NARENDRA KUMAR Vs. RAMESHWAR DAYAL

JUDGEMENT

(1.) This is tenant's writ petition. Landlord respondent filed a suit for ejectment against tenant petitioner being SCC Suit No. 128 of 1998 on the file of JSCC Court No. 12, Saharanpur. In the suit, it was alleged that building was constructed in the year 1987 and was assessed for the first time in April 1987. It was also pleaded that tenant-petitioner for the first time occupied the premises in dispute in the year 1987. The suit was preceded by a notice of termination of tenancy under Sec. 106 of Transfer of Property Act, dated 17th January, 1998. Admittedly when the notice was given tenant was defaulter of only one-month rent. The said rent had also been remitted by him through money order. Prior to the date of termination of tenancy landlord had accepted rent. Trial Court holding that as the building in dispute was constructed in the year 1987, hence Rent Control Act was not applicable decreed the suit through judgment and decree dated 9th Feb., 2004. Tenant-petitioner filed a revision against the said judgment and decree of JSCC under Sec. 25 of PSCC Act being SCC Revision No. 2 of 2004. District Judge, Saharanpur through judgment and order dated 25th March, 2004, dismissed the revision, hence this writ petition.

(2.) The first point argued by learned Counsel for the petitioner is that burden to prove exemption from application of Rent Control actually upon the landlord and mere filing of extract of house tax assessment cannot be taken to be a valid discharge of that burden. I do not agree with the contention of learned Counsel for the petitioner. Landlord filed extract of house tax assessment showing the assessment from April 1987. If the building in dispute was earlier also assessed to house tax, tenant petitioner could very well file similar extract of house tax for previous years, which he did not do. Apart from that, tenant-petitioner did not deny the allegation of the landlord regarding year of completion of construction i.e., 1987. Tenant did not give any specific date, month or year of completion of construction. In view of these facts, the Courts below did not commit any error in holding that the building in dispute was constructed in the year 1987.

(3.) The second point argued by learned Counsel for the petitioner is that by accepting the rent in the month of Jan. 1998 landlord waived the notice (dated 17 Jan., 1998) in view of Sec. 113 of Transfer of Property Act particularly illustration appended thereto. This argument is also not correct. Notice stands waived only if rent for the period subsequent to the expiry of the period of notice is accepted by the landlord. In the instant case there is no allegation that rent for the period after one month from receipt of notice was accepted by the landlord. Depositing the rent for the subsequent period in Court can by no stretch of imagination be said to waiver of notice.