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2009 Supreme(All) 2973
[2009(8) ADJ 432]
ALLAHABAD HIGH COURT
BEFORE : MRS. POONAM SRIVASTAVA, J.
RAVI AGRAWAL ....Petitioner
Versus
ANIL KUMAR VERMA ....Respondent
(Civil Misc. Writ Petition No. 6225 of 2009, decided on 24th August, 2009)
Counsel :
M.A. Qadeer and Shamim Ahmad for the Petitioner; K. Ajit for the Respondent.
Headnote:U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 20(4) and 20(2)(c)—Transfer of Property Act, 1882—Section 106—Demanding arrears of rent on ground of default and material alteration in shop in dispute—Notice given by respondent landlord (plaintiff) to petitioner-tenant—Decreed by J.S.C.C.—And, dismissal of revision against by A.D.J.—Hence, petition—Two Courts holding notice valid—Tenancy stood terminated in event of non-deposit of rent demanded in notice—That having not been done—It was concurrent finding of fact—That itself was sufficient for decree of eviction—Tenant has to necessarily establish that entire arrears of rent alongwith 9% interest plus cost of suit, should be deposited unconditionally on first date of hearing—Tenant not entitled to benefit under Section 20 (4) of Act—Besides, he has made material alteration without permission of landlord—Thus, impugned judgment of two Courts below, does not require any interference. [Paras 10, 11, 12, 16 and 17]
Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri M.A. Qadeer, Senior Advocate assisted by Sri Shamim Ahmad, counsel for tenant/petitioner and Sri K. Ajit, counsel for contesting landlord/respondent.
2. Counter and rejoinder affidavits have been exchanged. The counsels for respective parties agree that the instant petition may be decided finally at the stage of admission itself.
3. The dispute relates to a shop measuring 8 x 10 situated at Taxi Stand Road, Civil Lines, Rampur. Petitioner is a tenant of the said shop at the rate of Rs. 400/- per month. Plaintiff/respondent gave a notice for demanding arrears of rent on the ground of default in payment of rent as well as material alteration in the shop in dispute on 20.7.2002. After expiry of period of notice, S.C.C. Suit No. 12 of 2002 was instituted for recovery of arrears of rent and damages.
4. The Judge Small Causes Court decreed suit on 24.3.2007 in favour of plaintiff, which was challenged in S.C.C. Revision No. 21 of 2007. The judgment and decree of the Judge Small Causes Court was confirmed in S.C.C. Revision, same was dismissed by Additional District Judge, Court No. 2, Rampur, vide judgment and order dated 4.11.2008. Both the judgment and orders are challenged in the instant writ petition.
5. Sri M.A. Qadeer, has challenged the impugned judgments on three counts. First challenge is on the ground of notice under Section 106 of Transfer of Property Act. Contention of the counsel for petitioner is that notice was not served and finding of the Courts below that it was refused by tenant/petitioner, is not substantiated by evidence. Besides, notice was invalid.
6. Next challenge is on the ground that the Court illegally failed to grant benefit of Section 20 (4) of U.P. Act No. XIII of 1972 (hereinafter referred to as the Act) and also findings were recorded on material alteration under Section 20 (2) (c) of the Act.
7. The counsel for petitioner has placed paragraph 4 of plaint as well as statement of PW-1 Anil Kumar Verma to substantiate his argument that date of notice mentioned is 30.7.2002 and plaintiff claims that service was also effected on the same day. Suit was instituted immediately after 30 days i.e. 3.9.2002. Thus, requisite period of 30 days did not expire. Admittedly, it is mentioned in the plaint that notice is dated 30.7.2002. It is stated that notice was refused by refusal on the same day and suit was instituted thereafter. Therefore, period mentioned in notice had not elapsed. Besides, it is also submitted that tenancy was not determined and, therefore, tenant could not be evicted on the basis of said notice.
8. Sri K. Ajit, has objected this argument of Sri M.A. Qadeer. He has placed photostat copy of notice, which is annexed as Annexure 1 to the writ petition where date of notice mentioned is 20.7.2002 and on the back of notice an endorsement of post man regarding refusal by tenant is 30.7.2002. Stamp of post office is also dated 20.7.2002, therefore, the Courts have rightly come to a conclusion that notice is in fact dated 20.7.2002 and not 30.7.2002 as mentioned in the plaint. This error has been explained by PW-1 in his statement where he has unequivocally admitted that date of notice mentioned in the plaint as 30.7.2002 is due to inadvertence and this fact has clearly been discussed in the judgments of the Courts below. Therefore, findings arrived at by Courts below after analyzing evidence, which is the notice, cannot be challenged under Article 226 of the Constitution of India.
9. Besides, Sri K. Ajit, has placed extract of judgment of the Courts below where finding has been recorded on the basis of explanation given by PW-1 regarding mistake in the plaint. The Court recorded finding that notice is dated 20.7.2002 and it was refused on 30.7.2002. List of evidence mentioned as 5-C to 6-C are copies of notice dated 20.7.2002, paper No. 7-C is postal receipt, 8-C is original notice dated 20.7.2002 brought on record. PW-2 has also stated that refusa
