Ajai Kumar vs Addl. District Judge Saharanpur

Manoj Misra, J.—Heard learned counsel for the petitioner.

The present petition has been filed challenging an order dated 29.10.2016 passed by the Court of Additional District Judge, Court No.7, Saharanpur in SCC Revision No. 38 of 2009 by which the judgment and decree passed by the Judge, Small Causes Court, Saharanpur dated 31.10.2009 in SCC Suit No. 50 of 2003 has been set aside and the matter has been remanded back to the trial court for deciding the suit afresh in the light of the observations made in the remand order.

A perusal of the record would go to show that SCC Suit No. 50 of 2003 was instituted by Shivji Maharaj @ Shriji Maharaj, Birajman Mandir, Andrun against the defendant-petitioner for arrears of rent and eviction by alleging that the suit property was property of deity on which U.P. Act No. 13 of 1972 was not applicable and that by a notice under Section 106 of the Transfer of Property Act, the tenancy of the petitioner had been terminated. The trial court framed various issues. Issue no.1 was whether there was landlord-tenant relationship between the plaintiff and the defendant. Issue no. 2 was whether U.P. Act No. 13 of 1972 was applicable or not. Issue no. 3 was whether the defendant had made material alterations in the tenanted accommodation. Issue no.4 was whether the defendant had been a defaulter in payment of rent and the Issue no. 5 was in respect of validity of the notice terminating tenancy.

In respect of landlord-tenant relationship no issue was raised during trial accordingly it was decided in favour of the plaintiff. So far as the issue no.2 was concerned, the same was decided in favour of the plaintiff on the basis of admission made by DW-1 inasmuch as he admitted that he was tenant of the temple which was known as Mathura Das Mandir and that all members of public were allowed to worship without any interference. The court found that the disputed accommodation was owned by Shivji Maharaj (deity) and as all members of the public were free to worship, therefore, this temple was a public religious institution and as such was exempted from the purview of U.P. Act No. 13 of 1972 by virtue of section 2(bb) read with Section 3(s) of the Act. In respect of issue no.3, the trial court came to the conclusion that the landlord failed to prove that material alterations were made by the defendant and, accordingly, the said issue was decided in favour of the tenant. In respect of issue nos. 4 and 5, the Court held that since after service of the notice, the tenant had remitted rent through money order, there was no default therefore the notice was bad. By returning the said finding, the suit was dismissed.

Against the judgment and decree of the trial court, the plaintiff-respondent filed a revision. The revisional court affirmed the finding of the trial court on the issue that U.P. Act No. 13 of 1972 was not applicable on the accommodation in dispute and found that notice was valid and merely because there had been a remission of rent after receipt of notice, the notice would not be rendered invalid, accordingly, after setting aside the judgment and decree passed by the trial court, it remanded the matter back to the trial court.

Learned counsel for the petitioner has urged that the finding that U.P. Act No. 13 of 1972 was not applicable on the accommodation in dispute is not in accordance with law inasmuch as the defendant had produced a document which was a release application filed under Section 16(1)(b) of the U.P. Act No. 13 of 1972 wherein it was claimed that the temple was a private temple; the said statement amounted to an admission therefore the finding returned by the trial court that it was a public temple was unsustainable in law and the revisional court ought to have set aside the said finding.

I have considered the submissions of the learned counsel for the petitioner and have perused the record.

The court below has dealt with the said document and observed that the statement in the release application did not carry any weight in the present proceeding because the release application was filed in the year 1992 whereas the amendment in U.P. Act No. 13 of 1972 exempting such buildings was of the year 1994 and, therefore, any such statement made earlier had no material bearing on the rights of the parties and since the defendant had admitted in his cross-examination that this was a temple where all members of public were allowed to worship, the finding returned by the trial court that the U.P. Act No. 13 of 1972 was not applicable in view of the amendment carried out in the said Act, was not liable to be set aside.

I do not find any legal error in the orders passed by the courts below in holding that the U.P. Act No. 13 of 1972 was not applicable to the accommodation in question. More so, because the learned counsel for the petitioner has not been able to demonstrate that the plaintiff witness was confronted with the earlier release application at the time of his cross-examination and that he had failed to tender appropriate explanation for the same. Further, there is nothing on record to show that the court below has misread the statement made by DW-1 which has formed the basis of the order passed by the court below.

For the reasons mentioned above, the petition is dismissed.