Kishor Kapoor vs Laxmi Narain Goel
2013 Latest Caselaw 2362 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
"Reserved" 
 
Court No. - 7
 

 
Case :- WRIT - A No. - 26054 of 2013
 

 
Petitioner :- Kishor Kapoor
 
Respondent :- Laxmi Narain Goel
 
Counsel for Petitioner :- A.K.Rai,Sharad Chandra,Vishnu Kr.Singh
 
Counsel for Respondent :- Anand Prakash Srivastava,Arvind Kumar @ Laddu
 

 
Hon'ble Krishna Murari, J.

Heard Sri Vishnu Kumar Singh, learned counsel for the petitioner and Sri A. P. Srivastava appearing for the respondent.

Dispute relates to shop no. 2, property no. 40 situate at  Shivaji Marg, Firozabad which was in the tenancy of the petitioner. Respondent-landlord instituted SCC Suit no. 01 of 2009 seeking relief for ejectment of the petitioner on the allegation, inter-alia, that shop in question was let out to the petitioner at the rate of Rs.532/- per month excluding the water-tax and the construction of the shop was completed in the year 1987 hence the provisions of U. P. Act No. 13 of 1972 are not attracted. It was further asserted that tenant has failed to pay rent since January, 2008 hence his tenancy was terminated vide notice dated 08.08.2008. The suit was contested by the tenant-petitioner by filing written statement denying the plaint allegation. It was specifically asserted that  construction of the shop in question is prior to 1980 and the provisions of the Act No. 13 of 1972 are fully applicable. It was also pleaded that respondent had not filed any sanction map to substantiate that shop was constructed in the year 1987. It was admitted in the written statement that he was inducted as tenant on 01.08.1988 and thereafter rent deed was also executed on 25.08.1988 and the entire rent was paid to the landlord till 28.01.2008 and when thereafter the landlord refused to accept the rent, it was sent by money order which was also not received and hence the rent was being deposited under the provisions of Section 30 of U. P. Act No. 13 of 1972 in Misc. Case No. 13 of 2008. It was further pleaded that entire rent for the period 25.01.2008 to 27.03.2009 has been deposited. Judge, Small Causes Court after analyzing the evidence brought on record by the parties decreed the suit on the finding that shop in dispute was constructed in the year 1987 and the provisions of the U. P. Act No. 13 of 1972 were not applicable and the tenancy was terminated by valid notice. The petitioner-tenant went up in revision which has also been dismissed.

It is contended by the learned counsel for the petitioner that courts below have failed to consider the material fact that landlord has failed to file any sanction map of the shop in question or adduce any reliable evidence to prove the actual date of construction of the shop in dispute. It is further submitted that the courts below have also failed to consider the effect of the judgment and order dated 23.03.2011 passed in Original Suit no. 88 of 2008 by the Civil Judge (Junior Division) as well as admission of the landlord therein that there has been no default in payment of rent.

I have considered the arguments advanced by the learned counsel for the petitioner and perused the record.

Judge, Small Causes Court while recording the finding that provisions of U. P. Act No. 13 of 1972 were not applicable  relied upon the evidence filed by the landlord in the form of assessment register of Nagar Palika, Firozabad from April 1979 to March, 1987 as well as 1st April, 1987. Analyzing the aforesaid documentary evidence, he found that the disputed shop does not find place in the tax assessment from April, 1979 to March, 1987 whereas in the tax assessment dated 1st April, 1987, four shops have been shown. On the basis of the same, he recorded a finding that the shop in dispute was not constructed prior to 1980 but has been constructed in 1987. As against the documentary evidence adduced by the landlord-respondent, tenant only made oral statement that the shop in dispute was constructed before 1980. No documentary evidence having been produced by the tenant either in support of his oral statement or to contradict the documentary evidence adduced by the landlord to show that shop was assessed for the first time on 1st April, 1987, the findings recorded by the Judge, Small Causes Court and affirmed by the revisional court that provisions of U. P. Act No. 13 of 1972 are not attracted cannot be faulted with.

It was further submitted by the learned counsel for the petitioner that the shop, even if, constructed in 1987, since they were only a minor part of the existing building and the existing building being under the purview of the U. P. Act No. 13 of 1972, the provisions of the Act would apply on the newly constructed shops as well. However, a perusal of the record indicates that necessary details in this regard are lacking in the pleadings as well as in the evidence that was brought before the court below. There is nothing on record to indicate that addition in the form of four shops  (including the disputed shop) which was carried out by the landlord in the year 1987 was minor portion of the entire building or was a substantial addition making existing building a minor portion of the entire construction. This was dependent upon the facts pleaded by the parties which are missing. Hon'ble Apex Court in the case of Mundri Lal (Shri) Vs. Smt. Sushila Rani and another [2007 (3) ARC 501] while interpreting the provisions of Clause (c) of Explanation 1 of Section 2 of the Act has observed  in paragraph 18 as under :

"What would amount to a new construction, being essentially a question of fact, would depend upon the nature and extent of the additions and alterations made in the whole building. It does not confine to a floor where the tenanted premises is situate. Where several tenants are inducted in different parts of the same building, it would be difficult, in the event, the submission of Mr. Raju Ramachandran is accepted to hold that one part of the building shall be governed by the Act and the other part would not be. Clause (c) of the Explaination 1 in our considered opinion makes the legal position absolutely clear."

In the case in hand, there is no pleading that newly constructed four shops (including the shop in dispute)  were a part of the already existing building or have been constructed independent  of the existing building though on the same piece of property. Mere description in the pleading that shop in dispute is numbered as 2 and situate on property no. 40 is not sufficient to reach the conclusion that it is a part of the existing building or not. The shop could be part of the building or independent of the same though standing on property no. 40. In the absence of specific pleading on this issue and also any evidence in this regard once the shop in dispute was assessed for the first time in April the irresistible conclusion is that it was constructed in 1987. In the absence of pleadings, parties being fully aware of the issues involved the findings of the two courts below on the question cannot be faulted with. Hon'ble Apex Court in the case of Mundri Lal (Shri) (supra) has further observed in paragraph 29 as under :

"It is true that respondent could have made more elaborate pleadings; but we have noticed herein before that no grievance was made in regard thereto. The parties knew the stand taken by the other. The issue involved  in the suit was a simple one namely whether the construction was an old one or a new one. Even in the revision application, no such question was raised as it appears from the impugned judgment of the High Court. Such a ground was taken before us for the first time. There is also nothing to show that the appellant has been prejudiced in any manner whatsoever. It is a well settled principle of law that when parties have gone into trial knowing fully well the issue involved, inadequate pleading, if any, may not be sufficient to set aside the judgment."

In view of the facts and discussions, herein above, there appears to be no illegality in the findings of the two courts below that provisions of U. P. Act No. 13 of 1972 were not applicable to the shop in dispute.

That being the position, the tenancy of the petitioner having been terminated by notice under Section 106 of the Transfer of Property Act, which has been found to be valid by both the courts below and the learned counsel for the petitioner having failed to point out any illegality in the same, there is no scope for interference in the impugned orders.

The writ petition accordingly fails and stands dismissed in limine.

Order Date :- 20.5.2013

Dcs