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Hem Dev v. Iiid. A.D.J. Bijnor - WRIT - A No. 38655 of 1996 [2005] RD-AH 362 (7 February 2005)


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).


                                                                                   Court No. 26

                     Writ Petition No. 38655 of 1996.

Homdev                                                         Petitioner


III Addl. District Judge,

& others.                                                      Respondents.



Hon. Vikram Nath, J.

This writ petition by the landlord is directed against the judgment and order dated 11.08.1995 and  30.08.1996 passed by the respondent No. 2 and 1 respectively, whereby the suit filed by the petitioner for recovery for arrears of rent and ejectment against respondent No. 3 from the premises in dispute was dismissed and the revision against the same had also failed.

The dispute is with regard to a shop constructed over portion of Araji Khasra No. 1932 Mohalla Jatan, Town Kiratpur, District Bijnor of which the petitioner is the owner and landlord and respondent No. 3 is the tenant. The shop in dispute was let out to the respondent No. 3  at a monthly rent of Rs. 250/= per month in the year 1986. Subsequently, the rent was enhanced to Rs. 300/= per month plus taxes. The tenant committed default in payment of rent. Accordingly the landlord petitioner filed a suit for recovery of arrears of rent and ejectment, which was registered as SCC Suit No. 73 of 1992. It is alleged that the shop in dispute was constructed in the year 1984 and was put to assessment in the year 1986 and, therefore, when the suit was filed in the year 1992, the premises in dispute would not be covered by the provision of the U.P. Urban Buildings(Regulation of Letting, Rent and Eviction) Act, 1972,(hereinafter referred to as the Act), as 10 years had not passed since the date of constructions. The tenant filed written statement denying the plaint allegations and alleged that the Act was applicable, as the shop in dispute has been constructed in the year 1980 and, therefore, at the time of filing suit in the year 1992 more than 10 years had elapsed. The tenant also made deposits under Section 20(4) of the Act and claimed protection against eviction. Both the parties led evidence in support of their cases. The Trial Court vide judgment dated 11.08.1985 held that the Act was applicable to the shop in dispute and further that the tenant had made sufficient compliance of  Section 20 (4) of the Act. It accordingly dismissed the suit.  

The petitioner landlord filed revision under Section 25 of the Provincial  Small Causes Court Act 1887, (hereinafter referred to as the Act 1887), which was registered as SCC Revision No. 54 of 1995. The revisional Court has also dismissed the revision vide judgment dated 30.08.1996.

Aggrieved by the said judgment, landlord has filed the present writ petition.

I have heard Sri K.L. Grover, learned senior counsel assisted by Sri Ramesh Singh, Advocate, for the petitioner and Sri N.C. Rajvanshi, learned senior counsel assisted by Sri Manik Chand Mishra, Advocate, for the respondent No. 3.

Learned counsel for the petitioner has addressed the Court on two points firstly with regard to applicability of the Act and secondly, with regard to giving benefit of Section 20(4) of the Act to tenant. With regard to the finding regarding applicability of the Act it has been contended that even though the revisional Court has referred to the various provisions which were applicable for determining the date of construction of the building mentioned in the Act however, after quoting the relevant provisions, the revisional Court failed to record any finding as to whether the Act was applicable or not. In the circumstances it is contended that the judgment of the revisional Court is vitiated in law.

On the other hand learned counsel for the respondent contended that the revisional judgment being a judgment of affirmance   there was no necessity for the revisional court to record specific finding. However, the learned counsel could not place any finding recorded by the revisional Court in the impugned judgment in the issue of applicability of the Act. Even though it discussed the provisions of law relating to the said issue but has not expressed any opinion nor recorded any finding with regard to the date of constructions or date of assessment or date of occupation and on the basis of which of the dates the act would be held to be applicable to the shop in dispute. A perusal of the judgment indicates that the revisional Court has failed to record any finding and, therefore, the judgment is vitiated. It was mandatory for the revisional Court to record specific finding regarding the applicability of the Act.

The second contention of the petitioner is that deposits made by the tenant respondent no. 3 were not sufficient compliance of Section 20(4) of the Act. Firstly for the reason that deposits were not made on the first date of hearing and secondly, that the entire amount due under Section 20(4) of the Act was not deposited as costs of notice was not included in the deposit. Sri Rajvanshi, learned counsel for the respondent has strongly urged that there was sufficient compliance and the tenant was entitled to the protection provided under Section 20(4) of the Act.

Since the applicability of the Act which is the first issue is to be decided which will determine as to whether benefit of Section 20(4) of the Act is available to the tenant or not. Since the matter is being remanded to the revisional Court for deciding as to whether or not the Act is applicable it is also left open for the Revisional Court to look into the finding with regard to deposit of Section 20(4) of the Act for the reasons stated above i.e. whether it was made on the first date of hearing and secondly whether the cost of the notice was liable to be deposited and if liable whether deposited or not.

In view of the above discussion the writ petition succeeds and is allowed. The impugned judgment dated 11.08.1995 and 30.08.1996 are set aside. The matter is remanded to the revisional Court for decision a fresh in the light of the observations made above.

Both counsels have agreed that the parties will appear before the revisional Court (III Additional District Judge) Bijnore on 21.03.2005. The revisional Court will decide the revision within 3 months from the date of production of certified copy of this order.    

Dated: 07.02.05.  

v.k.updh. (v-54)


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