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ABDUL HAMID versus X ADDL. D.J.

High Court of Judicature at Allahabad

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Abdul Hamid v. X Addl. D.J. - WRIT - A No. 28842 of 1991 [2005] RD-AH 7974 (22 December 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).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Civil Misc. Writ Petition No. 28842 of 1991

Abdul Hamid Versus  X Additional District  Judge, Meerut and others.

Hon'ble S.U.Khan J

This is tenant's writ petition. Landlady respondent No.2 Smt. Iqbali Begum instituted suit for eviction against tenant petitioner in the form of SCC Suit No. 79 of 1988 on the file of JSCC, Meerut. Accommodation in dispute consists of two rooms situate on the first floor rent of which is Rs. 12.50/- per month. In the plaint, it was stated that there was no latrine in the tenancy of the petitioner and he was permitted to use the latrine situate on the ground floor which was in tenancy of another tenant Mohd Hanif however due to differences between the two tenants, petitioner constructed latrine and a parda wall in the accommodation in his tenancy occupation hence he was liable to eviction on the ground of damage to the building and material alteration as provided under section 20(2)(b) and (c) of U.P Act No.13 of 1972. It was further stated that latrine was constructed in the open space on the first floor, which was also in the tenancy occupation of the tenant petitioner.

Petitioner pleaded that he had not constructed the latrine and parda wall and these constructions were already there when building in dispute was let out to him.

It was stated in the plaint that petitioner was tenant of two rooms on the first floor. In order to prove his case plaintiff filed extract of house tax assessment register. According to the plaintiff in the said extract (copy of which has also been filed as annexure 3 to the writ petition) no latrine was shown in the property in occupation of petitioner. The trial court did not believe the said assertion for two reasons firstly the trial court held that number of the property did not tally. In the notice plaintiff stated that number of the accommodation in dispute was 67 while in the extract of house tax register number was mentioned as 62 to 66 (old) and 35 (new). The second ground taken by the trial court was that in the extract of house tax register, property in occupation of the petitioner was mentioned as one room while admittedly he was tenant of two rooms. The trial court therefore concluded that no new construction was made by the tenant. The suit was therefore dismissed on 27.10.1990.

Against the said judgment and decree landlady respondent No.2 filed SCC Revision No. 259 of 1990. X A.D.J. Meerut allowed the revision through judgment and order dated 7.9.1991; set-aside judgment and decree passed by the trial court and decreed the suit of the plaintiff for eviction. This writ petition by the tenant is directed against the said judgment and order of the revisional court.

Revisional court held that " while deciding revision under section 25 of the Act the court is competent to look into the findings of the fact if it has caused miscarriage of justice". The revisional court was not correct. In revision under section 25 of Provincial Small Causes Courts Act, pure findings of fact can not be disturbed. At another place revisional held that "therefore the issue of material alteration is to be decided on the basis of documentary evidence as well as the circumstances of the case".

The petitioner had admitted that he had strained relations with the tenant of the ground floor i.e. Mohd Hanif. From this admission alone revisional court inferred that petitioner constructed latrine on the first floor, so that he could avoid using the latrine in occupation of Mohd Hanif. Such inference was not at all warranted. Revisional court did not at all advert to the two reasons given by the trial court for not placing reliance upon extract of house tax register. Those grounds were very relevant.

Revisional court also held that construction of latrine in tenanted building by digging and damaging floor amounts to material alteration and diminishes the value of the property. There was absolutely no allegation that foundation was dug for constructing the walls for constructing the latrine. Even otherwise on the first floor foundation cannot be dug. Even if it is assumed that by raising temporary walls on the fist floor latrine was constructed, it will not amount to material alteration under section 20(2) (c ) of the Act.

In this regard reference may be made to the authority of the Supreme Court reported in Waryam Singh Vs. Baldeo Singh 2003(1) Alld. C.J 577. The said authority has been relied upon in G. Raghunathan Vs. K.V.Varghese 2005 AIR SCW 4086 and Hari Rao Vs. N.Govindachari AIR 2005 SC 3389.

Accordingly I find that judgment and order passed by the revisional court is patently erroneous in law and liable to be set-aside.

Writ petition is therefore allowed. Impugned judgment and order passed by the revisional court is set-aside and judgment and decree of the trial court is restored.

I have held in Khursheeda Vs. A.D.J 2004(2) ARC 64 that while granting relief to the tenant against eviction in respect of building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent. Property in dispute consists of two rooms and is situate in Meerut city. Rent of Rs. 12.50/- per month is virtually as well as actually no rent.

Accordingly it is directed that with effect from January 2006 onwards, tenant petitioner shall pay rent to the landlady respondent No.2 at the rate of Rs. 500/- per month.

Waqar

Dated: 22.12.2005


Copyright

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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