Shishir Kumar, J.@mdashVakalatnama of Sri S.K. Mehrotra filed today on behalf of respondent be kept on record.
2. The present writ petition has been filed for quashing the orders dated 2nd February, 2009 (Annexure 6 to the writ petition) and order dated 13.8.2007 (Annexure 5 to the writ petition).
3. The facts arising out of present writ petition are that petitioner claims to be tenant of opposite party No. 3, who is the landlord and petitioner is tenant on monthly rent of Rs. 300/-, Rs. 350/- and Rs. 400/- respectively of the three shops sitauted at D.C. Road, Katchery, Lakhimpur Kheri. The aforesaid shops are old in tenancy since 1979, 1981 and 1984 respectively. Respondent No. 3 sent a notice of demand terminating the tenancy on 22.6.2001 claiming arrears of rent amounting to Rs. 2100/- and to quit the premises. A notice was served upon petitioner on 28.6.2001. On being served with notice, a reply was sent by petitioner.
4. A suit was filed for arrears of rent and ejectment against petitioner on the ground that he is tenant of three shops which were let out to him on 1.1.1995 on a monthly rent. The rent of Shop No. 1 is Rs. 300/-, Shop No. 2 is Rs. 350/- and Shop No. 3 is Rs. 400/- and an agreement (rent deed) was also executed on 6.1.1995. The shops were constructed in the year 1991, hence the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act of 1972 (hereinafter called) the Act are not applicable. It was also clear that as the petitioner is a habitual defaulter, hence he did not intend to keep as his tenant and therefore, through a demand notice, tenancy has already been terminated. Despite service of notice, petitioner has not complied the notice, as such, a suit has been filed.
5. The suit was contested by petitioner by filing a written statement denying the allegations made in the plaint. It was pleaded that he is a tenant since 1979 and is carrying on the business of Flour Mill etc. and he had never committed any default in payment of rent. The rent remitted by him through money order dated 18.6.2001 was refused by opposite party No. 3 without assigning any reason, which he is ready to pay. Petitioner has submitted a tender to deposit the rent and as soon as it is passed, he will deposit the rent in Court. It was further pleaded that in the year 1995 some renovation was done in the shops and the shops were never constructed. The old shops which were given in tenancy to petitioner are continuing in the possession for the last 20 years, therefore, the Act No. 13 of 1972 is applicable and no right has accrued to respondent-landlord to evict the petitioner. The Judge, Small Causes Court without taking into consideration all the pleadings that in support of his case, opposite part No. 3 has examined Ashad Husain as his attorney and Mohd. Mustafa Khan, Advocate who has sent notice while the petitioner examined himself as D.W.1. The trial court framed various points and has held vide its judgement and order dated 13.8.2007 that Act No. 13 of 1972 is not applicable as the shops in question have been constructed in the year 1991. Aggrieved by the aforesaid order, a revision was filed by petitioner, that too has been dismissed vide it s order dated 2.2.2009.
6. Learned Counsel for petitioner submits that opposite party No. 3 has never produced himself to be examined regarding the fact the year of construction of the shops, whether it was constructed in the year 1991 or prior to 1979 when the shops in question were given in tenancy of petitioner. Further submission has been made that rent deed being an un-registered document cannot be taken into consideration even for collateral purposes because it was only a renovation, therefore, tenancy of petitioner continued on higher rent, as such, the opposite party Nos. 1 and 2 have erred in law in holding that Act is not applicable. Revisional court has clearly erred in law in holding that being exercising the revisional jurisdiction, he cannot interfere with finding of fact recorded by the Judge, Small Cause Court. Petitioner has placed reliance upon a judgement of the Apex Court reported in 2008(72) ALR 678, M/s K.B.Saha and Sons Pvt. Ltd and M/s Development Consultant Ltd. Taking support of aforesaid judgement, learned Counsel for petitioner submits that rent deed being unregistered document cannot be taken into even for collateral purposes, therefore, placing reliance only upon rent deed court below has clearly misread it, holding that Act No. 13 of 1972 is not applicable.
