Allahabad High Court
Ravindra Gupta vs Smt. Kamlesh Agarwal (Deceased) And 2 ... on 4 July, 2025
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:104517
Reserved on 04.03.2025
Delivered on 04.07.2025
Case :- MATTERS UNDER ARTICLE 227 No. - 1102 of 2019
Petitioner :- Ravindra Gupta
Respondent :- Smt. Kamlesh Agarwal (Deceased) And 2 Others
Counsel for Petitioner :- Krishna Mohan Garg
Counsel for Respondent :- Dinesh Kumar,Rama Goel Bansal
Hon'ble Saral Srivastava,J.
1. Heard Sri K.M. Garg learned counsel for the petitioner and Ms. Rama Goel Bansal, learned counsel for the respondent.
2. The petitioner, who is a tenant of a shop, has filed the present petition challenging the judgement and decree dated 17.04.2017 passed by the Civil Judge (Senior Division)/Fast Frack Court, Mathura in S.S.C. Suit No.24 of 2006 (Smt. Kamlesh Agarwal Vs. Ravindra Gupta) whereby the learned Judge has passed an eviction decree against the petitioner, and judgment and order dated 22.01.2019 passed by the Additional Sessions Judge Court No.2, Mathura in S.S.C. Revision No.14 of 2017 (Ravindra Gupta Vs. Smt. Kamlesh Agarwal and Others) whereby, the Revisional Court has affirmed the judgement and decree dated 17.04.2017 passed in S.S.C. Suit No.24 of 2006, and order dated 11.12.2018 passed by the Additional Sessions Judge (SC/ST Act), Court No.2, Mathura whereby he has rejected the application 41-C of the petitioner for amendment in the written statement.
3. The facts, in brief, are that the respondent no.1 instituted S.S.C. Suit No.24 of 2006 in respect of a shop described at the foot of the plaint contending inter alia that the petitioner is the tenant of the shop on a monthly rent of Rs.363/- per month. It is further stated that before July, 2004, the rent of the shop was Rs.330/- per month, and as per the agreement between the parties, the rent of the shop was to be increased by 10% after every 3 years, and therefore, since August, 2004 the rent of the shop was Rs. 363/- per month.
4. The further averments in the plaint is that the shop is a new construction, therefore, it is not within the purview of U.P. Act No.13 of 1972. It is further stated that the shop is needed by the respondent no.1 for the business of her son, therefore, respondent no.1 does not wish to continue the petitioner as tenant and has sent a notice dated 15.09.2006 under Section 106 of the Transfer of Property Act to the petitioner terminating his tenancy.
5. By amendment, paras 3अ & 3ब had been incorporated in the plaint stating therein that the shop is demolished completely some time back and shop is a new construction, therefore, provisions of U.P. Act No.13 of 1972 are not applicable on the shop.
6. It is further stated that the shop in respect of which petitioner claims to be tenant was surrendered and possession of the said shop was handed over to the respondent no.1. The said shop was demolished completely by respondent no.1 and petitioner was given newly constructed shop under tenancy, and tenancy of this new shop has no relation with the old shop. It is further stated that the rent of the shop was due since April, 2005, but petitioner dishonestly through his reply to the notice of respondent no.1 informed that he had deposited the rent of the shop till 25.07.2006 by cheque no.40631 of Rs.4,356/- and further deposited an amount of Rs.1442/- by cheque no.40632 in the account of respondent no.1. The respondent no.1 was surprised to know about the deposit of the rent through cheque and got an enquiry made through her husband from the bank. On enquiry, it was found that the petitioner dishonestly deposited the rent. It is further stated that the tenancy of the petitioner has been terminated by notice dated 15.09.2006 on the aforesaid facts.
7. In view of the aforesaid facts, the respondent no.1 prayed for a decree of eviction of petitioner from the shop besides other relief.
8. The aforesaid suit was contested by the petitioner by filing written statement admitting the tenancy of the shop at the rent of Rs.363/- per month. The petitioner denied the fact that the shop is a new construction and provisions of U.P. Act No.13 of 1972 are not applicable.
9. The petitioner further stated that a wrong notice had been given to him. The petitioner further stated that the shop which is under his tenancy was constructed in the year 1981. It is further stated that the respondent no.1 got constructed the market over her land in the year 1980-81. It is further stated that since the respondent no.1 wanted to extend the gate of the market, therefore, requested the petitioner to handover the shop which was under his tenancy, and in lieu thereof, a new shop at the same rent of Rs.14/- would be given to the petitioner. The petitioner acceded to the request of the respondent no.1 and surrendered the old shop and he was given another shop in lieu of old shop on the same rent. The petitioner further stated that the old tenancy continued even after exchange of shop.
10. It is further stated that there was an agreement between the petitioner and respondent no.1 that respondent no.1 would never get the shop vacated, and in case, the shop which was given to the petitioner was demolished, the petitioner would be given another shop of the same size. The petitioner further stated that the tenanted shop was constructed in the year 1980-81 which was given to the petitioner in exchange of another shop, therefore, provisions of U.P. Act No.13 of 1972 were applicable.
11. It has been further stated that the respondent no.1 and her husband pressurized the petitioner for enhancement of rent, and an agreement dated 25.12.1981 was entered into between the petitioner and respondent no.1, copy of which is with the respondent no.1, and under the agreement, the rent was enhanced to Rs.300/-. Thereafter, respondent no.1 again pressurized the petitioner to enhance the rent at the rate of 10% and rent of the shop was enhanced to Rs.363/- per month. It is further stated that there is no default in payment of rent.
12. On the basis of aforesaid pleadings, the Trial Court has framed nine issues which are reproduced herein below:-
"1. क्या वादी विवादित संपत्ति का प्रतिवादी की ओर से जुलाई 2004 से 330/- रुपये पर करार के तहत तीन वर्ष में 10 प्रतिशत किराया बढ़ाने की शर्त के तहत किरायेदार अध्यासी है? यदि हां तो प्रभाव?
