent/damages @ Rs.5000/- per month.

It is needless to add that this direction of payment of Rs.5000/- per month is in addition to the right of the landlord to get the accommodation in dispute vacated through execution and to file contempt for violation of undertaking.

Order Date :- 22.04.2013

NLY