SHAHNAZ Vs. JUDGE SMALL CAUSES COURT

JUDGEMENT

(1.) This writ petition by the petitioner-tenant under Article 226 of the Constitution of India challenge the orders passed by the Judge Small Causes Court dated 21.11.2000, whereby the suit filed by the respondent, namely Small Causes Suit No. 113 of 1999 has been decreed for the arrears of rent, damages, eviction of the petitioner and the order passed by the revisional court dated 6.9.2002, whereby the revisional court dismissed the revision filed by the petitioner-tenant under Section 25 of the Provincial Small Cause Courts Act.

(2.) The brief facts are that the respondent-landlord filed suit in question being Suit No. 117 of 2000, Waqf Masjid v. Smt. Shahnaz, on the ground that defendant-petitioner is the tenant at the rate of Rs. 8 of House No. 38/41, Mohalla Katla, Meerut City and the plaintiff-respondent is the owner and landlord of the said premises. It is further submitted that the plaintiff is a waqf registered with the Sunni Central Board, Lucknow at No. 527/357, that the plaintiffs case is that since the house in question is owned by a waqf , therefore, the provisions of U.P. Act No. 13 of 1972 are not applicable to the premises in dispute. The plaintiff served a notice under Section 106 of Transfer of Property Act dated 29.5.1999, which was served on respondent on 3.6.1999 to the effect that after expiry of aforesaid period of notice the petitioner should vacate the premises in question and also pay arrears of rent. In spite of period granted by the notice has expired the defendant has neither paid the rent nor vacated the premises. On the contrary has given a reply to the notice on baseless ground. Thus, the suit.

(3.) Before the trial court the plaintiff and defendant exchanged their pleadings and adduced their evidence. The trial court on the basis of pleadings of the parties has framed points for decision in the case. Firstly, whether the provisions of U.P. Act No. 13 of 1972 (In short 'the Act') after the amendment of Section 2(1)(bbb) provides that the provisions of the Act would not apply to the premises in dispute because the premises is owned by a waqf-alal-aulad, secondly whether the notice terminating the tenancy has been duly served on the defendant or not and thirdly, the defendant is in arrears of rent or not. The trial court found that after the amendment of Section 2(1) of U.P. Act No. 13 of 1972 in the year 1994 whereby provision (bbb) has been introduced which provides exemption from the operation of 'the Act' to the building owned by public charitable trust. To the aforesaid case of the plaintiff the defendant's case was that since the building is pre 1994 construction to which the provisions of U.P. Act No. 13 of 1972 were applicable. The amended provision of Section 2 of the Act will not be attracted unless specifically given retrospective effect to the provisions of the amending Act. Amending Act has not been given retrospective effect, therefore, the premises cannot be said to be exempted from the provisions of U.P. Act No. 13 of 1972. The trial court decided the aforesaid point against the defendant and held that since the suit has been filed after 1994 and at the time of filing of the suit the amending Act was in force it will apply to the accommodation in dispute and, therefore, the building in dispute is exempted from the operation of 'the Act'. On the question of notice the trial court recorded a finding that notice under Section 106 was duly served on the defendant but the defendant has not complied the notice and the suit was filed. The trial court also recorded a finding against the defendant on the question of defendant being in default. Thus, the trial court decreed the suit on all counts and directed the defendant to give possession of the accommodation in dispute to the plaintiff within sixty days falling which it will be open to the plaintiff to get the decree executed.