RASHID Vs. KAILASH CHAND

JUDGEMENT

(1.) This is a defendants Civil Revision under Section 25 of the U.P. Provincial Small Causes Court Act 1887 against the order dated 16.08.2011 passed in SCC Suit No. 11 of 2009 (Kailash Chand Vs Rashid) by the Additional District Judge, Court no. 12 Bulandshahar whereby the suit has been decreed for ejectment and damages for use and occupation.

(2.) According to Sri Udayan Nandan learned counsel for the revisionist the opposite party plaintiff is owner and landlord of Shop No. 242/4 Mohalla Deputyganj Gali, Post Office, Bulandshahar and the revisionist is a tenant since 01.05.1996 wherefore a lease deed dated 17.05.1996 was executed between the revisionist and the wife of the plaintiff who was owner and landlord at that time. The lease provided that the rent of the shop would be Rs. 600.00p per month with a stipulation of 25% increase after expiry of five years of tenancy. The lease deed mentioned the purpose for which the shop was let out and it was for business of cloth and shoes but the purpose could be changed with the written consent of the landlord. The wife of the plaintiff died on 29.03.2005 hence by virtue of the will dated 20.01.2004 the plaintiff became owner and landlord of the shop and started receiving the rent from the revisionist.

(3.) The plaintiff filed the instant suit for a decree of ejectment of the defendant from the shop including any other person who may be found at the shop and for a decree of Rs. 43,593.75p rent and damages for use and occupation against the defendant including future damages at the rate of rent. The plaint allegations were that the defendant was not doing any business in the shop but was doing business in Delhi and was living in Delhi. He had sub-let the shop to his brother namely Adil who was doing the business of re-filling of gas cylinders etc. A Suit No. 299 of 2005 (Rashid Khan Vs Kailash Chand) was filed by tenant in the court of Civil Judge (Junior Division) Bulandshahar for permanent injunction against the owner landlord (Kailash Chand) which was decreed on 14.12.2006 but on an Appeal No. 208 of 2006 (Kailash Chand Vs Rashid Khan) the decree of the Trial Court was set aside and the appeal was allowed on 13.02.2009 by the court of IX th Additional District Judge, Bulandshahar. A second appeal filed there against by Rashid Khan is pending. The plaintiff gave notice dated 28.04.2009 for arrears of defaulted rent of more than four months which was received on 01.05.2009 by Adil the brother of the tenant but no reply was given to the notice. The notice was to quit and the tenancy was terminated. The tenant neither paid the rent nor vacated the shop. The landlord claimed arrears of rent from 01.07.2005 to 30.04.2006 at the rate of Rs. 750/- per month and at the rate of Rs. 937.50p per month from 01.05.2006 upto date. He also claimed damages for use and occupation from 01.07.2009 to 15.07.2009 at the rate of Rs. 1,406.25p.