2. क्या वाद संपत्ति के सन्दर्भ में प्रतिवादी पर अप्रैल 2005 से किराया अदा करने में व्यतिक्रम को किया गया है ? यदि हां तो प्रभाव?
3. क्या वादी के द्वारा प्रतिवादी की किरायेदारी को नोटिस दि०15.09.06 के तहत समाप्त कर दिया गया है ? यदि हां तो प्रभाव?
4. क्या वादी का वाद आदेश 7 नियम 11 सी०पी०सी० के तहत निरस्त किये जाने योग्य है जैसा कि प्रतिवादपत्र के प्रस्तर-9 में अभिकथित है? यदि हां तो प्रभाव?
5. क्या विवादित संपत्ति पर उ०प्र० अधिनियम सन 1972 लागू होता है यदि हां तो प्रभाव?
6. क्या प्रतिवादी धारा 111 व 114 संपत्ति हस्तांतरण अधिनियम का लाभ पाने का अधिकारी है यदि हां तो प्रभाव?
7. क्या प्रतिवादी धारा 20(4) उ०प्र० अधिनियम 13 सन 1972 का लाभ पाने का अधिकारी है यदि हां तो प्रभाव?
8. वादी किसी अन्य अनुतोष को पाने का अधिकारी है?
दिनांक 02.01.2011को निम्न अतिरिक्त वाद बिंदु का विरचन किया गया ।
9. क्या प्रतिवादी ने पुरानी किरायेदारी वाली दुकान सरेंडर कर छोड़ दी थी तथा नई बनी दुकान प्रतिवादी को नयी किरायेदारी के तहत किराये पर दी गयी है, जैसा कि वादपत्र के पैरा 3 ब में अभिकथित है?"
13. The Trial Court decided the issue nos.5 & 9 together and held that the shop under tenancy of petitioner is a new construction, and therefore, provisions of U.P. Act No.13 of 1972 are not applicable. The other issues have also been decided by the Trial Court against the petitioner.
14. The petitioner, thereafter, preferred S.C.C. Revision No.14 of 2017 challenging the judgement and decree dated 17.04.2017 passed by the Trial Court. However, during the pendency of the revision, plaintiff/respondent no.1-Smt. Kamlesh Agarwal had died and her legal heirs have been substituted.
15. In the revision, the petitioner filed an amendment application under Order 6 Rule 17 of C.P.C. for incorporating para 35-अ in the written statement, wherein the petitioner wanted to incorporate that assessment order of 1998 filed by the respondent no.1 was forged and fabricated with the help of employees of Nagar Palika.
16. The ground on which the application under Order 6 Rule 17 of C.P.C. was filed by the petitioner was that the petitioner had filed assessment order from 1993 to 1998 on 04.09.2017 before the Revisional Court as the same could not be filed before the Trial Court which had been taken on record by the Revisional Court on 05.09.2017. It is further alleged that the petitioner/revisionist got the assessment of 1998 on 07.08.2007, the said document was mixed up with old documents and could be found only today. This document could prove that respondent no.1 in collusion with employees of Nagar Palika fabricated and forged the assessment of 1986 to 1993 and 1998 filed by list 74-ग before the Trial Court.
17. The Revisional Court by order dated 11.12.2018 rejected the amendment application on the ground that power of the Revisional Court under Section 25 of Provincial Small Cause Courts Act is limited, and therefore, no case for allowing the amendment application under Order 6 Rule 17 of C.P.C. has been made out.
18. The Revisional Court, thereafter, by judgement and decree dated 22.01.2019 rejected the revision and held that the Trial Court has not committed any error in passing the decree of eviction. The Revisional Court affirmed the finding of the Trial Court that shop is a new construction and provisions of U.P. Act No.13 of 1972 are not applicable. Accordingly, it did not find any merit in the revision and dismissed the same.
19. Challenging the aforesaid judgement and decree, learned counsel for the petitioner has contended that the petitioner was given new shop in lieu of old shop which was constructed in the year 1980-81, therefore, the finding of the Trial Court as well as Revisional Court that provisions of U.P. Act No.13 of 1972 are not applicable is perverse and illegal.
20. To buttress the aforesaid submission, he submits that there was an order passed by the Secretary, Mathura Vrindawan Development Authority, Mathura dated 23.12.1981 based on a report of Junior Engineer dated 16.09.1981 that an illegal construction of about 12 shops in residential area were being raised, the respondent no.1 may demolish the shop within a month or the same shall be demolished by the authority. He further submits that there is a report of Junior Engineer alongwith a map which reflects that 12 shops were constructed in the year 1981, and therefore, it has been proved by the petitioner that the shop under tenancy of petitioner was constructed in the year 1981, therefore, shop is not exempted from the provisions of U.P. Act No.13 of 1972.
21. He further submits that the plaint does not state the date when the shop was constructed and when the first assessment was done. He further submits that the Trial Court did not decide the said issue. He submits that in the instant case, the respondent no.1 did not appear and in her place her son had appeared, therefore, respondent no.1 has failed to prove her case, and thus, the Trial Court has erred in law in decreeing the suit.
22. He further submits that as per Section 2(2) of the U.P. Act No.13 of 1972, if landlord is alive, who got the construction raised, then he or she has to tell the actual date of construction and aid of explanation can be taken only when original landlord is not alive. He further contends that since Section 2(2) of the U.P. Act No.13 of 1972 provides that provision of U.P. Act No.13 of 1972 shall not apply to building during the period of ten years from the date its construction is completed and by virtue of deeming clause, the date of completion of construction shall be the first date for counting the period of exemption from the U.P. Act No.13 of 1972 and the aid of the explanation can be taken only when the date of construction is not available. Thus, his submission is that since in the instant case, various documents on record proved that the shop was constructed in the year 1981, therefore, that date of construction should be taken as a first date for counting the period of ten years for exemption from the U.P. Act No.13 of 1972, and since the suit had been instituted in the year 2006, therefore, Subordinate Courts have acted illegally in relying upon the assessment order to conclude that the shop is a new construction.
