HAJI BABU KHAN Vs. KHALIK MOHAMMAD

JUDGEMENT

(1.) The present revision has been filed under section 25 of the Provincial Small Causes Courts Act, 1887 by the plaintiff of S.C.C. Suit No. 11 of 1999. The said suit was instituted on the pleas inter alia that the plaintiff is owner and landlord of House No. 11/744, situate at Turkman Gate, Aligarh. The defendant is tenant of shop No. 2 situate in the said building on monthly rent of Rs. 1,200/- and Rs. 240/- towards water tax and house tax, total monthly rent was Rs. 1,440/-. The shop in question is a "new construction" within the meaning of U.P. Act No. 13 of 1972. It was assessed for the first time with effect from 1st April, 1988. The property in dispute was purchased by the plaintiff by means of a sale-deed dated 8th October, 1979. He applied for permission to Aligarh Development Authority to raise "new construction" in place of existing construction. The proposed map of the new construction was sanctioned on 11th June, 1984 and the permission was granted on 12th June, 1984 with the rider that the construction should be raised within a period of three years. Due to paucity of funds, the plaintiff apprehended that he will not be able to complete the construction within the aforesaid period. Therefore, on 3rd March, 1986, he applied for extension of time which was granted. The shop in dispute was let out to the defendant through a rent note dated 27th February, 1998. The defendant tenant is in arrears of rent since 1st April, 1998 and the tenancy was determined by means of notice dated 31st May, 1999 which was served by refusal on 10th June, 1999. The suit was instituted by presenting a plaint on 4th October, 1999 and claimed as decree towards recovery of arrears of rent, damages and ejectment. It was also pleaded that the shop in dispute was constructed in the year 1986 and the first assessment being 1st April, 1988, the provisions of U.P. Act No. 13 of 1972 are not applicable as the building is exempt for a period of 40 years with effect from 1st April, 1988. The suit was contested by denying the plaint allegations on the pleas inter alia that the rate of rent was Rs. 600/- inclusive of all the taxes. The building in question is old construction of the year 1975 and the provisions of U.P. Act No. 13 of 1972 are applicable. It was further pleaded that the defendant tenant is not in arrears of rent and he has paid the rent upto 31st October, 2000. Rent for the subsequent period has been deposited in the Court. Rent receipts were not issued by the landlord.

(2.) The Trial Court framed as many as six points for determination in the suit. It has been found that the provisions of U.P. Act No. 13 of 1972 are applicable, the rate of rent is Rs. 600/- per month, service of notice on the defendant tenant is valid and the defendant tenant has paid rent upto 31st October, 2000 as pleaded by him and the suit was dismissed vide judgment and decree dated 18th December, 2006. Challenging the aforesaid judgment and decree passed by the Trial Court, learned Counsel for the plaintiff landlord (hereinafter referred to as the "landlord") submits that the findings recorded by the Trial Court are perverse, illegal and against the material on record. The Trial Court on irrelevant considerations in the face of the documentary evidence has arbitrarily rejected the plea of the landlord that the shop in question is a "new construction". There is voluminous evidence in the shape of sanctioned map and the sanction order passed by the Aligarh Development Authority. The veracity of validity of those documents have not been disputed. The finding recorded by the Trial Court on point No. 1 deserves reversal. Questioning the legality and validity of the findings recorded by the Trial Court with regard to rate of rent and default, it was submitted that the finding of the Trial Court is not based upon correct appreciation of evidence as same is based on irrelevant considerations.

(3.) Shri Divakar Rai Sharma, appeared at the time of hearing of the revision who submits that he has no instruction in the matter as the defendant tenant has taken away the file from him. Any other Counsel on behalf of the defendant tenant is not present. This left the Court to proceed with the hearing of the revision ex parte.