ASHOK BHUSHAN, J. - (1.) This appeal has been filed against the judgment dated 26.08.2014 of High Court of Uttarakhand in Civil Revision No. 32 of 2010 by which judgment High Court has allowed the Revision and set aside the order passed by the Judge, Small Causes Court directing the eviction of the respondent-tenant with recovery of rent and damages. The landlord aggrieved by the judgment has come up in this appeal.
(2.) Brief facts of the case, necessary to be noted for The appellant is the owner of Shop No. 46 Adarsh Gram Chauhan Market, Yatra Bus Station, Rishikesh. The respondent is carrying on business of clothe merchant in the shop as tenant. A notice dated 07.09.2001 was issued that respondent has not paid the rent of above-mentioned shop from December, 2000 till present date. The rate of rent was claimed as Rs. 1500/- per month. Notice was given to pay the whole outstanding rent with interest within one month from the receipt of the notice, failing which tenancy shall be treated as terminated. After prescribed period damages at the rate of Rs. 50/- per day were also claimed. As notice was not replied, the appellant filed a Small Causes Case No. 32 of 2001 in the Court of Additional District Judge praying for recovery of rent with compensation and expenses and any other relief. The written statement was filed by the respondent where he denied the rate of rent to be Rs. 1500/- per month. It was stated that the rate of rent is only Rs. 250/- per month and since October 1994, he is carrying on business of clothe. It was stated that the plaintiff has already received the rent for the month of August, 2001 but he did not issue any receipt. Appellant has stopped to receive the collection of rent from September, 2001. The respondent forwarded the total rent of Rs. 1250/- for the period of September, 2001 to January, 2002 at the rate of Rs.250/- per month through money order which was denied, stating that 'it is denied to accept due to this amount is less than the actual amount'. Respondent pleaded that premises is covered by U.P. Act No. 13 of 1972. Trial Court by order dated 13.05.2004 framed ten issues. An application for amendment was filed by appellant for adding a prayer 'that the plaintiff may be given possession of disputed shop which is stated in the list of property annexed at the end of the plaint after evicting the respondent from the above shop'. The amendment application was although rejected by the Trial Court on 25.4.2007, but the High Court by an order dated 05.08.2008 allowed the amendment application subject to payment of cost of Rs. 3000/-.
(3.) High Court also allowed three week's time to respondent to file amended written statement. Additional counter statement was filed by the respondent. Trial Court framed an additional issue on 20.01.2009 which is to the following effect: "1. Whether the plaintiff has waived to oppose for eviction in his notice dated 07.09.2001? If yes, whether the required relief added by the plaintiff is barred to the limitation as stated in the additional counter statement." ;