23. In support of his aforesaid arguments, learned counsel for the petitioner has placed reliance upon following judgements:-
i. Ram Saroop Rai Vs. Smt. Lilawati 1980 ARC 466;
ii Om Prakash Gupta Vs. Dig Vijendrapal Gupta 1982 (1) ARC 391 SC;
iii. State of Maharashtra Vs. Laljit Rajshi Shah & Others AIR 2000 SC 937;
iv. Janki Vashdeo Bhojwani & Another Vs. Indusind Bank Ltd. & Others (2005) 2 SCC 217;
v. Vidhyadhar Vs. Mankikrao & Another AIR 1999 (SC) 1441;
vi. Man Kaur (Dead) By LRS. Vs. Hartar Singh Sangha (2010) 10 SCC 512.
24. It is further contended that Subordinate Courts have erred in law in holding that the rent deed being non-registered is not admissible in evidence. It is contended that the said rent deed is not required to be registered as the said rent deed was not a rent agreement but only an agreement in respect to exchange of shop. It is also contended that even if presuming that the rent agreement is required to be registered, it can be read for collateral purposes. In support of his aforesaid contention, learned counsel for the petitioner has placed reliance upon following judgements:-
i. Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo & Others AIR 1981 SC 1937;
ii. Satish Chand Makhan & Others Vs. Govardhan Das Byas & Others 1984 (1) ARC 515 (SC).
25. It is also contended that since the Revisional Court has acted illegally in rejecting the amendment application on misconceived grounds inasmuch as Revisional Court has power to allow the amendment application under Section 17 of Provincial Small Cause Courts Act, and therefore, the order rejecting the amendment application is illegal and cannot be sustained in law. In support of his argument, learned counsel for the petitioner has placed reliance upon following judgements:-
i. Surjeet Singh Vs. Additional District Judge, Sitapur & Others 2011 (2) ARC 65;
ii. Ramesh Chandra Vs. District Judge, Unnao & Others 2011 (2) ARC 200.
26. It is also contended that plaintiff/respondent no.1 in Original Suit No.544 of 2007 instituted by the petitioner had admitted in her affidavit that construction of the shop was raised in the year 1981, therefore, once factum of construction had been admitted by the respondent no.1 in Original Suit No.544 of 2007, the respondent no.1 cannot resile and turn around and set up a plea that shop was a new construction.
27. Per contra, learned counsel for the respondent would contend that the finding returned by the Subordinate Courts are finding of fact, and therefore, this Court may refrain from interfering with the finding of fact returned by the Subordinate Courts. She submits that explanation to Section 2(2) of U.P. Act No.13 of 1972 has clarified what is the date of construction and how the date of construction is to be determined for the purpose of seeking exemption from U.P. Act No.13 of 1972.
28. She further submits that the date of first assessment is material and not the date of construction. She submits that the rent deed does not reflect that construction was raised in the year 1981. It is further contended that order of Secretary, Mathura Vrindavan Development Authority, Mathura on which heavy reliance has been placed does not show when the construction was completed.
29. She further submits that the rent deed has been denied by the respondent no.1 and both the Courts below have rightly disbelieved the rent deed since it was not registered rent deed as the determination of question as to what is the date of construction of the shop is not a collateral purpose, and therefore, it cannot be read in evidence. In support of her submission, learned counsel for the respondent has placed reliance upon judgement of the Apex Court in the case of Om Prakash Gupta Vs. Dig Vijendrapal Gupta 1982 (1) ARC 391.
30. It is further contended that when a fact can be established by documentary evidence, only documentary evidence is relevant and is to be considered and oral admission is not relevant being second hand evidence. In this regard, she has placed reliance upon the judgement of this Court in the case of Vijay Laxmi Jain Vs. Rameshwar Dayal Gupta 2001 (1) ARC 514.
31. It is further contended that son of respondent no.1 had power of attorney of respondent no.1 which authorises him to contest all the cases on behalf of respondent no.1, and son of respondent no.1, who appeared as P.W.1, had stated only those facts which were in his knowledge and in his statement, he has categorically stated that the construction was raised before him and thus, contention of learned counsel for the petitioner that respondent no.1 failed to prove her case as she did not appear before the Court to prove her case is misconceived and not sustainable in law.
32. She further submits that as per record, shop No.106/2 under the tenancy of petitioner was newly constructed which number has come for the first time in municipal record in the assessment of 1998 and petitioner admits the tenancy of shop no.106/2, therefore, Subordinate Courts have rightly concluded that the shop is newly constructed shop and provisions of U.P. Act No.13 of 1972 are not applicable.
33. She further contends that the petitioner in paragraph nos.17 & 20 of the petition admits that tenancy of the shop was in the name of his father, who surrendered the tenancy and tenancy of the petitioner was a fresh tenancy.
34. She further submits that Revisional Court has rightly rejected the amendment application of the petitioner inasmuch as the delay of 11 years had not been explained by the petitioner in filing the amendment application, and further it was not a case that facts which the petitioner wanted to incorporate in the written statement were not in his knowledge and he acquired knowledge of these facts for the first time when application under Order 6 Rule 17 of C.P.C. was filed.
35. I have considered the rival submissions advanced by the parties and perused the record.
36. In the light of the facts delineated above, the Court proceeds to consider the arguments advanced by the learned counsels for the parties.
