High Court set aside impugned judgment in landlord's suit for eviction and rent recovery. Matter remitted to trial court to afresh decide applicability of U.P. Act No. 13 of 1972 and other issues after permitting fresh evidence.
Impugned judgment dated 19.10.2018 set aside; matter remitted to trial court for fresh consideration.
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Court No. - 19
Case :- S.C.C. REVISION No. - 158 of 2018
Revisionist :- Rakesh Jain Manchala Opposite Party :- Virendra Kumar Sharma Counsel for Revisionist :- Raj Kumar Kesari
Hon'ble Manoj Kumar Gupta,J.
The instant revision is directed against the judgement and decree dated 29.10.2018 passed by District Judge, Hapur decreeing SCC Suit No. 3 of 2016 filed by the respondent/landlord for recovery of arrears of rent and for eviction.
The plaintiff/respondent instituted the suit on the ground that revisionist, who is tenant of a shop on his behalf, had defaulted in payment of rent since 1.1.2007. According to him, rent of premises initially was Rs.180/per month, which was enhanced to Rs.500/- per month since November 2006 with mutual consent. The revisionist was alleged to be tenant since the year 1998. By notice dated 26/27.11.2015, the tenancy was terminated and arrears of rent was demanded but since it was not paid therefore, suit was filed. It was the specific case of the landlord that U.P. Act no.13 of 1972 was not applicable, as the building was constructed in the year 1987, after getting a map sanctioned from the Executive Officer, Nagar Palika Parishad, Pilkhua on 16.2.1987.
The revisionist contested the suit by pleading that tenancy started since the year 1983 and the rate of rent was Rs.30/- per month. According to him, rent upto December 2015 was duly paid and thereafter he remitted the rent by money order.
The trial court, while deciding the issue relating to rate of rent observed that there is no convincing evidence on record to accept the contention either of plaintiff or defendant but relying on a house tax receipt, the trial
court held that rent of the premises was Rs.700/- per month. After making the said observation, the trial court abruptly accepted the case of the plaintiff and held that rent of the shop from 1998 onward was Rs.180/- per month and it was enhanced in January 2006 to Rs.500/- per month. The trial court also held that in the absence of any documentary evidence to prove that rent was tendered to the landlord by money order or against any rent receipt, the version of the tenant could not be accepted and accordingly held him to be a defaulter.
Counsel for the petitioner contended that once the trial court held that there was no convincing evidence on record to support the version of the plaintiff or that of the defendant, it was not justified in carving out a new case that rate of rent of the premises would be Rs.700/- per month and then in the same breath accepting the case of the plaintiff that rent was Rs.180/- per month, which was later enhanced to Rs.500/-.
He further submitted that the revisionist filed documentary evidence to establish that tenancy started in the year 1984 and the rate of rent was Rs.30/- per month but the documentary evidence was wrongly ignored from consideration on the ground that it was a photostat copy.
Sri S.P. Pandey assisted by Sri S. K. Mishra appearing on behalf of respondent/landlord submitted that the rent was remitted at the wrong address. However, he very fairly accepted that there was no evidence led by the landlord to prove that the rent of the premises was Rs.180/- per month. He submitted that there was a specific plea that U.P. Act No.13 of 1972 was not applicable, therefore, if his case is accepted, then even if there is no default in payment of rent, the suit for eviction could be decreed. He submitted that the trial court erred in not recording any finding in this respect.
After some argument, counsel for the parties agreed that the impugned
judgement be set aside and the matter be remitted to the trial court for consideration of the issue relating to applicability of U.P. Act No.13 of 1972 and all other issues afresh after permitting the parties to lead evidence.
Accordingly, the impugned judgement dated 19.10.2018 is set aside. The matter is remitted back to the trial court for deciding the suit afresh. The trial court, while deciding the suit, shall specifically decide the question as to whether U.P. Act No.13 of 1972 is applicable to the building or not. The trial court shall make endeavour to decide the suit expeditiously without granting unnecessary adjournments to the parties.
It shall be open to the parties to lead evidence in support of their respective cases and all rights and contentions are left open for being considered by the trial court without being influenced by any observations made in the instant order.
The revision accordingly succeeds to the extent indicated above.
Order Date :- 7.12.2018
skv
2 issues framed by the court
Whether the High Court was justified in setting aside the lower court's judgment without determining the applicability of U.P. Act No. 13 of 1972.
Whether the trial court erred in maintaining the judgment without deciding the question of applicability of U.P. Act No. 13 of 1972.
1 provisions across 1 enactments
Rakesh Jain Manchala
Virendra Kumar Sharma
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
