ASHOK KUMAR ANAND Vs. KISHAN PAL SINGH

JUDGEMENT

(1.) BY means of this writ petition petitioner - tenant challenges the order passed by the trial Court whereby the suit for eviction filed by the respondent -landlord has been decreed. Aggrieved thereby the petitioner -tenant preferred a revision under Section 25 of the UP. Provincial Small Cause Courts Act, 1887 which was dismissed by the revisional Court affirming the order of the trial Court.

(2.) THE facts leading to filing of the writ petition are that the respondent -landlord filed a suit after determining the tenancy of the petitioner -tenant on the ground that the petitioner is the tenant of the accommodation in question, which is non -residential accommodation at the rent of Rs. 600/ - per month and Rs. 50/ - per month as electricity charges. Since the tenant has not paid the rent with effect from 5 -3 -1996. his tenancy has been terminated by notice dated 4 -9 -1998. Thereafter the suit was filed. It has been specifically pleaded that the building in which the accommodation in question is situated, was constructed by U.P. Awas Vikas Parishad and allotted to the respondent -landlord on 12 -6 -1984 and handed over to the respondent -landlord by U.P. Awas Vikas Parishad on 18 -8 -1984. On the basis of the aforesaid facts the tenant has taken up the plea that in view of the provisions of U.P. Act No. 13 of 1972 building will come within the purview of U.P. Act No. 13 of 1972 only after ten years of the completion of its construction, therefore, the provisions of U.P. Act No. 13 of 1972 are applicable to the tenancy in dispute. The landlord denied the aforesaid allegations and specifically pleaded that according to Section 2 (1) proviso U.P. Act No. 13 of 1972 will not apply as the price payable by the landlord to the Parishad was in installments within 15 years, therefore, according to the landlord the Act will not apply from the date of handing over the possession for a period of 15 years in terms of the proviso to Section 2 of the Act which is reproduced below:

(3.) LEARNED counsel for the petitioner has relied upon as he has relied upon before the revisional Court the case reported in 2005(1) JCLR 180 (SC) : AIR 2003 4548; R.V.E. Venkatsachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another, wherein according to the counsel for petitioner on account maintained in the regular course of business and entries there in cannot be disbelieved on the ground that the person who has entered the entries, has not been produced. The revisional Court has given its reasons for not accepting the aforesaid document to the effect that the law laid down by the Apex Court is not disputed but in the very decision itself, the Apex Court has ruled that wherein the revisional Court has held even assuming that the said evidence could not have been rejected, the same was with regard to the rate of rent and if the reason given by the trial Court is admitted, then the position in law cannot be as if there is no evidence, on the basis of which, the trial Court has arrived at the rate of rent, therefore, the revisional Court has ventured into after the assessment of the evidence and the law laid down by this Court reported in 2001 (2) ARC 316; Ali Hasan Shaifi v. Satish Kumar and after looking into the entries and after considering the evidence including the entries arrived at the conclusion that in view of the pleadings of the respective parties the case of the tenant that the rent was Rs. 300/ - per month, cannot be accepted in view of the evidence of PW 2 who also supported the version of the landlord that the rent was Rs. 600/ -per month, which has been disputed by the tenant. The revisional Court has relied upon a Full Bench decision of this Court reported in 2000(2) JCLR 375 (All) (FB) : 2000 (1) ARC 653, Gokaran Singh v. Additional District and Sessions Judge, Hardoi and others, wherein the Full Bench ruled that initially the burden of proving the rent is only the landlord and when the landlord discharges his burden by producing the evidence then the burden is shifted on the tenant to prove his version. The revisional Court therefore, relied upon the witness of PW 2 who is plaintiffs witness and when the revisional Court comes to the conclusion that the rent was Rs. 600/ - per month, this finding is unassailable.