37. The submission of learned counsel for the petitioner with respect to the fact that the shop was constructed in the year 1980-81, therefore, provisions of U.P. Act No.13 of 1972 are applicable, and the contention that by virtue of deeming clause, the date of completion of construction shall be taken as a first for counting the period of exemption from U.P. Act No.13 of 1972, and aid of explanation can be taken only when the date of completion of construction is not available are being dealt with together.
38. Now so far as the reliance placed upon the order of the Secretary, Mathura Vrindavan Development Authority, Mathura dated 23.12.1981 is concerned, the said order is based upon the report of the Junior Engineer dated 16.09.1981 which states that about 8 days back, respondent no.1 had started raising construction without getting any map sanctioned of two shops on the ground floor in the residential area which is illegal, and on the site, the bricks and other construction materials were lying. It further stated that the aforesaid construction was being raised very fast. In the light of the aforesaid report, the operative portion of the order dated 23.12.1981 passed by the Secretary, Mathura Vrindavan Development Authority, Mathura is reproduced herein below:-
"अवर अभियन्ता ने दिनांक 01.12.81 को अपनी चालानी रिपोर्ट साबित की।
पत्रावली का अध्ययन किया। विपक्षी द्वारा किया गया निर्माण अवैध है। आदेश दिया जाता है कि आदेश की तिथि से एक माह के अन्दर विपक्षी या तो उक्त अवैध निर्माण को स्वतः ध्वस्त करा दे नहीं तो प्राधिकरण द्वारा उपरोक्त अवैध निर्माण ध्वस्त करा दिया जायेगा और ध्वस्तीकरण पर हुआ व्यय विपक्षी से मालगुजारी की बकाया के रूप में वसूल कर लिया जायेगा, तदनुसार विपक्षी सूचित हो।"
39. It is not clear from the extracted portion of the order that the shop was constructed completely and what is the date of completion of construction. Further, in compliance of the aforesaid order, the fact whether the shop had been demolished or not has not come on record. The perusal of aforesaid order does not prove that the shop was constructed in the year 1980-81.
40. Now so far as the rent deed dated 25.12.1981 is concerned, the Subordinate Courts have rightly held that the rent deed being an unregistered document was not admissible in evidence. The determination of question on the basis of rent deed that the construction was completed in the year 1981, in the opinion of the Court, was not a collateral purpose, and therefore, unregistered rent deed dated 25.12.1981 cannot be read in evidence. In such view of the fact, the judgements relied upon by the learned counsel for the petitioner in the cases of Bhaiya Ramanuj Pratap Deo (supra) and Satish Chand Makhan (supra) are not applicable in the context of the present case.
41. It is pertinent to note that perusal of the rent deed dated 25.12.1981 also does not show that the shop was constructed in the year 1981. Since, the document relied upon by the learned counsel for the petitioner, referred to above, did not prove conclusively that the shop was constructed in the year 1981, therefore, the question that by virtue of deeming clause, it is only the date of completion of construction is to be considered and explanation to Section 2(2) of the U.P. Act No.13 of 1972 cannot be taken into consideration does not arise. Thus, the judgement relied upon by the learned counsel for the petitioner in the case of State of Maharashtra (supra) on the issue of deeming fiction is not relevant in the context of the present case.
42. At this stage, it is relevant to refer to the judgements cited at the bar by the learned counsel for the respondents wherein the Court has held that the date of first assessment is material. In the case of Om Prakash Gupta (supra), the Apex Court has held that where there is an assessment, it will be the date of first assessment which will be deemed to be the date of completion of construction. Paragraph 6 of the said judgement is reproduced herein-below:-
"6. As a second limb to the first argument, it is contended that the building will be deemed to have been constructed, on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of Section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-section (2) of Section 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied......for the first time. A perusal of Explanation I makes it abundantly clear that the occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction, and in that view of the matter the building had not become more than ten years' old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of Section 39 of the Act to the appellant."
43. Similarly, in the case of Raj Kumar Sharma Vs. District Judge, Haridwar and Others 1993 (2) ARC 103, this Court has held that it is only the date of assessment of building which has to be taken to be the date as starting point for computing the period of exemption and other factors such as date of occupation etc. lose all significance. Paragraph nos.18 & 19 of the said judgement are reproduced herein-below:-
"18.The question involved in the present case is to be determined the back ground of aforesaid position in law. The provisions contained in Section 2 (2) of the U.P. Act No.13 of 1972 clearly indicate the legislative policy of allowing exemption from the restrictive provisions of the Act to all the building for specified period to be computed from the date of the completion of their construction. Such an exemption was felt necessary in order to give incentive to appears desirous to construct new buildings. The Legislature has expressly recognised the need for encouraging the construction of new buildings by granting exemption to all such building which had not completed ten years from the completion of their construction computed in accordance with the provisions contained in the explanation to Section 2 (2) of the Act. This period of exemption was raised from ten years to twenty years by an Ordinance and to forty years as provided for by the U.P. Act No.11 of 1988. In the statement of objects and reasons of the said Act it has been clearly indicated that the second proviso to sub-section (2) of Section 2 of the Act provided that the buildings constructed on or after April 26, 1985 shall be exempted from the operation of the said Act for a period of twenty years from the date on which the construction was completed. In order to encourage the construction of new buildings in the State it had been decided to extend the period of said exemption from twenty years to forty years. It is, therefore, obvious that the provision of exemption envisaged under Section 2 (2) of the U.P. Act No. 13 of 1972 had been made specifically for the benefit of the landlords and consequently in order to secure the benefit to be provided to the landlords the explanation has to be interpreted in a manner so as to ensure that the protection and its benefit gets extend to the landlords. As observed by the Supreme Court in its decision in the case of Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar and Another, reported in 1991 J.T. (4) 500, a mechanical approach to construction is altogether out of step with modern positive approach. The modern positive approach, it was indicated, is to have a purposeful construction that is to effectuate the object and purpose of the Act. Further in determining either the general object of the legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubtful significance be presumed to be the true one.
