ABDULLA Vs. ADJ/SPECIAL JUDGE JYOTIBA PHULE NAGAR

JUDGEMENT

(1.) Heard learned Counsel for the petitioner and learned Counsel for the respondent. Petitioner before this Court is the tenant of disputed shop more appropriately described in the plaint of the suit filed for eviction of the tenant being SCC Suit No. 11 of 2002. In the plaint allegation, it was stated that the shop in question is adjacent to house of the petitioner-tenant and that the tenant wanted to open a door for connecting the shop with his residential house. This was not only illegal but shall also cause damage to the property. Other allegations qua default in payment of rent and taxes i.e., house and water tax were also made against the tenant. Petitioner contested the said proceedings and it was stated that there has absolutely no change in the structure of the shop and there was no attempt to open any new door, the shop continues in same status as it existed at the time as it was let out to the petitioner. It was further stated that there was no material alteration, which may diminish the value of the shop and lastly that there has been no default in payment of rent so as to justify filing of the suit proceedings. During the pendency of the said suit, before the Judge, Small Causes Court, application was filed for appointment of Court Commissioner. Such appointment of the Court Commissioner was got delayed on repeated applications being made by the tenant and ultimately the Court Commissioner visited the shop in question. In his report, it was specifically recorded that a door had been opened towards the residential house of the tenant so as to provide ingress and outgress directly from the shop to his house and further that the building material was still lying at the place of construction.

(2.) So for as the issue of default of payment of rent is concerned, it was contended that the petitioner was liable to be paid house tax, water tax in addition of rent agreed upon between the parties. Admittedly the petitioner-tenant has failed to pay such water and house tax and therefore, default in payment was established on record.

(3.) The Prescribed Authority vide order dated 16th July, 2008, after considering the report of the Court Commissioner and the statements made by the plaintiff's witnesses Nos. 1 to 3 in comparison to the statements made by the Defence Witnesses recorded a categorical finding that at the time the shop was let out to the petitioner there was no door from which, ingress and outgress could be made directly from the shop in question to the residential house of the petitioner-tenant. Opening of the door has taken place after the institution of the suit. Reference was also made to the categorical statements made by the Plaintiff's witnesses, which amongst others specifically stated that at the time the shop in question was let out to the tenant, there was no door connecting the house of the tenant to the shop. Evidence led by the petitioner has not been believed in preference to that led by the plaintiff. The Prescribed Authority has therefore, recorded a finding that there has been material alterations in the shop which has diminished its value and utility. Similarly in respect of default committed in payment of house tax and water tax along with rent, a finding has been recorded that the defendant was under legal obligation to deposit such taxes along with rent in view of specific language of section 20(4) of Act 13 of 1972 read with Order XV, Rule 5(2) of the Code of Civil Procedure. The suit was therefore, decreed and the petitioner-defendant was directed to be evicted from the shop in question.