7. On the other hand, Sri S.K.Mehrotra, learned Counsel appearing for the respondents has submitted that the finding recorded by the courts below are a finding of fact and no interference can be called by this Court while exercising powers under Article 226 of the Constitution of India.
8. It has further been submitted that the court below has held that the shops in question has been constructed in the year 1991. It is not an old construction and from the perusal of the defence witnesses there are contradictions. Further submission has been made that it is well settled in law that date of assessment of a building or shop is the final and conclusive prove of the date of completion of a building and from the record a finding has been recorded that it has been assessed first time in the year 1996, therefore, by no means it can be inferred that it is an old shop, which was rented out to petitioner in the year 1979.
9. I have learned Counsel for the petitioner and Sri S.K.Mehrotra, learned Counsel for the respondent and have considered the submissions as well as the finding recorded by the courts below.
10. From the perusal of findings recorded there is no dispute from record that petitioner is a tenant of Shop No. 1, 2 and 3 from 1984, 1981 and 1979. In the year 1988, map was sanctioned from Nagar Palika and defendant-petitioner has vacated 10ft. land on south in the hata where he was in possession. The petitioner was ready to vacate the said premises on the condition that after construction of new shops, he will be given three shops. The shops were completed in the year 1991 and on the basis of rent deed, possession was given to him and shop in question was first time assessed to Nagar Palika on 17.11.1996. Considering all these issues, court below has recorded a finding that it cannot be held that shops in question has not been constructed in the year 1991, therefore, Act No. 13 of 1972 is not applicable. Further finding has been recorded that from evidence on record, it is also clear that it was in tenancy of petitioner earlier but subsequently it has been demolished and after getting the map sanctioned it was re-constructed in the year 1991. Further, the case of Apex Court relied upon by learned Counsel for petitioner that an unregistered rent deed or lease deed cannot be looked into as an evidence even in collateral proceeding. The contention of petitioner cannot be accepted to this effect as taking support of the aforesaid judgement, he has submitted that unregistered documents cannot be taken into consideration for the purposes of evidence in a collateral proceeding or for a collateral purpose. Paragraph 17 of the K.B. Shah''s case (Supra) is clear to this extent that the Apex Court has held that it can be taken into consideration for the collateral purpose. Paragraph 17 is being reproduced below:-
17. As we have already noted that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose, let us now look at the meaning of "collateral purpose" and then ascertain whether Clause 9 of the lease agreement can be looked into for such collateral purpose. In Haran Chandra Chakravarti v. Kaliprasanna Sarkar, it was held that the terms of a compulsorily registrable instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy,which cannot be proved by admission of an unregistered lease-deed into evidence.
11. Further both the courts have recorded a finding that after due sanction of map, shops were constructed in the year 1991 and it was assessed in the year 1996, therefore, as the first assessment of the shops in question is 1996, as such, Act No. 13 of 1972 is not applicable and mere a notice u/s 106 of Transfer of Property Act terminating the tenancy is sufficient.
12. In view of aforesaid fact, I find no merit in the writ petition.
13. The writ petition is devoid of merits and is hereby dismissed.
14. At the last, learned Counsel for petitioner submits that some reasonable time may be granted because there are three shops and petitioner has to vacate the same as petitioner''s livelihood is there, as such, petitioner is granted nine months time from today provided, petitioner submits an affidavit in the shape of undertaking that he will vacate the shops in question within a period of nine months from today and will not induct any third person and will handover peaceful possession of shops in question to the landlord-respondent, then in that case, the court below is directed to grant nine months time on the basis of aforesaid undertaking. It is also made clear that any arrears of rent as well as the rent for nine months period will be paid by the tenant petitioner immediately prior to the date of vacation of the said shops.
15. No order as to costs.