19. If the language used in Explanation I to Section 2 (2) of the Act is examined in the light of the principles indicated above it will be apparent that the statutory fiction employed therein read with the use of the words 'in the absence of any such report, record of assessment' contained therein leave no manner of doubt that in the presence of an assessment of a building subject to assessment, only it is this date at one which has to be taken to be the date which furnishes the starting point for computing the period of exemption and the other factors such as the date of occupation etc. lose all significance. As a matter of fact the effect of the words 'in the absence of' as used in Explanation I to Section 2 (2) was noticed by the Apex Court in its decision in the case of Om Prakash Gupta v. Digvijendra Singh, reported in AIR 1982 SC 1230 (2), which has the case decided by a Bench of three Hon'ble Judges of the Supreme Court. In that case the building in question was shown to have been occupied on 16-6-1967, however, it was assessed for the first time on 1-4-1968. The question which had come for consideration was as to whether in the presence of the assessment dated 1-4-1968 the date of occupation of the building i.e. 16-6-1967 could be taken to be the date providing the starting point for computing the period of exemption. The Hon'ble Supreme Court while interpreting the explanation to Section 2(2) of the Act observed that primarily the language employed is the determining factor of the intention of the Legislature. It was further observed that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. The Apex Court found that the language of sub-section (2) of Section 2 of the Act was implicit and unambiguous and further that it was not capable of two interpretations. Having come to the aforesaid conclusion, the Apex Court observed that the date of occupation could be taken to be the date of completion of the construction only when there was no report or record of the completion of the construction or no assessment thereof. Since in that case the assessment was there it was held that the date of the first assessment was to be deemed to be the date of completion of the construction. It is obvious from a perusal of the aforesaid decision that in the presence of the first assessment the date of occupation of the building during the period anterior to the first assessment was held to be of no significance whatsoever."
44. Now, in the instant case, the Trial Court has compared various assessment orders filed by the petitioner and respondent no.1 in a table which is reproduced herein-below:-
क्रमांक पुराना नo.
नया नo.
समयावधि द्वारा प्रस्तुत
1. 14 416 1.4.1967 से 31.3.1972 प्रतिवादी
2. 416 497 1.4.1972 से...
प्रतिवादी
3. 497 151 1.4.1986 से 31.3.1993 वादी
4. 165 106 1.4.1998 से...
वादी
45. The Trial Court recorded a finding that assessment order at Serial No.1, 2 & 3 shows that there was an old house and only three shops were shown in those assessment orders whereas, perusal of the assessment order at Serial No.4 shows that there was newly constructed house and 12 shops. The Trial Court in detail considered that in the assessment order shown at Serial No.3 for the period of 01.04.1986 to 31.03.1993, the annual value of the property was shown as Rs.21,000/- whereas assessment order shown at Serial No.4 for the period commencing from 01.04.1988 shows the enhanced annual value of the property as Rs.50,000/-.
46. The Trial Court further recorded a finding that P.W.1 in his affidavit in para-13 has categorically stated that the first assessment of the market was done by Nagar Palika Vrindan Mathura with effect from 01.04.1998, and this new market was never assessed prior to that. The Trial Court further recorded that in respect to the assessment shown at Serial No.4 in the table, the petitioner has not filed any documents rebutting the same.
47. The Trial Court further held on the basis of receipts filed by the petitioner, he admits that the shop number 106/2 is under his tenancy. The Trial Court in detail considered each and every aspect of the matter and concluded that the shop was a new construction and provisions of U.P. Act No.13 of 1972 are not applicable.
48. In view of the law enunciated in the aforesaid cases of Om Prakash Gupta (supra) and Raj Kumar Sharma (supra) referred to above, this Court is of the view that the first assessment shall be treated to be the date of starting point for computing the period of exemption from the U.P. Act No.13 of 1972, and in the instant case, the finding of the Trial Court affirmed by the Revisional Court that the first assessment of the shop was dated 01.04.1998 is a finding of fact based upon proper appreciation of evidence on record. The Trial Court as well as Revisional Court has not committed any error in holding that provisions of U.P. Act No.13 of 1972 are not applicable in the present case.
49. Now, coming to the submissions of learned counsel for the petitioner that respondent no.1 has failed to prove her case inasmuch as she did not appear in the witness box to prove her case, and as per Section 2(2) of the U.P. Act No.13 of 1972 if the landlord, who got the construction raised, is alive then he or she has to come before the Court and tell the actual date of construction is concerned, this Court may note that in the instant case, P.W.1-Pradeep Kumar Agrawal is the son of landlady/respondent no.1 and power of attorney was given by landlady/respondent no.1 in favour of P.W.1. The genuineness of power of attorney is not disputed by the learned counsel for the petitioner. Further, P.W.1 has deposed only those facts which have been in his knowledge.
50. Perusal of the affidavit and cross examination of P.W.1 reflects that PW1 has categorically stated that after demolition of old shops, new construction was raised before him. In the instant case, the P.W.1 is the son of landlady/respondent no.1 and has lived with her and therefore, it is obvious that any demolition or new construction of the shops must have taken place before him, and therefore, he had personal knowledge about new construction of the shop raised after demolition of old shops.
51. So far as the judgement of the Apex Court in the case of Janki Vashdeo Bhojwani (supra) is concerned, it was a case where appellants claimed that they had contributed towards the purchase of property from independent source of income. The fact as to whether the appellants contributed towards purchase of property was exclusively within the knowledge of appellants and in such context, the Apex Court held that the said fact could not be proved by the power of attorney holder. The judgement in the aforesaid case is distinguishable and not applicable in the facts of the present case inasmuch as P.W.-1 has stated only those facts which have been in his knowledge being son of respondent no.1.
