Allahabad High Court
Ram Gopal Rathaur vs Ravindra Nath Dubey on 8 August, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 26.07.2013
Delivered on 08.08.2013
Case :- RENT CONTROL No. - 83 of 2013
Petitioner :- Ram Gopal Rathaur
Respondent :- Ravindra Nath Dubey
Counsel for Petitioner :- Sahab Usmani,Mohd.Shakeel
Counsel for Respondent :- Hari Om Singh
Hon'ble Sibghat Ullah Khan,J.
Heard Mr. Mohd Sakeel, learned counsel for the tenant petitioner and Sri Hari Om Singh, learned counsel for landlord-respondent.
This is tenant's writ petition arising out of suit instituted by landlord-respondent against him for his eviction from the accommodation in dispute in the form of S.C.C. (R/C) Suit No. 14 of 2005 Ravindra Nath Dubey Vs. Ram Gopal Rathaur. J.S.C.C. Sitapur decreed the suit for eviction and for recovery of Rs. 2,800/- as arrears of rent through judgment and decree dated 25.10.2011. Pendentilite and future rent @ Rs. 1200/- per month along with 10 % interest was also directed to be paid from the date of said judgement and decree. Against that decree tenant-petitioner filed SCC Revision No. 2 of 2012. ADJ/ Special Judge EC Act, Sitapur, dismissed the revision on 23.5.2013, hence this writ petition.
The landlord had contended that building in dispute which is a shop was constructed after 1991, hence U.P. Act No. 13 of 1972 was not application. Suit was filed after terminating the tenancy through notice dated 30.7.2005 under Section 106 of T.P. Act. Through the notice rent for the months of May, June, July, 2005 Rs. 3,600/- was also demanded. Notice was served on 2.8.2005.
If U.P. Act 13 of 1972 is held to be applicable to the buildings in dispute then tenant will not be liable to eviction as according to the notice itself only three month's rent was due while under section 20(2)(a) of the Act the requirement is that rent for more than three months must be due. Moreover, on 30.7.2005 when notice was given demanding the rent of July, 2005 also, the rent of the said month had not become due it would have become due on 1.8.2010.
One of the points argued was that notice was not given by all the landlords. Even if it is assumed that apart from the plaintiff respondent there were other co-landlords also it will not make any difference. There is nothing wrong in giving notice and filing suit by one of the several joint landlords vide AIR 2004 Supreme Court 1321, P. K. Jaiswal Vs. B.H. Bano AIR 2005 Supreme Court, 2857 and AIR 2006 Supreme Court, 1471.
The most important point to be decided in this writ petition is regarding the date of construction of the shop in dispute. The courts below on the basis of municipal board assessment record held that in the assessment record of 1982-1986 and 1986-1993 the property of which shop in dispute is a part was described having only two rooms and courtyard and thereafter in the assessment records of 1993-2004 under construction shop was mentioned and house tax was also increased which proved that shop in dispute was constructed in or after 1991-93 or in any case after 1986. Kirayanama/rent note was also executed in between the parties in which the construction was shown to be of 1991. The defendant petitioner had pleaded that he was compelled to sign on blank papers. In this regard learned counsel has cited Gowardhan lalwani Vs. District Judge, Jhansi & others 2006 (64) AIR 590. The plaintiff-respondent purchased the shop in dispute from its previous owner on 11.5.2004 through registered sale deed.
Even if, rent note is ignored still municipal records clearly prove that the shop in dispute was constructed in between 86-93 as the shop was mentioned in the house tax assessment record for the first time in the records for the period from 1993 onward. By virtue of explanation to Section 2(1) construction of buildings shall be demand to have been completed from the date on which the completion thereof is reported to or otherwise recorded by the local authority and in the case of a building subject the house tax assessment the date on which the first assessment thereof comes into effect.
As the shop in dispute was constructed after April, 1985, hence U.P. Act No. 13 of 1972 was not applicable thereupon for 40 years by virtue of second proviso to Section 2(2).
Accordingly, I do not find any error in the impugned judgements, order and decree.
Writ petition is dismissed.
Tenant petitioner is granted 6 months time to vacate on the following conditions:
1. For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs.15,000/-( at the rate of Rs.2,500/- per month) as rent/damages for use and occupation. This amount shall be deposited within one month before the J.S.C.C., Sitapur and shall immediately be paid to the landlord respondent.
2. Within one month from today tenant-petitioner shall file an undertaking before the J.S.C.C., to the effect that within six months from the date of this judgment, he will willingly vacate and handover possession of the property in dispute to the landlord respondent. 3. Within one month from today tenant-petitioner shall deposit entire arrears of rent due till date before the J.S.C.C. for immediate payment to the landlord.
4. If within one month undertaking is not filed or the decreetal amount and amount of Rs.15,000/- is not deposited then from today till actual eviction tenant shall be liable to pay Rs.2,500/- per month as rent/damages for use and occupation.
5. Similarly if after filing undertaking and depositing the decreetal amount and aforesaid amount of Rs.15000/- property in dispute is not vacated within six months then since after six months till actual vacation tenant petitioner shall be liable to pay rent/damages @ Rs.2,500/- per month.
It is needless to add that this direction of payment of Rs.2,500/- per month is in addition to the right of the landlord to file contempt petition and to get the accommodation in dispute vacated through execution.
Order Date :- 8.8. 2013
S. Kumar
