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Hari Om Sharma v. Smt. Shobha Goyal - CIVIL REVISION No. 294 of 2007  RD-AH 13279 (1 August 2007)
Civil Revision no.294 of 2007
Hari Om Sharma Vs. Smt.Shobha Goyal
Hon. Janardan Sahai,J
A suit for rent and ejectment was filed by the respondent Smt. Shobha Goyal against the applicant. The case of the respondent is that the provisions of U.P.Act No.13 of 1972 were not applicable as the building was constructed in the year 1995. It was alleged that the tenancy of the applicant was terminated by a notice under Section 106 of the Transfer of Property act dated 10.2.06. According to the respondent the rate of rent was Rs.3,650/- per month and the rent was due from 1.1.04. The copy of the written statement has been filed along with the stay application in this revision. The service of notice is admitted to the applicant in para 15 of the written statement. It was denied that Act no.13 of 1972 is applicable. It was alleged that the rate of rent was Rs.1200/- per month. The Judge Small Cause Court found that the self financing scheme under which the house was taken by the plaintiff was launched in 1992 and possession was handed over to the plaintiff on 31.5.95. The building was thus constructed after April, 1985 and as such Act no.13 of 1972 is not applicable to the building in question. Service of the notice was also accepted. On the question of rate of rent the case of the tenant applicant that it is Rs.1,200/- per month was accepted. It was found that the rent was not paid from 1.1.09. The trial court decreed the suit for eviction and for recovery of arrears of rent from 1.1.04 to 16.3.06 @ Rs.1200/- per month and for recovery of damages @ Rs.7500/- per month from 5.5.06 until the possession is handed over.
Two submissions were made by counsel for the applicant. Firstly that no issue was framed regarding service and invalidity of the notice under Section 106 of the Transfer of Property Act. The Second submission is that the damages @ 7500/--aper month awarded by the trial court are excessive and without any basis.
As regards the service of notice the applicant had admitted in para 15 of his written statement that the notice was served upon him. Nothing has been alleged to indicate that there was any invalidity in the notice. Counsel for the applicant could also not refer to any such invalidity in the notice. Therefore in view of the admission of the applicant in his written statement and as no invalidity in the notice has been pointed out, the order does not suffer from any illegality on this ground.
The second contention of the counsel for the applicant is that the damages awarded @ Rs. 7500/- per month are without any basis. Sri P.K.Sinha counsel for the respondent fairly concedes that the damages may be reduced to Rs.1200/- per month which was the rate of rent determiend by the trial court.
In the result the revision is partly allowed. While the order of eviction and for recovery of arrears of rent @ Rs. 1200/- per month is maintained, the recovery of damages @ Rs. 7500/- per month is set aside and is substituted by award of damages @ Rs. 1200/- per month.
Counsel for the applicant then prayed that six months time may be granted to the applicant to vacate the premises. Sri P.K.Sinha counsel for the respondent states that he has no objection provided the interest of the respondent is safeguarded by a suitable undertaking in this regard to be given by the tenant that he would vacate the premises on or before 1.2.08. In the circumstances the applicant is granted time till 1.2.08 to vacate the premises provided he furnishes an undertaking before the trial court within six weeks from today that he will hand over peaceful possession of the premises to the plaintiff respondent on of before 1.2.08 the date fixed by this court and will pay the decretal amount and the rent and damages awarded @ 1200/- per month to the plaintiff within two months from today and will continue to pay the damages very month till he hands over possession. In case of default It will be open to the respondents to execute the decree.
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