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DR.RAFIQ AHMED versus VII ADDL. DISTT. JUGDGE PILIBHIT & OTHERS

High Court of Judicature at Allahabad

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Dr.Rafiq Ahmed v. Vii Addl. Distt. Jugdge Pilibhit & Others - WRIT - A No. 49936 of 2000 [2007] RD-AH 1927 (7 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

   Court No. 7

                 Civil Misc. Writ Petition No. 49936 Of 2000

Dr. Rafiq Ahmad

Versus

VII Additional District Judge, Pilibhit & others

    ~~~

Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record.

An application No. 276232 of 2006 has been filed on behalf of Sri Rajesh Kumar (respondent no. 2) by Sri Triloki Nath on 19.12.2006 after service on Sri Shakeel Ahmad Azmi, learned counsel for the petitioner, for vacating interim order dated 27.11.2002 on the ground of its non-compliance by the petitioner.

The learned counsel for the petitioner in the circumstances prays for time  for filing rejoinder affidavit to the counter affidavit and counter affidavit to the aforesaid application no. 276232 of 2006 filed by Sri Triloki Nath on behalf of respondent no. 2 on 19.12.2006.

It appears from the record that counter affidavit in the writ petition was filed as long back as on 14.5.2001, but no rejoinder affidavit has been filed till date. Since no rejoinder affidavit has been filed rebutting the allegations made in the counter affidavit, the same are liable to be treated as correct in view of the decision rendered in Choksi Tube Co. Ltd. Vs Union of India, 1997 (11) S.C.C. 179 and Naseem Bano Vs State of U.P. and others, A.I.R. 1993 S.C. 2592.

Considering the facts and circumstances of the case, it appears that the learned counsel for the petitioner is delaying the disposal/hearing of the writ petition deliberately by not filing rejoinder affidavit in the writ petition and counter affidavit to the aforesaid application no. 276232 of 2006 despite grant of sufficient time and after service of the same upon him.

Once a writ petition or an application or an affidavit has been served, counter affidavit/reply/objection to the writ petition/application/affidavit is to be filed within a reasonable period of time from the date of service for which orders of  the Court are not required to be passed.  Pendency of writ petitions are already mounting due to this practice of learned counsel for the parties by asking for time again and again and the cases are listed accordingly again and again. It is therefore the duty of the learned counsel for the parties to inform their clients  for filing counter affidavit  or objection etc. as soon as they receive and served  with writ petitions, counter affidavits, rejoinder affidavits, affidavits, applications etc. If this is not done by them they would fail in their duties to represent their clients properly. However, considering the fact that the petitioner is a tenant and may be evicted if the interim order is vacated without grant of time the Court thinks it proper in the alternate to enhance the rent to bring it at par with the market rate of rent in accordance with law. In Atma Ram Properties  Vs M/s Federal Motors Pvt. Ltd., 2005 (2) A.R.C. 936, the Hon'ble Supreme Court has held : -      

"In the case at hand, it has to be borne in mind that the tenant has been paying Rs. 371.90 rent of the premises since 1944. The value of real estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord ad-measuring 2000 sq. ft. have been recently let out on rent at the rate of Rs. 3,50,000/- per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs. 15,000/- per month as charges for use and occupation during the pendency of appeal. The Tribunal took extra care to see  that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the appellate court consistently with the opinion formed by it at the end of the appeal. No fault can  be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent could not have been made. We cannot countenance the view taken by the High Court. We may place on record  that it has not been the case of the tenant-respondent before us, nor was it in the High Court, that the amount of Rs. 15,000/- assessed by the Rent Control  Tribunal was unreasonable or grossly on the higher side."  

Admittedly the rent of the shop in dispute is Rs. 165/- per month including Rs. 15/- of house tax and water tax since prior to 1987.

The learned counsel for the respondent-landlord submits that the rent of the shop in dispute ad-measuring 14 ft. X 8 ft. situate in the main market of Pilibhit is too meager and insufficient for maintenance of the building and payment of water tax, house tax etc. and since the shop in the tenancy of the petitioner is a commercial building and taking into consideration the area, location, nature of construction, current market rate of rent, locality etc the rent has to be proportionately increased during the pendency of the writ petition in order to balance equity.

In S.L.P. No. 19685/06 arising out of Writ Petition No. 8972 of 2002 (Hari Shankar Bhardwaj Vs Dharamendra Kumar Gupta) the Hon'ble Supreme Court has affirmed the view of this Court that the rent of the houses/buildings/shops may be fixed under Article 226 of the Constitution having a pragmatic approach and taking into consideration the area, location, nature of construction, current market rate of rent, locality etc. The order of the Hon'ble Supreme Court dated 9.12.2006 passed in the aforesaid S.L.P. No. 19685/2006 runs as under:

"Heard learned counsel for the parties.

We do not find any ground to interfere with the impugned order.

The Special Leave Petition is, accordingly, dismissed. However, time granted by the impugned order making the deposit is extended to 7th January, 2007."

Moreover, in view of the decisions rendered in Rajeshwari  (Smt.) Vs. Smt. Prema Agarwal, 2005 (1) ARC 526, Khurshida Vs. A.D.J., 2004 (2) ARC 64, wherein the rent was increased to about fifty times, the High Court held that it can enhance the rent to a reasonable extent as has also been held by this Court in Para 7 of the decision rendered in Smt. Zohra Vs IVth Additional District Judge, Jhansi, 2006 (63) A.L.R. 643 and 2004 (54) A.L.R. 177, and Hari Mohan Kichlu Vs. VIIIth A.D.J. Muzaffarnagar and others, 2004 (2) ARC 652, wherein the rent was increased to more than 28 times the High Court held that while granting relief to a tenant against eviction the writ court is empowered to enhance the rent to a reasonable extent.    

In view of the facts and circumstances such as city, location in which the building is situated, nature and quality of its construction etc., it would be appropriate that the rent of the shop in dispute be fixed as under: -

Area of shop (14 x 8) = 112 sq. ft. X Prevalent market rent @ (Rs. 15/- per sq. ft. = 1680/-

Considering the facts and circumstances of the case, it is directed that the petitioner-tenant shall during the pendency of the writ petition pay Rs. 1700/- per month as the rent of the shop in dispute w.e.f. February, 2007 payable to the respondent-landlord by 7th March 2007 and thereafter by 7th day of each succeeding month till further orders.

         In default of payment of the enhanced rent as directed above by this Court, the respondent-landlord can take action against the tenant in accordance with law.

        List this case in July, 2007.  

Dated: 7.2.2007

Rpk/                                  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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