Allahabad High Court
Hem Chandra vs Addl .Dist. Judge And 2 Ors. on 30 September, 2013
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
AFR
Case :- WRIT - A No. - 47519 of 2013
Petitioner :- Hem Chandra
Respondent :- Addl .Dist. Judge And 2 Ors.
Counsel for Petitioner :- H.N.Sharma
Counsel for Respondent :- R.K.Mathur
Hon'ble B. Amit Sthalekar,J.
This writ petition has been filed challenging the orders dated 6.5.2013 and 11.5.2011 passed by the Addl. District Judge, Moradabad and Judge Small Causes Court, Moradabad respectively.
Briefly stated the facts of the case are that the respondent-landlord Virendra Kumar Sharma filed S.C.C. Suit No. 6 of 2009 claiming that he is the owner and landlord of private shop no. 2 situated in Mohalla Patpat Saraiganj, Moradabad of which the petitioner-defendant is the tenant on a monthly rent of Rs.750 with liability to pay water tax at Rs.75 per month and house at Rs.75/- per month. The plaint case of the landlord was that the construction has been made in the year 1990 and, therefore, the premises in question stands outside the purview of Act No. 13 of 1972. His case was that the petitioner-tenant for the last time paid rent and taxes from 28.5.2008 to 16.8.2008 and thereafter he did not paid any rent on repeated demands. It is also stated that a notice was sent on 18.2.2009 to the tenant-petitioner demanding rent and simultaneously terminating his tenancy. The notice was served on the petitioner on 19.2.2009 but he neither paid the rent nor vacated the shop in question. Hence the suit.
A written statement was filed by the petitioner-tenant claiming that the construction was old construction and, therefore, the Act No. 13 of 1972 was applicable and, therefore, the petitioner-tenant could not have been evicted from the premises in question by a mere notice without complying with the provisions of the Act. The trial court after considering the evidence on record as well as documentary evidence on record has held the construction to be new construction made in the year 1990 and has, therefore, held that the premises in dispute stands outside the purview of Act No. 13 of 1972 and has accordingly decreed the suit of the respondent-landlord and also directed the petitioner-tenant to pay the arrears of rent from 17.6.2008 to 21.3.2009 at Rs. 8220/- and further rent of Rs.900/- per month during the pendency of the suit. The court has decreed the suit by judgment and order dated 11.5.2011.
Aggrieved the petitioner-tenant filed SCC Revision No. 23 of 2011 which also has been dismissed by judgment and order dated 6.5.2013. Aggrieved the petitioner-tenant has filed the present writ petition.
Heard Shri Arvind Srivastava, learned counsel for the petitioner.
It has been submitted by the learned counsel for the petitioner that the premises are old construction having been made prior to the cut of date of 26.4.1985 as provided in section 2(2) second proviso of Act No. 13 of 1972 and, therefore, the petitioner could not have been evicted from the premises in question without resorting to the procedure prescribed in the Act. In support of his contention he has drawn the attention of the court to the Statement given by the landlord, filed as Annexure-7 to the writ petition, wherein the landlord has stated that the constructions were old and only repairs were made and the walls remained where they were and though the foundation is old but 7 - 8 new walls have been put up and the new walls which have been put up found mention in the duly sanctioned map. In his statement he has stated that previously there were no shops and even the wooden doors were not in existence.
The trial court noting these findings while deciding the issue no. 4 as to whether the Act No. 13 of 1972 is applicable or not has relied upon the document filed by the landlord (respondent herein) as paper no. 24-C to 27(C) as well as the statement of the landlord and has held that in the rent agreement it has been stated that the constructions were made on 30.4.1990 and this fact has not been disputed by the defendant-petitioner rather this fact has been admitted by him and on this finding has held that the Act No. 13 of 1972 is not applicable and has therefore, decreed the suit. The revisional court has also dismissed the revision filed by the petitioner tenant.
Learned counsel for the petitioner has submitted that constructions were old and made prior to 26.4.1985, the cut of date provided under section 2 (2) second proviso to Act No. 13 of 1972 and he has further referred to the explanation (I)(c) which reads as under:
"I (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition;"
A perusal of the explanation (I)(c) to the second proviso to sub section (2) of Section 2 of Act No. 13 of 1972 demonstrates that so far as the interpretation of the new construction and old construction is concerned, the explanation provides that where substantial addition is made to an existing building so much so that the existing building becomes only a minor part of the whole building including the existing building then such building shall be deemed to have been constructed on the date of completion of the addition.
Thus if this explanation is applied to the facts of the present case it will be noticed that even if the landlord-respondent had in his statement stated that the constructions were made during the time of his grand mother and that a foundation existed but 7 - 8 new walls have been constructed which are reflected in the map and further that in the rent agreement (Kirayanama) specific date of such construction is mentioned as 30.4.1990, in such circumstances, the substantial construction to the original construction shall be deemed to be made on the date of such construction and, therefore, the premises in question will have to be treated to have been constructed in the year 1990 and not in 1970 or earlier as claimed by learned counsel for the petitioner. Thus from the position emerging from the facts of the case and law applied thereto the impugned orders do not call for any interference on the findings of fact that the constructions were made on 30.4.1990 and not prior to that and, therefore, the Act No. 13 of 1972 is not applicable to the premises in question.
For the aforesaid reasons the writ petition fails and is accordingly dismissed.
However, at this stage, learned counsel for the petitioner submitted that six months time may be given to the tenant to vacate the premises and hand over the vacant possession to the landlord, I am not inclined to accept the prayer of the learned counsel for the petitioner and the same is rejected.
Order Date :- 30.9.2013
o.k.
