ANTRAM Vs. DISTRICT JUDGE AND ANR.

JUDGEMENT

(1.) HEARD learned Counsel for the petitioner and the learned Counsel for the respondents. Counter affidavit and rejoinder affidavits have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being decided at this stage itself. The petitioner who is a tenant has assailed the judgment and order dated 25.10.1999 passed in Revision No. 77 of 1998 by the Court of District Judge, Ghaziabad.

(2.) IT is contended that the respondent landlady filed a S.C.C. Suit No. 73 of 1990 in the Court of Judge Small Causes for eviction of the petitioner and for recovery of rent. The Trial Court did not believe the evidence led by the landlady to show that the shop was newly constructed in the year 1981 and its first assessment was done in the year 1987. It recorded its finding to the effect that the landlady's evidence was self contradictory and she had not been able to establish that the provisions of U.P. Act No. 13 of 1972 were not applicable to the shop. However, surprisingly after recording the said finding the Trial Court has concluded that the Act is not applicable. Such conclusion appears to be an error on the face of record by incorporating the word by hand in the fourth line from the end of the judgment. This is more so because the Trial Court has thereafter recorded that the tenant was not in arrears of rent for more than four months and hence the landlady cannot claim the ground under section 20(2)(a) for eviction the tenant. It has, therefore, proceeded to dismiss the suit.

(3.) LEARNED Counsel for the petitioner has contended that the aforesaid finding of the Revisional Court is erroneous on two grounds, firstly that notice dated 19.3.1986 upon which the Revisional Court has placed reliance is not a notice of first assessment but is a notice with respect to enhancement of assessment. The second ground argued by the learned Counsel for the petitioner is that the landlord has not proved on record that the shop in question was constructed within ten years of filing of the suit. He has also referred to the rent receipts filed as Annexures 6 and 7 to the writ petition to indicate that the shop in question was earlier in the tenancy of his father much before 1981 therefore, his contention is that the provisions of Act were fully applicable to the instant case. It is his case that the Revisional Court in exercise of its jurisdiction under section 25 Provincial Small Causes Court Act could not have reappraised the evidence while setting aside the finding of the Trial Court to substitute its own finding for that of the Trial Court.