Mohammad Idris vs Naushad Ahmad

Servesh Kumar Gupta, J.

Having heard the rival contentions, it transpires that Original Suit No. 415/94 launched by the plaintiff (in the capacity of receiver appointed by the Court) against Mohammad Idris seeking eviction from a small portion of the land, which seems to be a part of a big premises as referred the suit property in the schedule mentioned in the last of the plaint. The defendant Mohammad Idris, who succeeded in the property in question after the death of his father Imam Ahmad, pleaded that the suit could not have been instituted in the regular civil court because the premises in question was a building given on rent to his father. So, the proceedings under Section 20 of the Rent Control Act in the Court of Judge, Small Causes should have been initiated. This suit was dismissed by the trial court on 27.7.2001, but its judgment was overturned in appeal No. 132/2001 on dated 12.12.2002. Feeling aggrieved, the tenant Mohammad Idris has come up before this Court in second appeal. Following substantial questions of law were accepted to have been formulated at the time of admission:

(1) Whether the Civil Court has jurisdiction to try the suit which is filed for the rent and ejectment against the tenant?

(2) Whether the suit is barred by Section 29A of U.P. Act No. 13 of 1972?

The first substantial question of law is based on the premise that the rented premises was in the shape of a building. So, the Civil Court was not having jurisdiction and the suit ought to have been filed in the Court of Judge, Small Causes. It was contended that even in the times of his father Imam Khan, some correspondences/posts were received at the address of the premises, which reflects that the property in question was a dwelling place. It was not merely open land and once it is shown that the property in question was a dwelling place, it is enough to presume that it was a roofed structure or the building, as has been envisaged under the UP Rent Control Act.

This argument of the learned Counsel for the appellant has been refuted by the learned Counsel of the respondent by making the submissions that the rented place was simply a small plot of vacant land and this tin roofed structure in the shape of a kothi (if any) was erected by Imam Khan at his own expenses and this argument is supported by the rent receipts which have been filed on the record bearing the signature of the defendant Mohammad Idris. These rent receipts show that the same were for the open plot in property number 44/13 Gandhi Road, Dehradun. This way, it is sufficient to prove that the rented place was not a roofed structure but only a small piece of vacant land. Being so, the suit cannot be held to be barred from the jurisdiction of the Civil Court. So, this substantial question No. 1 is answered accordingly.

As regards the bar of Section 29A of the UP Rent Control Act, suffice it to say that this bar is not applicable to provide any protection because it is the case of the tenant, as has been pleaded, that it was not the vacant land but the roofed structure which was taken on rent by his father. Further, the necessary expenses for raising the constructions had been incurred by him has not been proved nay the consent of the landlord has also not been proved. So, this substantial question of law is also answered against the second appellant.

In view of what have been stated above, this appeal has not force. It is hereby dismissed. Let the lower court record be sent back.