O.P. CHOPRA Vs. SMT. SURJIT KAUR

JUDGEMENT

(1.) This is a defendants revision application directed against the judgments and decrees of the trial court and the District Judge dismissing the defendants revision.

(2.) Smt. Surjit Kaur, plaintiff-opposite party, filed a suit for recovery of arrears of rent and eviction against the defendant-applicant. During the pendency of the suit before the trial court the defendant claimed the benefit of Sections 20 (4) and 39 of U. P. Act XIII of 1972. The trial Court framed an issue on the question as to whether U. P. Act XIII of 1972 was applicable to the building in question. It held that the building in question was not subject to the provisions of the said Act as ten years had not expired from the date of completion of the building. It decreed the plaintiffs suit. The defendant took the matter in revision before the district Judge under Sec. 25 of the Small Cause Courts Act. The learned District Judge dismissed the revision and affirmed the trial courts decree. Hence this revision application by the defendant.

(3.) Learned counsel for the defendant-applicant urged that both the courts below acted with illegality and committed patent error of law in determining the date of completion of the building. I find force in this contention. Sec. 20 (4) of the U. P. Act XIII of 1972 protects a tenant from eviction if he tenders to the landlord or deposits in court the entire amount of damages for use and occupation of building in occupation before the first date of hearing together with interest at the rate of 9% and the costs of the suit. In the instant case the courts below held that the Act was not applicable to the building as ten years had not expired from the date of completion of the building. The legislature has laid down procedure for determining the date of completion of a building. Explanation to Sec. 2 (2) of the 1972 Act lays down that the date of completion of the construction of a building is to be determined on the basis of three factors. Firstly, the building is deemed to have been completed on the date on which the completion thereof is reported to the local authority having jurisdiction or the date on which the local authority may have otherwise recorded the completion of the building. Secondly, the date of construction of the building shall be deemed to be the date on which the first assessment comes into effect. If there is difference between the various dates of completion of the building, then the date on which the building Is actually occupied for the first time shall be the date of completion of the construction of the building. However, the date of first occupation cannot be taken into account unless there is difference between the date of reporting and recording of completion of building by the local authority and the date of commencement of the first assessment. It is therefore, necessary at first to find out the date of report relating to completion of the building to the local authority and the date on which the local authority may have otherwise recorded the completion of the building. In the absence of these dates the court has to ascertain as to on what date the first assessment came into effect. If the court fails to find out any of these dates or if there is difference in these dates only thereafter the actual date of occupation of the building for the first time would be relevant to determine the date of completion of the building. But if the first two dates are not available and the building is not subject to assessment (There may be no house tax or water tax in the town) then it would be permissible to determine the date of completion of the building on the basis of the date when it may have been occupied first after construction. Since the legislature has laid down principles under Explanation to Sec. 2 (2) of the Act, it is not open to the courts to determine the date of completion of the construction of the building on the basis of some other kind of evidence, e. g. account books, bills relating to purchase of building material etc. Such evidence would not be relevant material as the legislature has created a legal fiction and declared the dates which could only be taken into account in determining the question.