The date of construction of a building should be determined based on municipal records and not oral evidence. The applicability of the Act should be determined in accordance with the statutory provisions. The removal of a partition wall does not necessarily result in disfigurement or reduction in utility.

Manoj Kumar Gupta, J.

Heard Sri K.M. Garg, counsel for the revisionists and Sri Atul Dayal for the plaintiff-opposite parties.

2. The instant revision under Section 25 of the Provincial Small Cause Courts Act, 1887 seeks to question the validity of the decree of eviction dated 31.3.1998 passed by the trial Court in S.C.C. Suit No. 5/1995. The trial Court has recorded a finding on issue No. 1 that U.P. Act No. 13 of 1972 (for short 'the Act') was not applicable to the shops in the tenancy of the revisionists. On issue No. 2, the revisionists were found to be in default in payment of rent. The benefit of deposit made under Section 30 was denied on the ground that the provisions of the Act were not applicable. While deciding issue No. 3, the trial Court held that the revisionists had removed the partition wall between the two shops and had constructed a store and dochhatti. This according to the trial Court amounts to structural alteration, resulting in reduction of value and disfigurement of the tenanted premises. On issue No. 4, the trial Court held that there was no misjoinder of causes of action and while deciding issue No. 5, it has been held that the notice terminating the tenancy was duly served.

3. Sri K.M. Garg, learned counsel for the revisionists made the following submissions : -

1. The finding regarding applicability of Act is based on oral statement of the parties and alleged admission in a rent note, none of which could form basis for determining the date of construction of the building. In other words, the submission is that the date of construction of the building was required to be determined in accordance with the statutory provisions contained in Section 2(2) of the Act. In support of his contention, he has placed reliance upon the judgment of the Supreme Court in Ram Saroop Rai Versus Smt. Lilawati, (1980) ARC 466.

2. The plaintiff did not appear in the witness box. Yogesh Kumar, the sole witness examined on behalf of plaintiff claims himself to be power of attorney holder of Smt. Sita Devi, who came to be substituted after the death of the original plaintiff. Learned counsel for the revisionists has placed reliance upon the judgment of Supreme Court in Janki Vashdeo Bhojwani and another Versus Indusind Bank Ltd. and others, (2005) 2 SCC 217 in contending that no one can delegate to anyone the power to appear in the witness box on his behalf. He further submitted that where a party to the suit does not appear in the witness box to prove his case, nor offers himself for cross-examination by the other side, a presumption would arise that the case set up by him is not correct. Reliance in this regard has been placed on another judgment of the Supreme Court in Vidhyadhar Versus Manikrao, (1999) 3 SCC 573.

3. The finding regarding alleged default in payment of rent is also wholly illegal, as the entire amount was already deposited in proceedings under Section 30 of the Act. In case, the Act is held to be applicable, the deposits made under Section 30 would cover the period of alleged default.

4. The finding recorded by the Courts below regarding removal of wall by the revisionists is wholly illegal and perverse. He has referred to paragraph 8 of the written statement wherein, a specific plea was taken that initially only one shop was let out to the revisionists in the year 1987 and subsequently, when the other shop was let out in 1990, the plaintiff himself carried out modifications in the premises and removed the wall, constructed a store and a dochhati, so as to ensure security of the goods of the revisionists. The submission is that the finding recorded by the trial Court that the partition wall and other constructions were made by the revisionists is based on surmises and conjectures and on wholly irrelevant considerations, not sustainable in law. In support thereof, he has placed reliance upon the judgments of this Court in : -

(a) Ramesh Chand Rastogi Versus VIIIth Additional District Judge, Meerut and anoth