Rakesh Kumar vs Satish Kumar

Shishir Kumar, J.—Supplementary affidavit filed today may be kept with the record.

Heard Sri B.Dayal, learned counsel for petitioner and Sri L.K.Tripathi, learned counsel appearing for respondent.

This writ petition has been filed by tenant against an order dated 13.11.2009 passed by Additional District Judge, Court No.14, Meerut by which revision filed by petitioner has been dismissed against an order passed by Judge, Small Causes Court dated 13.11.2009 by which respondent, who is landlord, his suit was decreed for arrears of rent and ejectment.

It appears that petitioner who is tenant of shop in question, rent was not being paid then a notice under Section 106 of the Transfer of Property Act was given that rent from 1.9.1999 to 26.2.2000 has not been paid. In spite of service of notice, no rent was paid, then suit was filed on the ground that shop in question was constructed in the year 1989 and it was first time assessed before the authorities in the year 1993, therefore, Act No.13 of 1972 is not applicable and petitioner is not entitled to get benefit of Section 20 Sub Clause 4 of the Act. The Judge, Small Causes Court has framed various issues to this effect that whether notice dated 12.1.2000 was served upon petitioner for terminating tenancy and whether rent from 1.9.1999 to 26.2.2000 at the rate of Rs.450/ is due as well as whether petitioner is entield to get benefit of Section 20 Sub Cluase 4 of the Act or not. Further issue was framed whether Act No.13 of 1972 is applicable or not.

As regards Issue No.1 regarding applicability of the Act, a finding has been recorded that first time the shop in question was assessed in the year 1993, therefore, Act No.13 of 1972 is not applicable. Further on the ground of service of notice, a finding has been recorded that it was sent on correct address by registered post, therefore, presumption of law will be that it has been served. After recording this finding suit was decreed by order dated 13.11.2009. Petitioner filed a revision that too has been dismissed. Hence, the present writ petition.

Sri B.Dayal, learned counsel appearing for petitioner submits that admittedly, building in question is old of the year 1976. After partition it became in the share of respondentlandlord and after putting shutter on residential accommodation, in case, shop has been assessed in the year 1993 after partition whether it can be treated to be a new construction. He has brought to the notice of the map annexed to writ petition as well as Annexure 7 to writ petition by which he wants to show that old number of the shop was 52 and now it has become 52A. In case, old accommodation has been modified or some alteration is made whether it can be treated that it is a new construction. No map sanctioned by the relevant authority or other document for the purposes of construction of shop in question has been produced before the Court. Therefore, presumption will be that old shop has been renovated and some alteration has been made and after partition, new number has been allotted, therefore, it cannot be treated to be new construction and the assessment treating to be new shop. The document submitted by petitioner has not been considered.

On the other hand, Sri Tripathi, learned counsel appearing for respondent submits that a finding has been recorded on the basis of relevant record by the Judge, Small Causes Court that shop in question was constructed in the year 1989 and in the year 1983 it was assessed first time. Further document submitted by respondentpetitioner has been considered which is apparent from the finding recorded by the Judge, Small Causes Court. Further submission has been made that it is well settled in law that date of assessment made in Nagar Nigam record is to be treated as date of construction. Petitioner has failed to submit any record to show therein that shop in question is existing prior to 1989. Further learned counsel for petitioner submits that earlier there was only two shops. Subsequently, it has been constructed about four, five shops after the partition. Therefore, presumption is always there that it is a newly constructed shop assessed by relevant authority in the year 1989.

I have considered the submission made on behalf of parties and have perused the record. A specific issue was framed by court below that whether the Act No.13 of 1972 is applicable or not. A finding has been recorded on the basis of relevant record that shop in question was constructed in the year 1989 and first time it was assessed on 30.9.1993. In such situation, court below has recorded a finding that as the Act is not applicable, therefore, petitioner in spite of fact, in case he would have complied the provision of Section 20 Sub Clause 4, is not entitled to get benefit in view of fact that Act No.13 of 1972 is not applicable. In the facts and circumstances as the Court has to see the date of assessment and from the record it is clear that date of assessment is 1993. Further as regards the contention raised by petitioner that it was an old construction and after partition when it came in the share of respondentlandlord he only put shutter and only fresh assessment on the basis of property partitioned has been made. Therefore, it cannot be treated to be a new construction. Petitioner is not able to show any document before the court below or before the revisional court to show that this particular shop is ever existing either in the old number and this old number has been assessed in the year 1993 of which new number has been given. As regards the submission made regarding service of notice under Section 106 of the Transfer of Property Act, admittedly, it is a shop and the notice was sent on correct address by registered post, it is not a case of petitioner that wrong address was mentioned. The Apex Court in AIR 1989 Supreme Court 630, M/s Madan and others v. Wazir Jaichand, has held that if a notice has been sent by registered post on a correct address, then service will be treated to be sufficient. In 2006(3) JCLR 26 (Allahabad). Prakash Chandra Gupta v. Soberan Singh and in 2006 UPRCC 468, Krishna Chandra v. Addl.District Judge, Gorakhpur this Court has held that if notice has been sent by registered post, then it is not necessary that the postman may be examined. Further in AIR 2002(Supreme Court) 3557, Basant Singh v. Roman Catholic Mission, the Apex Court has further held that were the notice and summon has been sent by registered post on a correct address, then a presumption will be that service is sufficient and to prove otherwise, it is the duty of the addressee to prove that service was not sufficient and burden will be upon him to examine a postman regarding sufficiency of service. Admittedly petitioner has not taken any step to examine the postman neither the servant who has told the postman that petitioner is out of station, has been examined. Mere denial by petitionertenant is not sufficient that service upon tenant was not made.

In my opinion finding recorded by the court below is a finding of fact based on relevant evidence, needs no interference by this Court. The writ petition is hereby dismissed, however, without imposing any cost.

At the last, learned counsel appearing for petitioner submits that some reasonable time may be granted to vacate the said premises. It is provided that in case, petitioner moves an application within three weeks supported by an affidavit in the shape of undertaking before the court below specifically mentioned therein that immediately after expiry of period of six months from today, he will vacate the said premises and will handover peaceful possession to respondentlandlord without inducting any third person, then in that case, court below after due satisfaction will grant six months time from today. It is also made clear that petitioner tenant will pay the rent of six months from today to respondent landlord before vacation of the said premises.

(Petition dismissed)