MANOJ KUMAR SHUKLA Vs. USMAN NAQVI

JUDGEMENT

(1.) This revision has been filed against the judgment and order dated 7.9.2010 passed by the Judge, SCC/Additional District Judge, Court No. 1, Lakhimpur Kheri.

(2.) The facts giving rise to the present revision are that Plaintiff Usman Naqvi being a blind person and also incapable of protecting his right and interest by reason of unsoundness of mind and mental infirmity filed a suit through his next friend Shahnawaj Naqvi his father. Usman Naqvi proceeded to let out his shop to revisionist-Defendant in the year 1996 on a monthly rent of Rs. 1200/-. The said shop was given on rent by Shahnawaj Naqvi on behalf of Usman Naqvi and Shahnawaj Naqvi has been receiving the rent of the said shop. The shop was initially taken on rent for a period of one year and thereafter it was not vacated although the revisionist was required to vacate the shop in the month of September, 1997. A Suit was filed by the revisionist against the Respondent in respect of the claim of Rs. 20,000/-being taken by the Respondent as advance although it is stated that the said advance was never taken in any form by the Respondent. The shop was taken on rent for store purposes, but the revisionist started using it as a retailed shop to sell the food materials. A registered notice was sent to the revisionist on 10.12.2002 through his counsel, which was served on the revisionist on 13.12.2002 by means of which the tenancy of the revisionist was terminated after one month of the receipt of the notice and arrears of rent were also demanded, but despite the said notice revisionist did not pay the rent and neither vacated the shop in question. The shop in question is a newly constructed shop and the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short 'U.P. Act No. 13 of 1972') do not apply on it. During the pendency of the Suit, Plaintiff Usman Naqvi died and Shahnawaj Naqvi being the legal heir of Usman Naqvi was impleaded as party in the Suit. The actual rent due against the revisionist from October, 1997 to 13th January 2003 was to the tune of Rs. 76,100/-, but in the Suit the rent for only three years was claimed along with damages to the tune of Rs. 43,200/-.

(3.) Written statement was filed by the revisionist denying the allegations made in the Suit and it was stated that the Suit is barred by the provisions of Order 32, Rule 15Code of Civil Procedure as the Plaintiff is blind, but he is not mentally infirm and no inquiry as contemplated under law has been held in respect of the provisions contained under Order 32, Rule 15Code of Civil Procedure . The acceptance of notice and payment of rent were also denied. It was also stated in the additional plea that Respondent resides in Kanpur City and he is unable to see, therefore, he gave shops No. 8, 9 and 10 on rent received by him on allotment. The Plaintiff-Respondent had given the disputed shop No. 8 to the revisionist in the month of May, 1997 on monthly rent of Rs. 1200/-on rent and at the time of giving the shop on rent Plaintiff had accepted Rs. 30,000/-as advance from the revisionist and has promised that this amount shall remain deposited with the Respondent as security money and as and when the shop would be vacated by the revisionist the Respondent will return the said amount to the revisionist. It was also pleaded that in case the Respondent will not be able to return the amount, he will adjust the same in the rent. However, no receipt was given to the revisionist by the Respondent in regard to amount of Rs. 30,000/-in spite of demand being made by the revisionist. The Respondent has never given any receipt of rent to the revisionist. The Respondent has given shop Nos. 9 and 10 to other tenants, but he does not give any receipt to the aforesaid tenants also. The revisionist has started his business in the disputed shop in the name of Deepak Brothers of food materials after taking it on rent. He has also obtained licence regarding his business. Respondent has got no need of the shop as he does not reside in Lakhimpur Kheri nor he has any business in Lakhimpur Kheri and apart from the aforesaid fact he is a blind person and is unable to carry on any business. The Respondent wants to get the disputed shop vacated from the revisionist so that he may let it out to another person on higher rent. In the month of July, 2002 Respondent came to Lakhimpur Kheri and asked the revisionist to vacate the shop in dispute and when the revisionist showed his inability to vacate the shop, then he was threatened by the Respondent that he will get the shop vacated through police and antisocial elements. Thereafter, he filed Suit No. 210 of 2002 before the Civil Judge (Senior Division), Lakhimpur Kheri, which was decreed on 23.4.2005. The revisionist has been paying rent of the disputed shop till June, 2002. After filing of Suit No. 210 of 2002 Respondent stopped realising rent from the revisionist. The Respondent received an amount of Rs. 21,600/-towards arrears of rent along with interest on 6.11.2003 and gave receipt of it. During the pendency of the Suit the Respondent has been receiving the rent regularly from the revisionist.