Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 97

IN THE HIGH COURT OF ALLAHABAD
Vivek Kumar Birla, J.
Hafeez and Others – Petitioners
Versus
Digvijay Singh and Others – Respondents
Matters Under Article 227 No. - 1646 of 2020
Decided On : 19-02-2021

Advocates:
Advocate Appeared:
For the Petitioner: Rama Goel Bansal
For the Respondent: Rishikesh Tripathi

The main legal point established in the judgment is the interpretation of the definition of 'building' under the UP Urban Buildings Act and the jurisdictional aspects of suits before the Small Causes Court.

Headnote:
building - eviction suit - UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Section 3(i), 29; U.P. Provincial Small Causes Court Act, 1887, Section 15, Article 4 - The court discussed the relevant provisions of the UP Urban Buildings Act and the U.P. Provincial Small Causes Court Act. It interpreted the definition of 'building' under Section 3(i) of the UP Urban Buildings Act and the scope of suits excepted from the cognizance of a Court of Small Causes under Section 15 and Article 4 of the U.P. Provincial Small Causes Court Act. The court emphasized that the definition of 'building' includes a residential or non-residential roofed structure and any land appurtenant to such building. It also highlighted the requirement for notice under Section 29(2) of the UP Urban Buildings Act in case of destruction of the building. The court referred to a previous judgment to support its interpretation of the definition of 'building' and the jurisdictional aspects of the case.
Fact of the Case:

The plaintiff filed a suit for eviction and rent arrears against the tenant, alleging that the tenant had raised constructions and materially altered the premises without permission, defaulted in rent payment, and was not entitled to the benefit of Section 20(4) of the UP Act 13 of 1972. The tenant contested, claiming oral permission for construction after the building was damaged by rain. The trial court ruled in favor of the plaintiff, and the revision filed by the tenant was also dismissed.
Finding of the Court:

The court found that the tenant had raised construction without written permission, failed to prove rent payment, and was not entitled to the benefit of the Act. It also held that the suit was maintainable before the Small Causes Court and rejected the tenant's objections regarding the validity of the notice and jurisdictional errors. The court dismissed the petition and directed the tenant to hand over possession, pay rent arrears, damages, and comply with specified conditions.
Issues: Validity of notice, material alteration of premises, default in rent payment, entitlement to benefit under the Act, maintainability of the suit before the Small Causes Court, and jurisdictional errors.
Ratio Decidendi: The court's decision was based on the admission in the tenant's written statement regarding the building's condition, the interpretation of the definition of 'building' under the UP Urban Buildings Act, and the lack of objection raised regarding jurisdictional errors and notice validity before the lower courts.
Final Decision: The petition was dismissed, and the tenant was directed to hand over possession, pay rent arrears and damages, and comply with specified conditions.

JUDGMENT :

1. Heard learned counsel for the petitioners and learned counsel appearing for the respondents.

2. Present petition has been filed for setting aside the judgment and decree dated 22.1.2020 passed by the Additional District Judge, Court No. 3, Jhansi in SCC Revision No. 17 of 2019 as well as judgment and decree dated 8.4.2019 passed by the Judge Small Causes Court, Jhansi in SCC Suit No. 10 of 2009.

3. Shorn of details, the facts of the case in brief are that the suit was filed by the plaintiff on the ground that they are the owner of House No. 646, Mohalla Thakuryana, Puliya No. 9, Jhansi. Reference was made to earlier litigation in regard to the same property. It is alleged that the house was very old, which consisted four rooms, one kitchen, latrine and courtyard. The default in making payment of rent was also claimed. It was alleged that the house was demolished by the tenant on 20.11.2008 and when the defendants tried to raise constructions, injunction suit was filed by the plaintiff, wherein interim order was granted in favour of the plaintiff. A notice was issued to the tenant, which was replied by the tenant. Thereafter, when the rent was not paid and the property was not vacated the suit was filed. The suit was contested by the tenant mainly on the ground that the house was very old and in the last rains substantial part of the house had fallen down and was not left in liveable condition. Therefore, he obtained oral permission from the plaintiffs and Mahendra Singh, who permitted tenants to raise construction and with this permission two khaprail roofed rooms were made at the same place and no demolition or material alteration was done by the tenant and that no rent is due.

4. The trial court framed five issues. (1) whether the notices given to the defendant is valid; (2) whether the defendant has raised constructions and has materially altered the premises in question without permission of the landlord; (3) whether any default in payment of rent was committed; (4) whether the defendants are entitled for benefit of Section 20(4) of the UP Act 13 of 1972 (hereinafter referred to as the Act) and; (5) relief, if any.

5. On the issue of notice it was found that the notice was duly received by the tenant and was also replied; on the issue of material alteration it was found that the case of the defendant himself is that the house had fallen down due to excessive rains and was not in liveable condition and therefore, oral permission was sought from the plaintiffs and Mahendra Singh s/o Dwarika Prasad, which was granted by them and thereafter two khaprail rooms were constructed. In view of this it was found that the defendant has raised construction without written permission of the plaintiff and has materially changed the tenanted accommodation; on the issue regarding default in payment of rent and extension of benefit of Section 20(4) of the Act it was found that the tenant failed to prove that he had paid the rent and therefore, the benefit of Section 20(4) of the Act was refused and accordingly, the relief was granted in favour of the plaintiff by directing the eviction, payment of arrears of rent, payment of damages @ Rs. 100/-per day. The revision filed by the tenant was also dismissed by the court below by recording finding that there is no error in the judgment of trial court, therefore, no interference is warranted.

6. Challenging the impugned orders submission of learned counsel for the petitioners is that it was alleged that the building was demolished by the tenant-petitioner herein whereas notice was given to vacate the building, therefore, the Act would not apply and notice is not valid. Attention was drawn to the plaint allegation that building has been demolished and now exist a plot, therefore, the suit itself before Judge, Small Causes Court was not maintainable. It is further asserted that since a declaration was sought that the plaintiff be declared as a tres-passer the suit itself before the Judge, S