52. So far the judgement of the Apex Court in the case of Vidhyadhar (supra) is concerned, it was a case where defendant no.1 pleaded certain facts in the written statement but he did not come forward to prove the facts stated in the written statement by entering into the witness box. In such context, the Apex Court held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by other side, a presumption would arise that the case set up by him is not correct. The facts in which the law has been laid down in the aforesaid case are different from the facts in the present case, and therefore, the said judgement of the Apex Court does not come in aid to the petitioner.
53. Now, so for as the judgement of the Apex Court in the case of Man Kaur (supra) is concerned, the Apex Court in paragraph 18 has summarised as to who should give evidence in regard to matters involving personal knowledge. Paragraph no.18 of the said judgement is reproduced herein-below:-
"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplate the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm a parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
54. In the context of the present case, paragraph 18(g) of the aforesaid judgement of Apex Court is relevant and carves out an exception that where a close family member is entrusted to manage, transact and look after the affairs of a party, and who has been given power of attorney, in such cases, it may be possible to accept the evidence of such attorney. The Apex Court further clarified the example of such attorney holders i.e. a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
55. In the present case, the perusal of power of attorney reflects that respondent no.1 in the power of attorney has stated that she being an old lady and was suffering from various ailments, therefore, was unable to look after and manage the various litigation pending in various Courts, and therefore, she executed the power of attorney in favour of P.W.1. The correctness of the fact stated in power of attorney has not been disputed by the learned counsel for the petitioner.
56. The learned counsel for the petitioner has submitted that paragraph 18(g) of the judgement of Apex Court in the case of Man Kaur (supra) would not help the respondent no.1 as the power of attorney does not state that prior to the date of institution of suit, P.W.1 was looking after the affairs of the family. In the opinion of the Court, the said contention of learned counsel for the petitioner is untenable for the reason that the fact that respondent no.1 was an old lady and was suffering from various ailments had not been disputed by the petitioner, and further P.W.1 had stated only those facts which were in his knowledge being the son of respondent no.1 as it is obvious that P.W.1 had been living with her mother since childhood, and therefore, the fact with regard to the demolition and construction of new shop had taken place before him and had been in his personal knowledge and such fact is not a fact which was in exclusive knowledge of respondent no.1, and no other person had knowledge about the said fact.
57. In view of the aforesaid fact, this Court is of the view that respondent no.1 has proved her case, and the contention of learned counsel for the petitioner that respondent no.1 has failed to prove her case is rejected.
58. The reliance placed by the learned counsel for the petitioner on the judgement of the Apex Court in the case of Ram Saroop Rai (supra) that if the landlord who got the construction raised was alive then he or she has to tell the actual date of construction and aid of explanation can be taken only when the original landlord is not alive is concerned, in the said case the Apex Court has held that the landlord who seeks exemption must prove that exception, and it has also been held that as between the landlord and tenant, the owner of the building must tell the Court when the building was constructed and not the tenant thereof.
59. However, in the said case, the Apex Court also held that it is only the municipal record which could throw light on the date of construction of the building.
60. The Apex Court in the said case gave weightage to the documentary evidence as the oral evidence in the case would be second hand testimony, and therefore, the Apex Court remanded the matter as the municipal records bearing on the completion of construction may throw conclusive light. Paragraph 8 of the aforesaid judgement is reproduced herein-below:-
"8. Unfortunately, it is not possible for the purchaser-respondent of the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so when exactly the completion took effect. The municipal assessment record produced in the Court merely states "increased assessment". It may suggest the existence of en assessment which has been increased or it may perhaps be argued that when the building was re-reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second-hand testimony. Even the recital in the rent deed that there was a new construction in 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute."
61. Thus, the Apex Court in the case of Ram Saroop Rai (supra) has observed that the statute makes it clear that reliance upon the municipal records rather than on the lips of witnesses is indicated to determine the date of completion and nature of the construction.
62. The Coordinate Bench of this Court in the case of Vijay Laxmi Jain (supra) has held that the Legislature has intended to give weightage to the municipal records rather than on lips of witnesses to determine the date of completion and nature of construction. Paragraph 5 of the said judgement is reproduced herein below:-
"5. Before embarking upon the discussion on the issue and sitting of the decisions, aforesaid, it would be proper for clear understanding to quote, in extenso, the provisions of Section 2 (2) of the Act No.XIII of 1972, which run as follows:
"(2) Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.
Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Eyam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter:
Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed.
Explanation 1-For the purposes of this Section-
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the Local Authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time:
Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants:
(b) 'construction' includes any new construction in place of an existing building which has been wholly or substantially demolished:
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition."
The object of the aforesaid provision, it was held in Samundri Devi's case (supra), is to ensure a period of holiday for the landlord to encourage building activity. There is nothing in the scheme of the Act No.XIII of 1972, particularly, having regard to the objects with which it has been enacted to suggest that assumption of a date of completion of construction, different from the one provided for in Explanation 1 to Section 2 (2) of the Act No.XIll of 1972 would sub-serve the objects of the Act or that fixing in date of completion of the construction of a building in terms of Explanation 1 would, in any manner, defeat the object of the Act. Moreover, the mere fact that the deeming provision is expressed to be an explanation, will not alter its basic character nor limit it to a mere Explanation of substantive provision. It was further observed that the Explanation 1 to Section 2 (2) contains a deeming clause. It creates a legal fiction. The language in which Explanation 1(a) is couched is clear. In effect, it says that for purposes of sub-section (2) of Section 2, the construction of a building shall be deemed to have been completed (a) on the date on which its completion is reported to or otherwise recorded by the Local Authority: and (b) in case of a building subject to assessment the date on which the first assessment thereof comes in effect, (c) and, where there is no report, record or assessment, the date on which it is actually occupied. This is the sequence in which the date of completion of construction is to be deemed for the purposes of Section 2 (2). The legislature having regard to the fact that the building was to be kept out of the purview of the provisions of the Act No. XIII of 1972 for a specified period from the date of completion of its construction wished to ensure that the said date should be known with definiteness and, in order to achieve this it engrafted a legal fiction in respect of the said date. In other words, irrespective of what the actual date of completion of construction may be, the date, for purposes of Section 2 (2), would be the one determined with reference to the deeming provisions contained in the Explanation. Where, irrespective of the reality, the Legislature has unmistakably provided for assumption of the date of completion of the construction of a building in Explanation 1 to Section 2 (2) of the Act No.XIII of 1972, it is immaterial whether the landlord admits or avers to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away that principle will be wholly inapplicable to a case in which the legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality. Though in the instant case, the landlord in the release proceeding under Section 21(1) (a) of the Act No.XIII of 1972, asserted in unerring terms that the tenanted accommodation came into being in the year 1970 the controversy whether the Act No.XIII of 1972, applies or not is to be determined with reference to the parameters laid down in Section 2(2) read with Explanation 1. The admission or assertion of either of the parties would hardly be of any consequence."
