MOHAMMAD NASIR Vs. DISTRICT JUDGE NAINITAL

JUDGEMENT

(1.) This is tenants petition for issuing a writ of certiorari to quash the order dated 1.10.1996 passed by the Judge, Small Cause Court, respondent No. 2 and the order dated 25.5.1998 passed by respondent No. 1 dismissing the petitioner's revision filed against the decree of the trial court.

(2.) The dispute is in relation to a shop situate in Mohalla Ganj. Kashipur, district Udham Sing Nagar (Nainital). The respondent No. 3, landlord filed suil for recovery of rent and ejectment against the petitioner alleging that the shop in question was not governed by the provisions of U. P. Act No. XIII of 1972, hereinafter referred to as the Act and the petitioner has been tenant of the said shop on monthly rent of Rs. 500 per month. The rent from 1,6.1994 to 31.10.1994 was not paid despite several requests. The tenancy of the defendant was terminated by a notice served upon him under Section 106 of the Transfer of Property Act on 10.10.1994 and when the notice was not complied with, the present suit was instituted. The defendant petitioner contested the suit. It was not disputed that he has been in occupation as tenant of the landlord. The rate of rent was also not disputed. However, according to the defence, since the shop was constructed in the year. 1980. the Act was applicable. The petitioner further pleaded that after the receipt of the notice of the plaintiff, he paid to him a sum of Rs. 3,500 which included rent from 1.6.1994 to 31.10.1994 and advance rent of October, 1995 but the plaintiff did not issue any receipt. The defendant further claimed protection of Section 20 (4) of the Act as the requisite deposit had been made in Court under the provisions of the said sub-section.

(3.) The trial court decreed the suit of respondent No. 3 landlord holding that the shop in question was assessed for the first time in the year 1988-89, hence it was out of the purview of the Act as the suit was filed in the year, 1994 before the expiry of a period of ten years from the date of construction. It further came to the conclusion that rent was due from 1.6.1994 and disbelieved the defence plea of payment of Rs. 8,500. The notice under Section 106 of the T. P. Act was found to be duly served and since the Act was not applicable no benefit of the provisions of Section 20 (4) of the Act could be availed of.