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RAJENDRA PRAKASH GUPTA versus SURENDRA KUMAR & OTHERS

High Court of Judicature at Allahabad

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Rajendra Prakash Gupta v. Surendra Kumar & Others - WRIT - A No. 55004 of 2006 [2006] RD-AH 17234 (5 October 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

    Court no. 7                                                        

         Civil Misc. Writ Petition No. 55004 of 2006

  Rajendra Prasad Gupta       versus Surendra Kumar and others

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

Respondent no.1 filed a suit against the petitioner-tenant for arrears of rent and eviction from the disputed shop situate in Mistanganj Bazar Rajdwara district Rampur.

The petitioner filed his written statement thereto denying the allegations made in the suit plaint.

The trial Court vide order dated 14.3.2006 allowed the suit of the respondent regarding eviction of the petitioner from the disputed shop.

Aggrieved by the aforesaid order dated 14.3.2006 the petitioner filed revision no. 34 of 2006 before the IIIrd Addl. Civil Judge, Rampur which too was dismissed vide order dated 30.8.2006, hence this writ petition.

The counsel for the petitioner submits that the petitioner made no default in payment of rent and the entire rent was sent to the respondent-landlord immediately after receipt of  notice and thereafter  on refusal of the landlord to accept the same it was deposited in Court before the first date of hearing along with entire costs and interest etc.  as such  the Courts below have wrongly held that the petitioner was not entitled to the protection of Section 20(4) of U.P. Act No. 13 of 1972. It is stated that the findings recorded by the courts below not only in this regard but also the findings with regard to the constructions of the disputed shop being new construction are perverse, illegal and against the material on record.

The counsel for the petitioner further submits that the landlord has failed to prove that the shop in dispute is a new construction  as such  the findings of the trial Court  that the provisions of U.P. Act No. XIII of 1972 shall apply to the shop in dispute is without any basis and against the  record. He also submits that the shop in dispute had been occupied by several tenants before it was let out to the petitioner and the date of first occupation by any tenant would be the date of construction and not the alleged date of assessment as wrongly held by the courts below.

The counsel for the respondents submits that there is no illegality and infirmity in the impugned orders of the courts below, hence no interference is required by this Court under Article 226 of the Constitution of India. It is urged by the counsel for the respondents that the three contingencies are mentioned in Explanation 1 (a) of Sub-Section (2) of Section 2 of U.P. Urban Buildings  (Regulation of Letting, Rent and Eviction) Act, 1972 which are as under:-

          "Explanation (1)  For the purposes of this Section-

(a) the construction of a building shall be deemed  to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied  (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time;

       Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;"

According to which date of construction of the building is to be ascertained. Referring to Explanation 1 (a) of Sub-Section (2) of Section 2 of U.P. Act No. 13 of 1972 it is submitted that the courts below have rightly come to the conclusion that in the facts and circumstances of the instant case the date of construction would be determined from the date of first assessment. It is also stated that more than 4 months rent was due from the petitioner as such even otherwise these impugned orders do not suffer from any illegality or perversity as alleged by the counsel for the petitioner.

              From the records it appears that rent for more than 4 months has not been paid by the petitioner to the landlords. The bank drafts  dated 23.4.84 and 6.8.86 appear to have been  submitted towards arrears of rent w.e.f. 1.8.85 is by way of Peshbandi. (Photocopies of which have been appended as Annexures-6 and 7 to the writ petition). In case the landlords had refused to accept the amount of rent, the petitioner-tenant should have immediately sent through money order to the landlords or deposited the same in the court below under U.P. Act No. 13 of 1972. There are concurrent findings of fact of both the courts below that the petitioner has not paid the rent of the disputed shop since 1.8.85. There is no illegality or infirmity in the impugned orders of the courts below that the building is covered under the U.P. Urban Buildings  (Regulation of Letting, Rent and Eviction) Act, 1972.

 For the reasons stated above, the writ petition is liable to be dismissed with heavy and deterrent cost.

Costs.

The Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC-3353  has held that-

             " So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates."

      Thus from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.

            The aforesaid case has been followed in Civil Misc. Writ Petition No. 48752 of 2006 Nizamuddin   versus   Shakoor Ahmad in which judgment has been rendered on 5.9.2006 after considering the relevant High Court Rules, 1952 as well as Sections 34,35,35A and 35B of the Code of Civil Procedure. In the judgment it has been held that-    

        " From the aforesaid rule it is evident that the Court can make such order as to costs as it may consider just. It is discretionary power of the Court to impose cost, hence it cannot be said to be illegal or perverse. The Court should award cost for judicious approach taking into consideration the whole set of facts and circumstances and not award cost arbitrarily or capriciously.

        In my opinion while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded."

              Considering all the facts and circumstances of this case, cost is assessed at Rs. 5,000/-. It shall be deposited by the petitioner before the authority concerned and paid to the landlord within two months from today. In case of failure of the petitioner to deposit the cost before the Executing Court, the same shall be recovered as arrears of land revenue from him within a month thereafter and paid forthwith to the landlord.

The petition is accordingly dismissed with cost as aforesaid.

Dated 5.10.2006

CPP/-


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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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