Parvinder Kumar vs VII A.D.J.Kanpur Nagar

J.C. Gupta, J.—This is tenant''s writ petition.

The dispute relates to a shop in the ground floor of premises No. 51/10 (old) new No. 51/47,48 and 49, Ramganj, Kanpur. Respondent No. 3 landlord filed suit for ejectment against M/s. Parvinder Kumar Ajai Kumar as defendant No. 1, the petitioner as defendant No. 2 and respondent No. 4 as defendant No. 3. Suit was filed with the allegations that the petitioner and respondent No. 4 were tenants of the disputed shop; that the rent receipts were being issued in the name of Parvinder Kumar Ajai Kumar (defendant No. 1) ; that the defendants had not paid rent from 161985 nor had they paid the increased water tax and sewerage tax; that Vijai Kumar, Smt. Kiran Nanda and Smt. Kaushalya Devi in conjunction with Parvinder Kumar had started a new business in the disputed shop under the name and style of Vijay Trading Company and the shop was now in occupation of this firm ; that the defendant Nos. 1,2 and 3 have thus transferred the occupation of the shop in question to subtenants without permission of the landlord; that the provisions of U.P. Act No. 13 of 1972 were not applicable to the accommodation in question and that the respondent No. 3 sent a notice of termination dated 9121985 on the defendants which had been duly served on them on 20121985.

Only the petitioner contested the suit inter alia alleging that defendants No. 2 and 3 have jointly taken the disputed shop as tenants in July, 1975 at a monthly rent of Rs. 350 and that since 1091988 the petitioner alone had been carrying on business in the name and style of M/s. Kashmiri Lai and Sons as its sole proprietor and had been alone paying rent for the same; that the business under the said name and style suffered serious set back during the riots at the time of assassination of late Prime Minister Smt. Indira Gandhi and that at present the petitioner was carrying on business under the name and style of M/s S. Kumar and Company as its sole proprietor and Ajai Kumar defendant No. 2 had no longer any interest in the disputed shop or in the tenancy or the business carried on therein and the petitioner was in occupation as sole tenant and was paying rent to the respondent No.

3 against receipts which were being still issued in the name of M/s. Parvinder Kumar Ajai Kumar. It was further alleged; that the business carried on under the name and style of M/s. Vijay Trading Company had been closed down on 9983 and since then he alone is carrying on the business and the starting of partnership business in partnership did not amount to an act of subletting as the so called partnership firm had nothing to do with the tenancy and that during the time during which the business had been carried on under the name and style of M/s. Vijay Trading Company no objection was raised on behalf of the landlord. It was further pleaded that the shop was not a newly built shop as it has� been in existence before 1976 and on the date of the suit the disputed shop was more than 10 years old and was thus governed by the Act. The petitioner also claimed benefit of Section 20(4) of the Act by depositing the requisite amount.

On an examination of evidence on: record, the trial Court by the judgment dated 1091991 decreed the suit holding that the provisions of the Act where not applicable ; that though the defendantpetitioner made requisite deposit as contemplated under Section 20(4) of the Act but was not entitled to get any benefit of the said provisions as the Act itself was not applicable. The trial Court further held that the defendant has sublet the disputed shop and that the notice of termination was duly served upon the petitioner. The revision preferred by the petitioners against the judgment of the trial Court has also been dismissed by the judgment dated 151993 and the revisional Court upheld the findings recorded by the trial Court.

Shri S.P. Mehrotra, learned Counsel appearing for the petitioner and Sarvoshri S.N. Verma, AN. Sinha and Shri Naveen Sinha, learned Counsel appearing for the respondentlandlord have been heard.

A perusal of the impugned judgments would show that the decree for eviction of the petitionerdefendant has been passed on the ground that the Act was not applicable to the shop in question and further that even if the same was applicable the defendantpetitioner made himself liable for ejectment on the ground of subletting. Both the Courts below have also concurrently held that notice of termination had been duly served upon the petitioner.

