Dismissed

Rajiv Kumar Gupta v. Sri Mohan Babu Agarwal and Another

Allahabad HC7 Dec 2021A227/6626/2021

Case brief

AI extract

What is this about?

High Court heard a tenant's writ petition under Article 227 Challenging eviction order based on rent arrears Court held building was new so restrictive Act not applicable Dismissed writ petition Allowed one year to vacate

What did the court decide?

Tenant granted one year to vacate shop upon depositing monthly rent and filing undertaking before the Court below.

Rajiv Kumar Gupta Vs Sri Mohan Babu Agarwal and Another — Landlord and Tenant | Allahabad HC (2021)

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Court No. - 4

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Case :- MATTERS UNDER ARTICLE 227 No. - 6626 of 2021

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Petitioner :- Rajiv Kumar Gupta Respondent :- Sri Mohan Babu Agarwal And Another Counsel for Petitioner :- S.S. Sharma,Rajiv Singh Counsel for Respondent :- Hans Nath Pandey,Ghanshyam Das Mishra,Sunil Kumar Shukla

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Hon'ble Rohit Ranjan Agarwal,J.

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Heard Sri S.S. Sharma, learned counsel for the petitioner and Sri (Dr.) G.S.D. Mishra, learned counsel for respondent No.1.

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This writ petition has been filed assailing the judgment and order dated 09.03.2018 passed by Judge Small Cause Court in S.C.C. Suit No.2 of 2014 and order dated 22.09.2021 passed by Additional District Judge, Court No.6, Aligarh in S.C.C. Revision No.16 of 2018 dismissing the same and upholding the order passed by Trial Court.

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With the consent of counsel for the parties, this matter is being heard and decided at the admission stage without calling for any counter affidavit.

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This is a tenant's petition. S.C.C. Suit No.2 of 2014 was filed by the defendant-respondent No.1 for ejectment of the tenant-petitioner on the ground of arrears of rent. The case of landlord-respondent was that a shop in question was let out to the tenant-petitioner on 12.4.2002 after execution of a rent agreement, wherein monthly rent was fixed at Rs.700/- per month with a condition of 20 percent increase in every three years. From 01.4.2014, the enhanced rent was Rs.1,440/-. The tenant-petitioner having committed default in payment of rent and did not deposit admitted amount of rent hence suit for arrears of rent and eviction was filed. The tenant -petitioner contested the suit and filed written statement admitting the fact that he was tenant of the shop in question since 12.4.2002 at a monthly rent of Rs.700/-. Rest of the contents were denied.

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The Trial Court framed following issues:

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"1. कययवववयवदतददकयनपरयय . पप . यय . बप . एकट 13 सन 1972 ककपयववधयनलयगय हहतकहह |

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2. कययवववयवदतददकयनकयपवतवयदपगणवकरयययअदयकरनकममवयवतकमपहहनककक कयरणवववयवदतददकयनसकबकदखलपवकयकजयनकयहगयहह | 3. कययपवतवयदपगणधयरय - 20 (4) यय . पप . यय . बप . एकट 13 सन 1972 कयलयभपयप करनकककअधधकयरपहह |

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4. अनदतहष ?"

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Issue no.1 was in regard to applicability of U.P. Act No.13 of 1972. The Trial Court recorded a categorical finding that landlord-respondent had purchased the shop No.14/7 through registered sale deed in the year 1993 after which a twostoreyed complex was constructed in the year 2000 and its assessment was made on 01.4.2005 as such in view of Section 2(2) Explanation (1)(c), the provisions of U.P. Act no.13 of 1972 were not applicable. Issues No.2 and 3 are in regard to the default in payment of rent and whether benefit of Section 20(4) of the Act could be given to the tenant-petitioner. The Trial Court categorically recorded finding that the petitioner-tenant was in arrears of rent and the entire disputed amount of rent was not deposited as such no benefit under Section 20(4) of U.P.Act No.13 of 1972 could be given. Vide judgment and order dated 09.03.2018, the Court below held petitioner-tenant liable to be evicted from the premises in dispute. Against the order of Trial Court, S.C.C. Revision No.16 of 2018 was filed wherein Revisional Court found that the U.P. Act No.13 of 1972 was not applicable and petitioner-tenant being in arrears of rent, refused to interfere with the findings recorded by the Trial Court and revision was dismissed vide judgment and order dated 22.9.2021.

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Sri S.S.Sharma, learned counsel appearing for the petitioner-tenant submitted that the landlord-respondent had not submitted any map sanctioned by the local authority for construction of shop in question, as such it cannot be said that it was constructed in the year 2000 and the finding recorded by the Trial Court was wrong to the extent that the assessment of the shop in question was made on

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01.4.2005, whereas building is an old building and the earlier assessment was done for the first time in 1975. He however, admitted that the entire disputed amount was not deposited and there was some shortfall in the deposit.

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Opposing the writ petition, Sri (Dr.) G.S.D. Mishra, learned counsel for the landlord-respondent submitted that the property in question was purchased by the landlord in the year 1993 and thereafter construction was made and thereafter assessment was made on 01.04.2005. The Trial Court as well as Revisional Court had recorded concurrent finding that the construction has been made in the year 2000 and the case of landlord is protected by Section 2(2)Explanation 1(c) of U.P. Act No.13 of 1972.

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Having heard the rival submission and on perusal of record it is clear that the Trial Court as well as Revisional Court had recorded a categorical finding to the effect that after purchase of shop in dispute in the year 1993, the landlordrespondent started construction in the year 1999 and the same was completed in the year 2000. The rent agreement executed between the parties in the year 2002. Para 1 of rent agreement categorically states that the construction is new and the assessment for the first time was made on 01.4.2005. As the landlord had purchased an old building and thereafter got it renovated and made material alteration and two floor complex was constructed thus benefit of Section 2(2) Explanation 1(c) of U.P. Act No.13 of 1972 was rightly given to the landlordrespondent and the finding arrived at by both the Courts below needs no interference.

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Once the shop in dispute is out of the purview of U.P. Act No.13 of 1972, tenancy of tenant was terminated by the landlord by notice under Section 106 of Transfer of Property Act. The petitioner-tenant having committed default in payment of rent and finding having been arrived by both the Courts below and the disputed amount of rent having not been deposited, no benefit under Section 20(4) of Act, 1972 could have been given. Both the Courts below have recorded categorical finding that construction is new and building is exempted from operation of U.P. Act No.13 of 1972, no interference is required in extraordinary jurisdiction under Article 227 of constitution of India.

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The writ petition fails and is hereby dismissed.

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As learned counsel appearing for petitioner-tenant submitted that some reasonable time may be granted for vacating the shop in question, to which learned counsel appearing for the landlord-respondent did not oppose, this Court grants one year's time to the tenant-petitioner to vacate the shop in question starting from today subject to his giving an undertaking to this effect before the Court below within a month from today.

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It is made clear that the petitioner shall continue to deposit the admitted monthly rent to the landlord-respondent till the time he vacates the shop in question.

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Order Date :- 7.12.2021 Kushal

Rajiv Kumar Gupta v. Sri Mohan Babu Agarwal and Another

Case brief

What is this about?

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Rajiv Kumar Gupta v. Sri Mohan Babu Agarwal and Another

Case brief

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