MOHAMMAD ASLAM Vs. OM PRAKASH DWIVEDI

JUDGEMENT

(1.) Heard Sri Iqbal Ahmad, learned counsel for the petitioner and Sri K.K. Tripathi for the respondent.

(2.) The petitioner is a tenant in shop in dispute. Respondent-landlord instituted SCC Suit No. 6/1996 for arrears of rent and eviction of the petitioner on the ground that he was in arrears of rent since 1994. It was alleged in the plaint that the shop was constructed in the year 1988-89 and therefore the provisions of U.P. Act No. XIII of 1972 (for short the "Act") are not attracted. The petitioner contested the suit by filing written statement. It was pleaded that the shop in dispute is covered under the Provisions of the Act and that entire amount has been deposited under Order 15, Rule 5 C.P.C. In support of the said allegation, the petitioner filed a copy of the registration of the shop in dispute under the Provisions of Uttar Pradesh Dukan Aur Vanijya Adhisthan Adhiniyam, 1962 issued in the year 1983. The respondent-landlord though did not file any assessment record of the local authority which would have conclusively gone to establish the applicability of the Act instead he filed a certificate dated 28.7.1998 issued by the Executive Officer, Nagar Parishad, Bilhaur, Kanpur Nagar showing that the shop was assessed for the purposes of tax in the year 1989. The trial court vide order dated 18.8.1998 held that the provisions of the Act are not applicable and that the petitioner is in arrears of rent and decreed the suit. Aggrieved, the petitioner filed a revision. At the revisional stage, the respondent-landlord filed a photo copy of "Register Wajibul Usool House Tax and Water Tax" to support the allegations that the shop in dispute was assessed for the first time in 1989 as such is outside the purview of the Act. The Revisional Court also confirmed the finding of the trial court that the provisions of the Act are not applicable to the shop in dispute and dismissed the revision.

(3.) Learned counsel appearing for the petitioner has contended that the burden to prove that building is not covered under the Provisions of the Act lies on the landlord but the courts below have wrongly shifted the said burden on the tenant-petitioner. It has further been contended that the trial court wrongly placed reliance upon oral evidence to record a finding that building was not covered under the Provisions of the Act as under explanation (1) of sub-section (2) of Section 2 of the Act , the municipal records pertaining to first assessment of the building would have been conclusive proof of the fact which were not filed by the landlord. It has also been pointed out that the trial court though held that the certificate produced by respondent-landlord from Nagar Parishad cannot be read in evidence as it was not proved in accordance with law but still relied upon the same. Similarly, the revisional court has also wrongly relied upon the Register Wajibul Usool House Tax and Water Tax to record a finding with regard to the completion of the construction of building as it was not a record relating to first assessment.