The first and foremost question for consideration in this writ petition is whether the provisions of the Act were applicable to the shop in question on the date when the suit was instituted ? Undisputedly the suit in question was filed on 25th July, 1985 and as per the findings recorded by both the Courts below the shop in question was constructed within a period of 10 years of the date of institution of the suit. This finding is based on consideration of the copy of the quinquennial assessment for the year 197378 which indicates that the shop in question was subject to assessment and was assessed for the first time from 1 41978. There is an endorsement in the said paper that under the order of the assessment committee the building in question was assessed with effect from 141978.

Learned Counsel for the petitioner argued that neither any resolution nor the order of assessment'' committee was produced before the Courts below and since the oral evidence was led to the effect that the building in question was in existence before 1976, the said finding of the Courts below is liable to be vitiated. After examining the record this Court finds no substance in the above submission of the learned Counsel for the petitioner.

It is now well settled that the date of construction of a building under the provisions of the Act is to be determined in accordance with Explanation I to Section 2 (2) of the Act. This Explanation provides a simple, convenient and expeditious procedure for determining the date of construction. It says that the date of construction shall be deemed to be the date on which the completion of construction is reported or otherwise recorded by the local authorities having jurisdiction and in case the building is subject to assessment, the date on which the first assessment thereof comes into effect. It is '':nly in the absence of any one of the above three contingencies that the date of completion of building is to be determined on the basis of the date of its actual occupation. The Explanation thus makes use of an important legal fiction. The object behind introducing this statutory legal fiction seems to be that the lawmakers must have conceived that it was not always easy to define as to on which date construction of the building was actually completed or was it still in the process of completion and the Courts may be faced with two diametrically opposite versions. Perhaps to avoid such conflicting claims, a specific criteria has been furnished in the Explanation for deciding the question as to what constitutes a completed construction, instead of leaving the matter to be decided by the Courts on the oral evidence of the parties.

In the present case it has concurrently been found by both the Courts below that the building in question was subject to assessment and the first assessment came into effect from 141978 and since it had been brought within 10 years from the said date, the provisions of the Act did not apply to the shop in question. This finding of fact is supported by the copy of the quinquennial assessment for the period 197378. The said copy indicated that the building was first assessed with effect from 141978 under the orders of the assessment committee. There is a presumption about the correctness of the entries made in the assessment register and, therefore, this Court will not be justified in making interference in the aforesaid finding recorded by the Courts below.

Since the provisions of the Act do not apply to the shop in question, the issues relating to default in making payment of rent and of subletting loose importance. However, if the Act is held to be applicable, the petitionertenant would still be liable for eviction on the ground of subletting though may not be on the ground of default on account of requisite deposit having been made under Section 20(4) of the Act. On the question of subletting, it has been found as a fact by the Courts below that it is an admitted case of the tenant that the business in the disputed shop was being carried on in the name of M/s. Vijai Trading Company and the said business was closed down on 991983 and since thereafter the tenant was carrying on the business as sole proprietor in the name and style of M/s Kashmiri Lai and Sons and at present he is carrying on the business in the name and style of M/s S. Kumar and Company and Ajai Kumar the other cotenant had no longer any interest in the disputed shop or in the tenancy or the business carried on therein. In paragraph 6 of the writ petition it is further stated that the starting of the partnership business in partnership with the petitioner did not amount to an act of subletting as the so called partnership firm had nothing to do with the tenancy. The revisional Court had held that the constitution of the firm M/s Vijai Trading Company has not been denied by the tenant in his pleadings and the partners, namely, Smt. Kiran Nanda and Smt. Kaushalya Devi were not members of the family of the tenant. The tenant further admitted in his statement that he had only 30% share in the firm M/s Vijai Trading Company while the other ladies had 20% each. Therefore, from the own admission of the tenantpetitioner it was clear that the partners who were not family members of the tenant were inducted in the shop in question where the tenant was carrying on business. Section 12(2) of the Act provides that in the case of a nonresidential building where a tenant carrying on business in the building admitted a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.

