Allahabad High Court
Burhan vs Chand And Another on 3 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2450
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- MATTERS UNDER ARTICLE 227 No. - 7972 of 2019 Petitioner :- Burhan Respondent :- Chand And Another Counsel for Petitioner :- Vivek Kumar Singh,Ruby Choudhary Counsel for Respondent :- Prasoon Tomar Hon'ble Vivek Agarwal,J.
Heard Sri Vivek Kumar Singh, learned counsel for the petitioner and Sri Jitendra Kumar, learned counsel for the respondent.
This Misc. Petition under Article 227 of the Constitution of India has been filed by the petitioner seeking quashment of the order dated 29.07.2016 passed by the Additional Small Causes Judge, Meerut in S.C.C. Case No. 27 of 2011 and also order dated 21.09.2019 passed by the Special Judge (E.C. Act), Meerut in S.C.C. Revision No. 30 of 2016 with a further prayer for directing the respondents not to interfere in peaceful possession of the shop in question by the petitioner.
Brief fact leading to the present writ petition are that plaintiff had filed a suit for eviction and recovery of arrears of rent and mesne profit on the ground that the provisions of Rent Control Act are not applicable as the construction of the shop is old. Defendant-tenant has made unauthorised construction in the front portion of the suit property and has erected a tin shed without consent of the plaintiff and is trying to convert this temporary construction into a permanent one. Another ground which was taken by the plaintiff is actual and bonafide requirement of the shop and thirdly there being arrears of rent. It was alleged that defendant-tenant is a defaulter and has not paid rent since September 2010. It was also alleged that he has not only changed the nature of the business but has also permitted a cobbler to sit in front of the shop and is profiteering from such collusive permission. It was submitted that shop in question was rented out for the purpose of tyre repairing work but such work of tyre repairing has been discontinued and the tenant is indulging in business of sale of ladies purses. In view of such facts, eviction was sought.
Learned Trial Court has framed as many as ten issues starting from whether the defendant is a tenant of the plaintiff to whether the provisions of the 1972 Act are applicable; whether defendant has made structural changes in the suit property; whether defendant is engaging himself in a business other than for which purpose suit property was rented out; whether defendant was in arrears of rent from September 2010 to April 2011; whether plaintiff is entitled to rent from May 2011 @ Rs. 2,600/- per month etc. Learned Trial Court decided the issue no. 1 in favour of the plaintiff and found that there was default on the part of the defendant-tenant. Similarly, it held that provisions of U.P. Act 13 of 1972 are not applicable. It has also recorded a finding that defendant without permission has carried out structural changes and is carrying out business other than one for which the shop is let out. It also found that plaintiff is not entitled to rent @ Rs. 2,600/- from May 2011 and also not entitled to recover mesne profit @ Rs. 2,600/- per month but can be recovered only @ Rs. 700/- per month. It also recorded a finding that suit is not required to be kept in abeyance in terms of the provisions contained in Section 10 C.P.C. It also recorded a finding that there was no incidence of sub-letting but found that shop was being used for the purpose other than for which it was let out and accordingly decreed the suit for eviction along with direction for payment of mesne profit and actual rent till the date of vacation of the suit property.
The tenant who is appellant before this Court had filed a revision before the Court of Special Judge (E.C. Act), Meerut which recorded a finding that the grounds as are mentioned in sub-section 2 of Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides for the grounds for eviction and there was non-compliance of the provisions of Rule 21(5) which will amount to default in payment of rent. Similarly, it affirmed the finding of the Trial Court that structural change was made in the suit property by erecting a tin shed and therefore, the case will fall under the provisions of Section 20(2)(c) of the Act of 1972. Similarly, it recorded a finding that the tenant has changed the purpose for which the shop was let out and there was violation of provisions contained in Section 20(2)(d) of the Act accordingly dismissed the revision. After hearing the learned counsel for the petitioner that issue no. 1 in regard to violation of the provisions contained in Section 20(2)(a), that the orders passed by the lower courts needs to be set aside.
Even if the aforesaid argument advanced by learned counsel for the appellant is accepted as it is, then also other grounds as are contained in Section 20(2)(c) and under provisions of Section 20(2)(d) pertaining to change of nature of business and raising a construction or structural alteration could not be rebutted by the counsel for the petitioner and therefore, the decree of eviction will be maintainable on these two grounds as are provided under Section 20(2)(c) and (d), therefore, to this extent impugned orders are modified as is directed that plaintiff-landlord is entitled for a decree of eviction only on two grounds namely under Section 20(2)(c) of altering the structure and also on the ground contained in Section 20(2)(d) pertaining to change of nature of business. Therefore, to that extent orders of the courts below are affirmed.
Accordingly, petition is partly allowed but still petitioner will have to vacate the suit premises as decree granted under the provisions of clause (c) and (d) of sub-section 2 of Section 20 has been upheld by this Court.
Order Date :- 3.12.2019 Vikram/-