Swami Nath vs Ajay Kumar and another

Rakesh Tiwari, J.—The respondents have been served by registered post as well as by Dasti notice. Service on the respondents has been deemed sufficient vide order dated 26.5.2010. In the circumstances, the case is taken up for admission.

Heard Counsel for the petitioner and perused the record.

The petitioner filed S.C.C. Suit No. 118 of 1999 against the respondents for ejectment and arrears of rent for the period 1.8.1999 to 30.9.1999 in respect of two shops. The respondenttenant contested the suit and filed their written statement, to which replication was filed by the petitioner. As the respondenttenant did not deposit any rent nor complied with provisions of Order XV, Rule 5, C.P.C., their defence was struck off. The order striking off defence was also confirmed by the revisional Court.

Judge, Small Cause Court, Varanasi decreed the suit vide judgment and decree dated 11.10.2007 directing the respondenttenant to vacate the shops in question within 30 days, handover peaceful possession to the plaintiff and pay arrears of rent etc. till the date of handing over possession of the shops in dispute.

The respondenttenant filed Revision No. 47 of 2007 challenging the order and judgment dated 11.10.2007, which has been allowed by Additional District Judge, Court No. 1, Varanasi vide judgment and order dated 1.9.2008 remanding the matter to the Trial Court to decide it afresh.

Counsel for the petitioner submits that admittedly from the record it is apparent that the property in dispute is a new construction built in the year 1984, in which respondenttenant had been inducted as tenant with effect from August, 1994. He vehemently argued that respondenttenant has not paid even a single penny of rent, as such the Trial Court vide order dated 10.1.2007 struck off defence of respondenttenant, whose tenancy has been determined under section 106 of the Transfer of Property Act.

The Trial Court framed the following three issues in the suit:

Whether provisions of Act No. 13/1972 are applicable to the shops in question?

Whether tenancy of respondenttenant could be terminated by notice under section 106, Transfer of Property Act ?

Whether respondenttenant committed default in payment of rent and without permission of the landlord, affected material changes in the accommodation ?

Issue No. 1 was decided holding that the shops in question were newly constructed, as such the provisions of Act No. 13/1972 were not applicable.

With regard to issue No. 2, the Trial Court found that notice dated 1.9.1999 was served upon the respondents terminating his tenancy under section 106 of the Transfer of Property Act. The said notice was also proved by the petitioner before the Trial Court. It also appears from record that the respondenttenant replied the notice vide their reply dated 6.9.1999. The Trial Court decided issue No. 2 holding that there was legal termination of tenancy.

Lastly issue No. 3 has been decided by the Trial Court holding that respondents are liable to be evicted from the shops in dispute.

Revision No. 47 of 2007 filed by the respondenttenant was allowed and the matter was remanded to the Trial Court for determination as to whether shops in question in possession of the respondenttenant were a new construction or not.

This decision by the revisional Court appears to be in the teeth of admissions of the respondenttenant that it was a new construction and that they had come in tenancy in August, 1994. This fact is also supported by the averments made in paragraph No. 17 of written statement filed by respondenttenant. Aggrieved by the remand order, petitionerlandlord has come up in this petition.

Sri A.K. Singh, Counsel for the petitioner has relied upon paragraph No. 26 of the decision rendered by the Apex Court in Epoch Interrepots v. M. V. Won Fu, AIR 2003 SC 24 wherein the Apex Court held that admissions made by a party in Court are binding upon it. He submits that in view of fact apparent from the record that respondenttenant had taken the shops in August, 1994 immediately after its construction, is sufficient to hold that provisions of Act No. 13/1972 were not applicable and the revisional Court has committed an error in law apparent on the face of record.

After hearing Counsel for the petitioner and on perusal of the record as well as the judgment cited by him, it appears that there is force in the submission of the learned Counsel.

The revisional Court has failed to take into considerations the admissions of respondenttenant that they were tenants in newly constructed shops to which provisions of Act No. 13/1972 were not applicable.

For the reasons stated above, the impugned order dated 1.9.2008 passed by Additional District Judge, Court No. 1, Varanasi in S.C.R. 47/2007 appended as Annexure No. 1 to the writ petition is set aside and the judgment and order dated 11.10.2007 passed by the Trial Court dated 11.10.2007 is upheld.

The writ petition stands allowed. No order as to costs.