63. In view of the law enunciated in the cases of Ram Saroop Rai (supra) and Vijay Laxmi Jain (supra), non-appearance of respondent no.1 to state the date of construction is not material as the law is clear that it is the date of first assessment which shall be the starting point for counting the period for the purpose of exemption from the U.P. Act No.13 of 1972. Therefore, the argument of learned counsel for the petitioner that respondent no.1 ought to have appeared before the Court to state the date of construction is misconceived and not sustainable in law.
64. Now, coming to the submission of learned counsel for the petitioner that the plaint does not disclose the date when the shop was constructed and when the first assessment was done, and since the Trial Court did not decide the said issue, therefore, the judgement and order passed by the Subordinate Court are not sustainable. In this respect, it is relevant to mention that by amendment, respondent no.1 has stated in para 3अ and 3ब of the plaint with regard to the demolition and construction of shop. Para 3अ and 3ब of the plaint are reproduced herein below:-
"3अ यहकि इस वाद में जिस दुकान का विवाद है। यह दुकान वादी द्वारा कुछ समय पूर्व ही पुराने निर्माण को पूरी तरह तोड़कर समाप्त कर नयी बनायी गयी थी। अतः इस सम्पत्ति पर उत्तर प्रदेश एक्ट 13 सन 1972 के प्राविधान लागू नहीं होते हैं। इस प्रकार प्रतिवादी की किरायेदारी नयी बनी दुकान की बावत रही है कि जो किरायेदारी बजरिये नोटिस धारा 106 समाप्त की जा चुकी है।
3ब यहकि प्रतिवादी अपने आपको जिस पूर्व दुकान में किरायेदार होना जाहिर करता है उस पुरानी दुकान की किरायेदारी प्रतिवादी ने सरेण्डर कर दी। दुकान का कब्जा वादी को प्रदान कर दिया। वादी द्वारा उस दुकान को तोड़ दिया गया और नयी बनी दुकान के अनुसार किरायेदारी प्रतिवादी को दी गयी कि जिस नयी किरायेदारी का तोड़ी जा चुकी दुकान की किरायेदारी से कोई सम्बन्ध नही है।"
65. In this context, it is also relevant to mention that P.W.1 in his affidavit has categorically stated that the old shop was demolished and first assessment of the shop was done w.e.f. 01.04.1988. Paragraph nos.11 to 15 of the affidavit of P.W.1 are reproduced herein below:-
"11. यह कि वादिनी द्वारा प्रतिवादी के पिता की पूर्व किरायेदारी वाली दुकान एवं अन्य सम्पत्ति को तुडवाकर एक नई मार्केट बनवायी कि जिसके वर्तमान में 13 दुकाने बनी है इसी नई मार्केट में से एक दुकान प्रतिवादी को नये किरायेदार के रूप में किराये पर दी गयी।
12. यह कि प्रतिवादी के पिता की पूर्व किरायेदारी वाली दुकान विवादित स्थान से अलग स्थान पर थी और अलग साइज की थी उक्त पुरानी दुकान में प्रतिवादी को कभी भी किराये का अधिकार उत्पन्न नहीं हुआ था प्रतिवादी के पिता की मृत्यु वर्ष 2013 में ही हुयी थी।
13. यह कि नगरपालिका वृन्दावन द्वारा उक्त नई मार्केट का प्रथम असिसमेन्ट 01.04.1998 से किया गया है इस नई मार्केट का इससे पूर्व कोई असिसमेन्ट नहीं था।
14 यह कि यह सरासर गलत है कि इस नई मार्केट का निर्माण वर्ष 1981 में हो गया हो एवं यह भी गलत है कि प्रतिवादी की किरायेदारी में सत्य प्रकाश शर्मा के बराबर स्थित कोई दुकान कभी भी रही हो।
15. यह कि विवादित दुकान एवं प्रतिवादी के पिता की पूर्व किरायेदारी वाली दुकान की जमींन दुकान का साईज किराये की दर शर्त किराया, किरायेदार का नाम आदि सब कुछ अलग-अलग है और दोनो का एक दूसरे से कोई सम्बन्ध नहीं है।"
66. The respondent no.1 has categorically pleaded that the old shop was demolished and a new construction was raised and tenancy of old shop was surrendered and new shop was constructed and petitioner was given a newly constructed shop.
67. That law is settled that it is not the form of the pleading, it is the substance of the pleading which is material as the object of the pleading is to communicate the other party the case of a party. In this respect, it would be useful to reproduce paragraph 6 of the judgement of Apex Court in the case of Ram Sarup Gupta Vs. Bishun Narain Inter College & Others (1987) 2 SCC 555:-
"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Chandramaul (1966) 2 SCR 286 a Constitution Bench of this Court considering this question observed :
If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another."
