Sarvjeet Agarwal vs Arun Kumar and Another

Hon''ble Prakash Krishna, J.

Ref: Civil Misc. Restoration Application No. 295868 of 2010

Heard the learned counsel for the parties.

Cause shown is sufficient.

The order dated 21.9.2010 dismissing the civil revision in default is recalled.

The civil revision is restored to its original number.

Ref: Civil Revision No. 198 of 2001

The present revision has been filed u/s 25 of the Provincial Small Causes Court Act against the judgment and decree dated 13.03.2001 passed by IIIrd Additional District Judge, Varanasi in S.C.C. Suit No. 3 of 1994. The court below has decreed the suit for ejectment of the defendant-tenant from premises No. 20/1-68, Ramakant Nagar, Pishachmochan, Varanasi and also for recovery of arrears of rent, damages, electric charges etc.

The aforestated suit was instituted on the pleas inter alia that the plaintiffs is the owner and landlord of House No. 20/1-68, Ramakant Nagar, Pishachmochan, Varanasi. The said house was assessed by the municipal authorities for the purposes of tax with effect from 1st October, 1987. The building in question is a "new construction" within the meaning of provisions of U.P. Act No. 13 of 1972 and as such the provisions of U.P. Act No. 13 of 1972 are not applicable. It was let out to the defendant-tenant on monthly rent of Rs.800/-. The defendant has failed to pay the rent and is in arrears since August, 1989. He has also failed to pay the electric charges etc.

A registered notice was given asking him to make the payment but invain. To pressurize the plaintiffs, the defendants-tenant got a false first information report lodged against them. Tenancy has been terminated through notice dated 27th October, 1993.

In reply, the defendant-tenant came out with the case that he was tenant on monthly rent of Rs. 550/-. The house in question is an old construction and as such is governed by the provisions of U.P. Act No. 13 of 1972 and that he is not in arrears of rent or of electric charges. Benefit of Section 20 sub clause (4) of the Act was also claimed with the allegations that the entire amount has been deposited under the aforesaid provisions on the first date of hearing.

On the pleadings of the parties, as many as eight issues were framed. Parties led evidence in support of their respective cases. The trial court has found that the building in question was assessed by the municipal authorities in the year 1986 and the first assessment is 1st October, 1986. The suit was filed in the year 1994 i.e. within the holiday period of 10 years, the provisions of U.P. Act No. 13 of 1972 are not applicable. On other issues, it was found that the notice terminating the tenancy is valid. Rate of rent of Rs.800/- per month was which does not include the electric charges or water tax and that the defendant is in arrears of rent, electric charges and water tax since August, 1989.

Learned counsel for the applicant challenges the findings recorded by the trial court on issues no. 1 and 4 only. Contention of the learned counsel for the applicant is that the building in question was let out to him in the year 1984 and the court below was not justified in ignoring the defendant''s evidence and based its finding solely on the ground of first municipal assessment of the building in question. Elaborating the argument, it was submitted that that the defendant applied for telephone connection in the year 1985 and in this regard, reliance was placed on the application given to the Telecommunication Department.

The question which falls for determination is whether in this fact situation, the court below has committed any illegality in placing reliance upon the first municipal assessment. It is necessary to notice the relevant provisions as contained in U.P. Act No. 13 of 1972. Explanation-I to Section 2(2) of the Act which defines the date of construction reads as follows:

"Explanation I.-[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 or 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;

(b) "Construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;

(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the buidling including the existing building shall be deemed to be constructed on the date of completion of the said addition."

The aforesaid provision has been subject matter of consideration by the Apex Court on various occasions and it has been held that where a building is subject to assessment then it is the first municipal assessment which is relevant for consideration of question of date of construction. The judgment of the Apex court in Bishan Chand Vs. Vth Additional District Judge, Bulandshahr (Uttar Pradesh) and Another, , is the leading case wherein the Apex Court had an occasion to interpret the aforesaid provision after making its analysis. The relevant portion is reproduced below:

"6. As a second limb to the first argument, it is contended that the building will be deemed to have been constructed, on the date of occupation on 16th of June, 1067 and not on the (late of the first assessment, and that if this be so, the appellant would be entitled to the benefit of S. 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1976. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-sec. (2) of S. 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on. which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in 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 .............. for the first time. A perusal of Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction, and in that view of the matter the building had not become more than ten years'' old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of S. 39 of the Act to the appellant."

As against above, the learned counsel for the applicant could not place any material to take a different view of the matter. This disposes of the first question. Finding recorded by the trial court holding that the building in question is beyond purview of the provision of U.P. Act No. 13 of 972 is perfectly justified and is affirmed.

Now I take up the second point. The parties led evidence in support of their respective cases with regard to the rate of rent. The said point has been considered by the court below under issue no. 4. The plaintiffs examined themselves and they stated that the accommodation in dispute was let out to the defendant on monthly rent of Rs.800/- excluding water charges and electric charges. On the other hand, the defendant came out with the case that initially rate of rent was Rs.200/- per month which was enhanced to Rs.550/- per month. None of the parties could lead any documentary evidence. It was case of oath against oath. The trial court preferred to accept the testimony of the plaintiffs in this regard. Tenanted accommodation consists of three rooms, bathroom, latrine and open piece of land surrounded by boundary wall. The findings recorded by the trial court is based upon appraisal of evidence and cannot be said that the said finding is in any manner is perverse or against the material on record. The findings recorded by the trial court on the question of rate of rent is essentially findings of fact and does not call for any interference.

Any other point was not pressed.

At the end, learned counsel for the defendant-tenant seeks time to vacate the accommodation in question.

The defendant-tenant is granted time upto 31st August, 2012 to vacate the disputed accommodation subject to the following conditions:

(1) The defendant-tenant shall deposit the entire arrears of rent, damages, electric charges and water tax for its use and occupation, after adjusting the amount, if any, already deposited for the period upto 31st August, 2012 within a period of one month from today before trial court.

(2) Within one month, the defendant-tenant shall file an undertaking on affidavit before the trial court that he will vacate the disputed accommodation on or before 31st August, 2012 and shall hand over its peaceful vacant possession to the plaintiff landlord without creating any third party interest.

In case of default in compliance of any of the conditions stipulated above, the time granted shall stand vacated automatically.