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SMT. HABIBA KHATOON & OTHERS versus ADDL. DISTRICT JUDGE & OTHERS

High Court of Judicature at Allahabad

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Smt. Habiba Khatoon & Others v. Addl. District Judge & Others - WRIT - A No. 14043 of 1991 [2005] RD-AH 5907 (17 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 51)

Civil Misc. Writ Petition No. 14043 of 1991

Smt. Habiba Khatoon and another Versus XI Additional District Judge, Moradabad and others.

Hon'ble S.U.Khan, J

Heard learned counsel for the tenants petitioners.

No one has appeared on behalf of vendees of deceased respondent No.3 who have been substituted at the place of respondent No.3.

This is tenants' writ petition arising out of eviction suit filed by original landlord respondent No.3, Laiq Ahmad against original tenant Alauddin since deceased and survived by petitioners. The suit was registered as Suit (SCC suit) No. 111 of 1986. In Para 4 of the plaint it was stated that accommodation in dispute was given to the defendant for residential purpose however in a part thereof he had installed Bhatti (furnace) and was doing the job of Dhalai (moulding) and Chilai for which he had no right and the said acts had caused inconvenience to the plaintiff in ascending and descending the stairs and amounted to nuisance also. Even though in the plaint specific plea of eviction on the ground of inconsistent user as provided under section 20(2) (d) of U.P Act No. 13 of 1972 was not taken however a specific issue was framed by the trial court in that regard being issue No.1. The trial court/JSCC, Moradabad under the said issue found that house in dispute was given for residential purpose and tenant had illegally started using a portion thereof for business purpose hence he was liable to eviction. Suit was decreed for eviction and for recovery of rent and pendente lite and future rent                                           / damages at the agreed rate of Rs. 8/- per month, on 5.4.1990. Against the said judgments and decree petitioner filed SCC Revision No. 73 of 1990. Revision was dismissed on 8.4.1991 by XI Additional District Judge, Moradabad, hence this writ petition.

On behalf of tenant, it was repeatedly asserted before both the courts below that he was using only a small portion of the house in dispute for business purpose and predominant use of the house was still for residential purpose as the family of tenant which consisted of 11 persons was residing there. Unfortunately both the courts below did not decide this question that whether predominant use of the accommodation was for residential purpose or business purpose.

In view of the fact that, 11 persons were residing in the accommodation in dispute it can not be said that predominant user of the premises in dispute was commercial and not residential. In any case specific plea in that regard was not taken in the plaint. What was emphasized in para 4 of the plaint was inconvenience to the landlord and nuisance. Under U.P Act No. 13 of 1972, these two grounds are not valid grounds for eviction of the tenant. Tenant may be evicted, if the building is covered by U.P Act No. 13 of 1972, only on any of the grounds mentioned under section 20(2) of the said Act. Nuisance or inconvenience to the landlord does not find mention in any of the clauses of the said subsection.

Accordingly writ petition is allowed. Both the Judgments, decree of the trial court as well as order of the revisional court are set-aside. Suit of the plaintiff is dismissed.

I have held in Khursheeda Versus A.D.J 2004(2) ARC 64 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act writ court is empowered to enhance the rent to a reasonable extent. Rent of Rs. 8/- per month is virtually as well as actually no rent. Accordingly it is directed that tenant shall pay rent of the accommodation in dispute to the landlord respondent at the rate of Rs. 300/- per month. Under interim order dated 20.2.2004, passed by this court the said rent is being paid by the tenant. It shall be continued to be paid in future also.

Waqar

Dated: 17.11.2005


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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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