68. In the light of the principles laid down by the Apex Court in the aforesaid judgement, this Court finds that there was substantial pleading which communicates the case of respondent no.1 to the petitioner that the old shop which was in the tenancy of the petitioner was demolished and a new shop was constructed. The respondent no.1 proved the same by documentary evidence that the shop was a newly constructed shop, the assessment of which was done for the first time by assessment order dated 01.04.1998.
69. It is also pertinent to note that the ground with regard to lack of pleading has been taken by the petitioner in the revision, but the order of Revisional Court reflects that the said ground was not pressed before the Revisional Court inasmuch as Revisional Court did not deal with the said issue.
70. The petitioner in the writ petition has no where stated that the ground of lack of pleading in the plaint was pressed before the Revisional Court and the same was not considered by the Revisional Court.
71. In such view of the fact, it is not open to the petitioner to raise such a plea at this stage when he did not press the said plea before the Revisional Court.
72. Now coming to the contention of learned counsel for the petitioner that respondent no.1 in the affidavit filed in Original Suit No.544 of 2007 instituted by the petitioner admitted the fact that the shop was constructed in the year 1981, and Trial Court had failed to consider the said statement of respondent no.1 and thus, the finding of the Trial Court with regard to new construction is perverse is concerned, this Court may note that the petitioner did not get any issue framed on the point as to what is the effect of alleged admission by respondent no.1 in Original Suit No.544 of 2007 in the present case, and whether that admission is binding upon the respondent no.1. The question as to whether the alleged admission of respondent no.1 in Original Suit No.544 of 2007 can be read in the present proceeding or not is a question of fact since to ascertain this question, the testimony of parties are necessary to appreciate as to whether such pleading amounts to admission by the respondent no.1 that the shop was constructed in the year 1981 and in what context such admission was made, and whether that admission would be binding as res-judicata or not.
73. Since, no such issue was got framed by the petitioner before the Trial Court on the aforesaid aspect, therefore, the said issue cannot be considered by this Court at this stage under Article 227 of the Constitution of India since the said issue is a question of fact which requires evidence by the parties. Therefore, the aforesaid contention is also misconceived.
74. Now coming to the submission of learned counsel for the petitioner that the Revisional Court has erred in law in rejecting the amendment application of the petitioner, this Court may note that by the amendment application petitioner wanted to incorporate para 35A in the written statement alleging that the assessment of 1998 filed by the respondent no.1 is forged and fabricated in collusion with employees of Nagar Palika which fact is established from the original assessment of 1998 issued on 30.04.2008, and therefore, incorporation of the amendment is necessary. The relevant extract of the amendment application containing the reason on which the amendment was sought is reproduced herein below:-
"निवेदन है कि प्रतिवादी रिवीजनकर्ता की ओर से दिनांक 04.09.2017 को सन 1993 से सन 1998 का नगरपालिका असिसमेन्ट न्यायालय में दाखिल किया गया वस्तुतः उक्त प्रलेख अन्य कागजात में मिल जाने के कारण अधीनस्थ न्यायालय में दाखिल नहीं हो सका था जो माननीय न्यायालय द्वारा आदेश दिनांक 05.09.2017 के जरिये रिकार्ड पर लिया गया। सौभाग्य से प्रतिवादी रिवीजनकत्म को 1998 के असिसमेन्ट की दिवानी 07.08.2007 को प्राप्त की गयी सत्य प्रतिलिपि पराने कागजात में आज ही प्राप्त हयी है इसी कड़ी में 30.04.2008 को जारी हुए सन 1998 के असिसमेन्ट की सत्य प्रतिलिपि प्राप्त हयी है जिससे यह अन्तिम रूप से सिद्ध हो जावेगा कि वादी रेस्पोन्डेन्ट की ओर से नगर पालिका कर्मियों से मिलकर सूची 74ग से फर्जी व कूटरचित प्रलेख तैयार कर सन 1986 से 93 व सन 1998 का असिसमेन्ट दाखिल किया है उक्त दोनो ही प्रलेख प्रार्थना पत्र के साथ अलग से न्यायालय में दाखिल किये जा रहे है तथापि इस सम्बन्ध में प्रतिवाद पत्र में संशोधन होना भी आवश्यक है ताकि मुकदमें में निहित विवाद का सम्यक रूप से निस्तारण हो सके।"
75. The reason stated in the amendment application does not reflect that any plausible ground has been made out by the petitioner for allowing the amendment application at the revision stage inasmuch as there is no pleading in the amendment application as to why petitioner did not file the said application for amending the written statement before the Trial Court.
76. It is also pertinent to note that the fact which the petitioner wants to incorporate through amendment application at the revision stage was well within his knowledge, and there was no reason for the petitioner not to incorporate this fact for about seventeen years in the written statement.
77. The Revisional Court though has stated that it has no power to entertain the amendment application at this stage, but this Court is of the view that petitioner has failed to make out any case inasmuch as petitioner has failed to explain the delay of about 11 years in filing the amendment application, and in case the amendment application was allowed, that would have resulted a trial de-novo which cannot be permitted after 11 years of the contest of litigation inasmuch as the question whether assessment order of 1998 filed by respondent no.1 is a forged and fabricated document can be determined only after framing of issue and evidence led by the parties.
78. Though, learned counsel for the petitioner has relied upon two judgements in the cases of Surjeet Singh (supra) and Ramesh Chandra (supra) to contend that Revisional Court has power to allow the amendment application, and therefore, wrong reason has been given by the Revisional Court in rejecting the amendment application, however, the aforesaid contention of learned counsel for the petitioner is not accepted for the reason that the amendment sought by the petitioner does not deserve to be allowed in the absence of any plausible explanation given in the amendment application for not filing the same for the last 11 years seeking amendment in the written statement.
79. Thus, for the reasons given above, the present petition under Article 227 of the Constitution of India lacks merit and is hereby dismissed with no order as to costs.
Order Date :- 4.7.2025 Sattyarth