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Shri Mohammad Azmul v. Champa Lal And Another - WRIT - A No. 30235 of 2006 [2006] RD-AH 10375 (25 May 2006)


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Civil Misc. Writ Petition No. 30235 of 2006

Shri Mohammad Azmul


Champa Lal & Another

Hon'ble Krishna Murari, J.

Heard Sri Some Narayan Mishra learned counsel for the petitioner and Sri Ajit Kumar appearing for the respondents.

The facts are that respondents-landlords filed a JSCC Suit for arrears of rent and eviction of the tenant-petitioner from the premises in dispute after terminating the tenancy by a notice under Section 106 of Transfer of Property Act. It was pleaded in the suit that the building was not 10 years old as such the provisions of  U.P. Act No. XIII of 1972 (for short the ''Act') were not attracted. The tenant-petitioner contested the suit by filing a written statement. It was pleaded that the Act was applicable to the premises in dispute and he could not be evicted from the same on the ground of termination of tenancy and could only be evicted from the premises mentioned in Section 20 of the Act. It was further pleaded by the tenant-petitioner that notice under Section 106 of Transfer of Property Act was invalid and he had deposited the entire arrears of rent, damages and interest on the first date of hearing and therefore was entitled to the benefit of Section 20(4) of the Act.

The trial court vide its judgment and order dated 10.2.1986 dismissed the suit. It was held by the trial court that the shop was constructed in the year 1973 and during the pendency of the proceedings the period of 10 years were completed and therefore the Act became applicable. The revision filed by the respondents-landlords under Section 25 of the Provincial Small Causes Court was also dismissed on 22.1.1987. The Revisional Court has held that since the Act became applicable during the pendency of the proceedings, the tenant-petitioner could not be evicted except on the ground mentioned in Section 20(4) of the Act. Feeling aggrieved, the respondents-landlords approached this Court by filing writ petition no.  7703 of 1987. This Court vide judgment and order dated 30.4.2004 held that the tenant cannot be given advantage of the Act on the ground that the Act has become applicable during the pendency of the proceedings. However, the case was remanded back to the trial court on a limited question to determine whether a valid notice under Section 106 of Transfer of Property Act was served upon the tenant or not. After the remand the trial court finding the notice under Section 106 of Transfer of Prospect Act terminating the tenancy of the tenant-petitioner has been validly served, decreed the suit. The tenant-petitioner challenged the judgment and order of the trial court by filing revision under Section 25 of Provincial Small Causes Court. The Revisional Court confirmed the finding of the trial court and dismissed the revision.

It has been urged by the learned counsel for the petitioner that successive notices issued by the landlords-respondents  went to show that the intention of the landlords was not to terminate the tenancy but to claim the arrears of rent as such the suit could not have been decreed.

In reply, learned counsel appearing for the respondents has submitted  that the tenancy of the petitioner-tenant was terminated by giving a notice which was validly served upon him and as such it cannot be presumed that the intention was only to realize the rent and not to terminate the tenancy.

I have considered the arguments advanced by the learned counsel for the parties and perused the record.

Though the copy of notice has not been brought on record by the petitioner but the contents of the notice have been mentioned in the judgment of the Revisional Court. A perusal of the same goes to show that the tenancy of the petitioner was terminated by the said notice and he was asked to vacate the premises in dispute. In view of the same it cannot be said that there was no intention of landlords-respondents to terminate the tenancy.

Both the Courts below have recorded a concurrent finding of fact that notice terminating the tenancy was validly served upon the petitioner. In view of concurrent finding of fact recorded by two Courts below, there is no scope of inference in the same by this Court while exercising jurisdiction conferred by Article 226 of the Constitution of India.

The writ petition accordingly fails, and is dismissed summarily.

However, considering the facts and circumstances, the petitioner is allowed one month's time to vacate the premises in dispute.

Dt. 25.5.2006


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