Section 25 of the Act then lays down that no tenant shall sublet the whole or part of the building under his tenancy. Explanation to the said section provides that for the purposes of this section where the tenant ceases, within the meaning of clause (b) of subsection (1) or subsection (2) of Section 12 of the Act, to occupy the building or any part thereof, he shall be deemed to have sublet that building or part .thereof, A combined reading of the above provisions of Sections 12(2) and 25 of the Act will indicate that where the tenant admits any person not being a member of his family as a partner in the business carried on by the tenant in the tenanted building he shall be deemed to have sublet the same and accordingly the bar created under Section 20(1) of the Act for filing suit for eviction gets, removed. Clause (c) of Section 20(2) of the Act says that suit for eviction of a tenant from a building after the determination of his tenancy may be instituted where the tenant has sublet in contravention of provisions of Section 25, or, as the case may be, of the old Act the whole or any part of the building. In the instant case the finding recorded by the Courts below on the question of subletting, therefore, cannot be said to be erroneous or illegal.

The only question which now remains to be considered is whether the tenancy of the petitioner was duly determined by serving upon him a notice to quit as required under Section 106 of Transfer of Property Act ? It was argued by the petitioner''s Counsel before this Court that even as per the plaintiff''s case the shop in question was let out to petitioner and respondent No. 4 and rent receipts were being issued in the name of Parvinder Kumar Ajai Kumar. The notice was addressed to three person, namely,, M/s. Parvinder Kumar Ajai Kumar ; Parvinder Kumar and Ajai Kumar. The notice is said to have been served upon the petitioner by refusal. It is pointed out that the envelope containing the notice which is said to have been received by the landlord after refusal by the addressee shows that it was sent to Parvinder Kumar Ajai Kumar. It was argued that no service of notice on Ajai Kumar was shown to have been proved. Both the Courts below have, however, recorded a concurrent finding that the notice was sent to the petitioner at the correct address by registered post. It was received back with the endorsement of refusal and therefore, there was a presumption under law of due notice. Even as per the own case of the petitioner, he alone was carrying on the business in the disputed shop and Ajai Kumar had nothing to do with his business or with the tenancy. In paragraph 5 of the writ petition it has been specifically stated �since 1091983 the petitioner alone had been carrying on the business in the name and style of M/s. Kishori Lai and Sons as its sole proprietor and had been alone paying rent for the same and that the business under the said name and style suffered serious set back during the riots developed on the assassination of the late Prime Minister Smt. Indira Gandhi and that at present the petitioner was carrying on the business under the name and style of M/s. S. Kumar and Company as its sole proprietor and that Ajai Kumar had no longer any interest in the disputed shop or in the tenancy or the business carried on therein and that the petitioner was in possession as sole proprietor and sole tenant and was paying rent to the respondent No. 3 against receipts which were still being issued in the name of M/s. Parvinder Kumar Ajai Kumar�. It would thus appear that even as per the own case of the petitioner Ajai Kumar was having no interest in the tenancy nor he was in possession of the shop in question and the petitioner was alone paying rent to the landlord as sole tenant of the disputed shop. After this admission it does not lie in the mouth of the petitioner to contend that the tenancy of Ajai Kumar was not duly determined or that notice of termination was not served upon him. The notice in question was sent at the address of the shop in question by registered post and was received back by the landlord from the postal department with the endorsement of refusal. As already pointed out above, as per the own admission of the petitioner he alone was in read with Section 27 of the General Clauses Act there is a presumption that when a letter sent in a registered cover at the correct address of the addressee is received back with the postal endorsement, that the said letter was tendered to the addressee and he refused to accept the same.

In this view of the matter, there is no error of law in the finding recorded by the Courts below of due service of notice to quit upon the petitioner specially when no evidence or circumstances were brought on record to rebut the presumption of due service. This argument of the learned Counsel for the petitioner also fails.

For the reasons stated above, this writ petition must be dismissed as having no force.

The writ petition is dismissed. The stay order, granted earlier, shall stand vacated. However, the parties are directed to bear their own costs. Petition dismissed.